By Jones Osborn II

It is not unusual for a landowner to sell his residential acreage, keeping a corner for future commercial use. Because homeowners frequently object to nearby commercial rezonings, it might seem like a good idea to put a provision in each contract or perhaps in a deed restriction prohibiting the future owners of the residential property from objecting to the future commercial rezoning of the retained property.

Unfortunately, this doesn't work.

Under Arizona law, contracts or deed restrictions limiting a person's right to object to a rezoning, the issuance of a building permit, or any other governmental act affecting real property are against public policy and are unenforceable. The Arizona Legislature feels that every citizen should have the right to appear and be heard when governmental decisions are being made which affect real property, regardless of whether that person has previously agreed to remain silent or to support the action.

Conclusion. Agreements not to object to rezoning are unenforceable. This leaves the developer or landowner with two choices if he wants to protect a potential commercial use on his remaining property. One, he can attempt to get his zoning before selling the surrounding property. Two, he can put a notice in the deed restrictions informing the residential purchasers that the remaining property is intended for future commercial use. The latter approach certainly does not guarantee success and does not keep the neighbors from objecting; however, it does deprive them of the often-heard (and often effective) argument that they had no idea when they bought their homes that commercial uses were planned in the vicinity.

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The statutes referred to above are A.R.S. §§ 32-2181(I) and -2195(I).