The public role in establishing private residential communities: Towards a new formulation of local government land use policies that eliminates the legal requirements to privatize new communities in the United States

Urban Lawyer

Volumn 38, Issue 4, 2006, Pages 859-948

  Siegel, Steven ^a,b,c,d  

^a School for International and Public Affairs   (United States)

^b NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

^c Howard Hughes Medical Institute   (United States)

^d and Social Sciences   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

HOUSING MARKET; LAND USE PLANNING; LOCAL GOVERNMENT; PRIVATIZATION; PUBLIC SECTOR; RESIDENTIAL DEVELOPMENT; ZONING POLICY;

NORTH AMERICA; UNITED STATES;

EID: 33847195778     PISSN: 00420905     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (452)

1. In 1960, there were an estimated 500 community associations in existence in the United States. See C. James Dowden, Community Associations and Local Governments: The Need for Recognition and Reassessment, at 27 (U.S. Advisory Comm'n on Intergovernmental Relations, Residential Community Associations: Private Governments in the Intergovernmental System?, 1989) [hereinafter U.S. Advisory Comm'n]. Today, an estimated 286,000 community associations are in existence, which are home to one in five Americans. Community Associations Institute, Industry Data, http://www.caionline.org/about/facts.cfm (last visited Sept. 17, 2006). Although the foregoing contemporary data reflect the existence of large numbers of nonterritorial community associations in high-rise buildings in urban areas, fully one-half of the number of community associations in the United States today consists of community associations that are territorial - i.e., private residential communities encompassing streets and open spaces and traditionally municipal functions and services. See Community Associations Institute, Industry Data, http:// www.calonline.org/about/facts.cfm (last visited Sept. 17, 2006). For further discussion of the distinction between territorial and nonterritorial community associations, see U.S. Advisory Comm'n, supra, at 11-12.
2. Evan McKenzie, Privatopia: Homeowners Associations and the Rise of Residential Private Government 178-79 (1994).
3. See infra text accompanying notes 65-81.
4. Some of the market-driven factors include, but are not limited to, (1) the preference of some homebuyers for a package of private amenities that can be offered by community associations; and (2) the preference of some homebuyers for heightened private security for an entire neighborhood - including gates and guardhouses - a form of amenity that can only be offered in a private community. See infra notes 15-29 and accompanying text. In Part I, infra, I will catalog these and other significant market-driven and demographic factors that have contributed to the phenomenon of explosive growth in the number of private communities in the United States. I will not, however, attempt to establish the relative significance, respectively, of private and public factors to this phenomenon, a methodological undertaking that would be exceedingly difficult to carry out, especially at the broad supra-regional level of inquiry that is the focus of this article. In any event, as I have noted in the text above, the principal objectives of this inquiry are more modest: i.e., to analyze the insufficiently understood public role in the establishment of community associations, to identify specific municipal regulatory requirements pertinent to the establishment of community associations as a condition of subdivision approval, and to recommend that these public requirements be eliminated, so that the determination to establish a community association is a determination made by the developer alone based on market considerations.
5. McKenzie, supra note 2, at 11-12, 178.
6. Common Interest Communities: Private Governments and the Public Interest (Stephen E. Barton & Carol J. Silverman eds., 1994), at 11 [hereinafter Barton & Silverman]. For an enumeration of other scholars and commentators who have noted in] passing this proposition, see infra note 31.
7. U.S. Advisory Comm'n, supra note 1, at 18.
8. The term "community association" is generally used to refer to three distinct but closely related legal entities: i.e., planned single-family home developments, condominiums, and housing cooperatives. In a planned single-family home development, a homeowner generally holds title to both the exterior and interior of a residential unit and the plot of land around it. The planned development association (often called a homeowners' association) owns and manages common properties, which may include streets, parking lots, open spaces, and recreational facilities. In a condominium, a homeowner holds title to a residential unit (sometimes just the interior of an apartment) and to a proportional undivided interest in the common spaces of an entire condominium property. A condominium association manages the common spaces but does not hold title to any real property.
