PracTacPrep
New Member
- Jurisdiction
- Arizona
Outdated and Irrelevant HOA CCR's (Covenants, Conditions, Restrictions)
What are my options to get this challenged and removed sooner rather than later?
Here's the scenario:
Because of this, while the HOA carefully avoided saying I could not run a business out of my home, they did say they couldn't provide me a statement saying that I COULD. My concern is the ATF may or may not ask, and if they ask, it could result in my being denied the FFL.
The HOA also stated:
For clarity, according to the HOA, it's not 75% of those that are voting, it's 75% of actual homeowners and they only get about 15% to ever vote (info from them in an email).
Based on what I know, it seems to me that these CCR's have NEVER been updated in over 22 years.
MY PROBLEM
As I seek to get all possible approvals in place before ATF inspection for the FFL, in my interactions with the Community Association Manager, she highlighted the following part: "... No gainful occupation, profession, trade or other non-residential use shall be conducted thereon."
While avoiding clearly saying I cannot run a business out of my home, HOA stated:
If the ATF doesn't care, doesn't ask about HOA guidelines, no harm no foul. BUT, if the ATF asks about HOA guidelines, this will be an obstacle. I'm trying to avoid that obstacle.
In the most extreme scenario, this is how I fear the ATF license investigator may interpret the above HOA CCR's (as written) as restricting the following:
Given de facto un-enforcement of this provision, outdated language, and potential restriction of income, what are my options to address this?
What are my options to get this challenged and removed sooner rather than later?
Here's the scenario:
- I've lived in this community since I bought the home new in 2001
- I'm applying for a Federal FireArms Type 1 License to sell new items (no manufacturing, assembly) as an augmentation to a business I already have
- Initially, I would do this at home, an "at-home FFL" (with other long term intentions irrelevant to the current scenario)
- I have a state transaction privilege tax license ("TPT", in place since 2017)
- I have applicable city of Mesa licenses, and would get the "secondhand dealer" IF NEEDED (again, other long term intentions irrelevant to the current scenario)
- I have zoning approval from the City of Mesa, which mandates compliance with with their zoning regulations on visitor parking, signs, long term storage, etcetera
"Section 8. 1 Permitted Uses and Restrictions - Residential. The permitted uses, easements, and restrictions for all Property covered by this Declaration shall be as follows:
(a) Single Family Residential Use. All Lots shall be used, improved and devoted exclusively to single family residential use. No gainful occupation, profession, trade or other non-residential use shall be conducted thereon..." (I can send the whole document)
(a) Single Family Residential Use. All Lots shall be used, improved and devoted exclusively to single family residential use. No gainful occupation, profession, trade or other non-residential use shall be conducted thereon..." (I can send the whole document)
Because of this, while the HOA carefully avoided saying I could not run a business out of my home, they did say they couldn't provide me a statement saying that I COULD. My concern is the ATF may or may not ask, and if they ask, it could result in my being denied the FFL.
The HOA also stated:
"the CCR's were put in place when the community is developed and cannot be changed without 75% of the homeowners voting to amend them."
For clarity, according to the HOA, it's not 75% of those that are voting, it's 75% of actual homeowners and they only get about 15% to ever vote (info from them in an email).
"... Changing the CCR's requires 75% of the members to vote. I'm sorry but there is no easy way to change the CCR's. It's a process that takes several years to accomplish. That's one of the reasons some of the information is no longer relevant."
Based on what I know, it seems to me that these CCR's have NEVER been updated in over 22 years.
MY PROBLEM
As I seek to get all possible approvals in place before ATF inspection for the FFL, in my interactions with the Community Association Manager, she highlighted the following part: "... No gainful occupation, profession, trade or other non-residential use shall be conducted thereon."
While avoiding clearly saying I cannot run a business out of my home, HOA stated:
"... The Board cannot approve something which is against the CCR's if that is what you are asking. They cannot put anything in writing to give you approval for something that is clearly against the CCR's."
If the ATF doesn't care, doesn't ask about HOA guidelines, no harm no foul. BUT, if the ATF asks about HOA guidelines, this will be an obstacle. I'm trying to avoid that obstacle.
In the most extreme scenario, this is how I fear the ATF license investigator may interpret the above HOA CCR's (as written) as restricting the following:
- Working from your home (occupation) for employment (gain) is NOT allowed
- Working from home for your personal business, i.e. working for yourself (profession, trade, etc) is NOT allowed
- Potentially "gainful" services conducted out of your home, like in home childcare, music lessons, swimming lessons, tutoring, etc., are NOT allowed
- The CCR's have not been updated to reflect modern times and modern technologies
- This portion of 8.1 is not and has not been enforced; it's obvious and apparent that much, if not most of the neighborhood has worked from home for most of 2020 and all of 2021 due to COVID-19 restrictions with no restriction from the HOA
- Given the previous unenforced regulation through non-action, it appears to be the de facto rule that that it is acceptable to work from home, run a business from your home, perform services for gain from your home
- Also, multiple of my neighbors run their own business from their home and have for years
- It's happening all through the community and not enforced
- Enforcement of this is a form of "deprivation of means" (my own term, I don't know the proper legal term)
Given de facto un-enforcement of this provision, outdated language, and potential restriction of income, what are my options to address this?