9. U.S. Advisory Comm'n, supra note 1, at 27.
10. Community Associations Institute, Community Associations Factbook 1988; Community Associations Institute, Community Associations Factbook 1993; Community Associations Institute, Community Associations Factbook 1998, www.caionline.org/about/facts.cfm (last visited Sept. 17, 2006). Because the U.S. Census Bureau does not maintain data on the number of individuals or housing units subject to community association governance, no authoritative and comprehensive database on the subject exists. The membership lists and estimates of the Community Associations Institute (CAI), an industry trade association, generally have been considered the most reliable sources of information on the extent of community associations in the United States. See Robert Jay Dilger, Neighborhood Politics: Residential Community Associations in American Governance 18 (1992).
11. See Dilger, supra note 10, at 18; see also Tracy M. Gordon, Planned Developments in California: Private Communities and Public Life 3 (2004) (noting that, in California, association-related housing constituted 60 percent of housing starts in the 1990s).
12. Id. at 18; Mckenzie, supra note 2, at 11.
13. U.S. Advisory Comm'n, supra note 1, at 3 (emphasis added).
14. As of 2002, there were 35,937 general-purpose local governments in the United States (excluding counties). U.S. Census Bureau, 2002 Census of Governments 2, available at http://ftp2.census.gov/govs/cog/ 2002cogprelim-report.pdf. As of 2006, there were an estimated 286,000 community associations in existence in the United States. Community Associations Institute, Community Associations Factbook 2006, www.caionline.org/about/facts.cfm (last visited Sept. 17, 2006).
15. In the following passage, Tracy Gordon provides another perspective of the potential magnitude of the social, economic, and political change effected by the recent explosive growth in the number of community associations in the United States: To put this trend in perspective, compare the growth of [community associations] to the trend of suburbanization more generally. Since 1970, common interest developments have grown faster than the suburbs as a share of all housing units in both California and the United States. This growth rate exceeds the pace of suburbanization during the peak years of 1940 to 1960 by a factor of five. Although a vast literature has explored the social, economic and political implications of suburbanization, the consequences of this most recent transformation are largely unknown. Gordon, supra note 11, at 3.
16. See infra text accompanying notes 17-23.
17. McKenzie, supra note 2, at 81-82.
18. As to a description of the condominium form of ownership - and the statutory requirement that the common areas of a condominium be subject to control by a property owners' association. See supra note 8 and infra text accompanying note 27.
19. See Patrick J. Rohan, Home Owner Associations and Planned Unit Developments - Law and Practice Forms § 3.02(1)(9a), at 3-27 (2005) [hereinafter Rohan I].
20. See id.
21. See id.
22. As of 1997, there were an estimated 20,000 "gated" communities, which contained an estimated 3 million housing units and 8.4 million people. Edward J. Blakely & Mary Gail Snyder, Fortress America: Gated Communities in the United States 3 (1997).
23. Before 1960, the condominium form of ownership was unknown in the United States. Beginning in the early 1960s, the states began enacting statues authorizing the condominium form of ownership, principally in response to the enactment of the National Housing Act of 1961, which extended Federal Housing Administration mortgage insurance to the condominium form of ownership. See McKenzie, supra note 2, at 95. By 1967, all fifty states had enacted condominium statutes. Id. at 95-96.
24. Community Associations Institute, Industry Data, http://www.caionline.org/about/facts.cfm (last visited Sept. 17, 2006)
25. also David a. Kahane, A Bill of Rights for Homeowners Associations 8 (2006) (noting that AARP's Public Policy Institute estimated that 58 percent of all association-related housing units are situated in planned single-family home developments)
26. See id.
27. U.S. Advisory Comm'n, supra note 1, at 11-12.
28. See supra note 8 and accompanying text.
29. As previously noted, association-related housing in the United States was exceedingly rare before 1960. See U.S. Advisory Comm'n, supra note 1, at 27.
30. See supra notes 17-23 and accompanying text.
31. For a comprehensive discussion of the substantial evidence that supports this proposition, see infra text accompanying notes 35-81, wherein evidence is presented from an historical perspective, and see infra text accompanying notes 82-135, wherein contemporary evidence is presented in the form of actual language from selected municipal codes and in the form of first-hand accounts of subdivision developers and local government officials.
32. For example, Professor Evan McKenzie, in the seminal work on the rise of homeowners associations, contended that it was "no accident" that community associations began to proliferate in the 1970s, a period in which local governments were contending with increased demands for services, reduced federal aid, and burgeoning tax revolts. It was "no accident," according to Professor McKenzie, because a local government land use policy encouraging (or even requiring) the establishment of community associations represents (from the perspective of the local government) a seemingly ideal response to countervailing pressures to accommodate development and to restrain the growth in municipal outlays. McKenzie, supra note 2, at 178; see also James C. Dowden, A Guide for Public Officials 42 (1980) (noting that "[i]t is clear that in many instances homeowner associations have been created in cluster or PUD communities primarily for the purpose of meeting local government requirements to deliver services such as maintenance of private roads, streets and open areas"); Gregory Longhini & David Mosena, Homeowners Associations: Problems and Remedies, American Planning Association Advisory Service Report #337, at 2 (noting that "[l]ocal governments find private cluster subdivisions attractive because of lower public service and maintenance costs. Since the public will not assume ownership of streets and utilities, it is believed overall future maintenance costs will be reduced for local governments"); Common Interest Communities: Private Governments and the Public Interest 11 (Stephen E. Barton & Carol J. Silverman eds., 1994) (noting that "[m]any local government responded [to increasing fiscal constraints] by requiring the developer to provide such infrastructure as streets, street lighting, water and sewer lines, parks, playgrounds and parking areas. Making these facilities remain privately owned, with a mandatory homeowners association that is responsible for maintenance, further reduces costs to local government") (emphasis added); Jilia Lave Johnston & Kimberly Johnston-Dodds, Common Interest Developments: Housing at Risk? II (2002) (noting that "[l]ocal governments wanted to avoid the costs of new infrastructure. [The establishment of] CIDs effectively transferred these costs from [the local government] general fund to the developer"). To this list of distinguished scholars an additional, somewhat unlikely source, may be added: the Community Associations Institute (CAI), the industry trade association. On its website, CAI notes that "[c]ommunity associations have become increasingly popular because they ... help meet increased demand for privatization of services as public officials off-load services that were traditionally provided by government, e.g., trash pick-up, snow removal, landscaping, street lighting, street and sidewalk maintenance." Community Associations Institute, Data on U.S. Community Associations, http://www.caionline.org/about/facts (last visited Sept. 17, 2006). I term CAI an "unlikely source," because, as documented by Professor McKenzie, CAI is well-known for protecting the interests of the industry. See McKenzie, supra note 2, at 106-20. The interests of the industry are not necessarily furthered by a candid acknowledgement that the establishment of a community association is not an entirely market-driven phenomenon but rather is, to a great extent, the product of policy decisions made by local government officials. The above-quoted statement of CAI is particularly credible as a statement that, in a litigation context, might be characterized as a "declaration against interest."
33. Rohan I, supra note 19, § 3.0l[3], at 3-9 to 3-10, and n.26 ("Likewise, with the escalating cost of housing in recent years,... PUDs are seen as away of lowering the cost of development by providing economies of scale and density bonuses to developers.... From the standpoint of property owners and developers, PUDs generally allow a greater return on investment.").
34. McKenzie, supra note 2, at 11-12, 178.
35. Barton & Silverman, supra note 6, at 11. For an enumeration of other scholars and commentators who have noted in passing this proposition, see supra note 31.
36. William H. Nelson, Zoning and Property Rights 8 (1977).
37. Standard State Zoning Enabling Act (rev. ed. 1926), reprinted in Zoning and Land Use Controls § 53B.02 (Eric Kelly ed.).
38. Julian C. Juergensmeyer & Thomas E. Roberts, Land Use Planning And Control Law 46 (1998) [hereinafter Juergensmeyer & Roberts].
39. 272 U.S. 365 (1926).
40. Juergensmeyer & Roberts, supra note 37, at 46.
41. See generally Michael Allan Wolf, The Prescience and Centrality of Euclid v. Ambler, Zoning and the American Dream, 253 (Charles M. Haar & Jerold S. Kayden, eds., 1989) ("Sixty years after the Court's approval of zoning, Euclid endures as substance and symbol, despite waves of demographic, economic and political change"); Rohan I, supra note 19, § 2.02, at 2-6, 2-7 (2004) ("Zoning's origins have more than historical significance. This country's land use regulatory approach is fundamentally the same as it was when zoning regulations were conceived").
42. Rohan I, supra note 19, § 2.02, at 2-6, 2-7.
43. Jan Z. Krasnowiecki, Planned Unit Development: A Challenge to Established Theory and Practice of Land Use Control, 114 U. Penn L. Rev. 47 (1965).
44. See Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the United States 235-37 (1985).
45. The inherently exclusionary effect of traditional zoning was presciently recognized by the Supreme Court in the landmark Euclid decision that settled the constitutionality of zoning. See Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 390 (1926) ("The serious question in this case arises over the provisions of the ordinance excluding from residential districts apartment houses, retail stores and shops, and other like establishments. This question involves the validity of what is really the crux of the most recent zoning legislation, namely, the creation and maintenance of residential districts from which business and trade of every sort, including hotels and apartment houses, are excluded." (Emphasis added.)). Even more prescient with respect to the inherently exclusionary nature of traditional zoning is the following observation by the lower court in Euclid: The plain truth is that the true object of the ordinance in question is to place all the property in an undeveloped area of 16 square miles in a straight-jacket. The purpose to be accomplished is really to regulate the mode of living of persons who may hereafter inhabit it. In the last analysis, the result to be accomplished is to classify the population and segregate them according to their income or situation in life. The true reasons why some persons live in a mansion and others in a shack, why some live in a two-family dwelling and others in an apartment, or why some live in a well-kept apartment and others in a tenement, is primarily economic. It is a matter of income and wealth.... Vill. of Euclid v. Ambler Realty Co., 2297 F. 307, 316 (N.D. Ohio 1924), rev'd, 72 U.S. 365 (1926). Fifty years after the lower court in Euclid bluntly stated - and accurately predicted - the exclusionary effects of exclusionary zoning, the New Jersey Supreme Court, in its famous Mount Laurel decision, endeavored to undo the worst exclusionary effects unleashed by the United Supreme Court in Euclid. See S. Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713 (1975). New Jersey's Mount Laurel experiment, although widely recognized, has not been followed in other states. See Joe R. Feagin, Arenas of Conflict: Zoning and Land Use Reform in Critical Political-Economic Perspective, Zoning and the American Dream 86 (Charles M. Haar & Jerold S. Kayden eds., 1989). In any event, the replacement of Euclidean zoning with PUD zoning may have, in some cases, partly ameliorated these exclusionary effects (in that PUD zoning made available a greater variety of housing types, including cluster housing, than otherwise would be available as-of-right under many suburban zoning codes), but did not, by any means, resolve the inherently exclusionary effects of zoning generally.
46. See Martin Mayer, the Builders: Houses, People, Neighborhoods, Governments, Money 13 (1978).
47. McKenzie, supra note 2, at 85-88.
48. Id.
49. Juergensmeyer & Roberts, supra note 37, at 231.
50. Krasnowiecki, supra note 42, at 47-48.
51. See Orinda Homeowners Comm'n v. Bd. of Supervisors, 11 Cal. App. 3d 768, 774-75 (Ct. App. 1970) (discussing the potential for the PUD concept to preserve natural features of the land, while still accommodating the same level of density as under traditional lot-by-lot zoning).
52. Rohan I, supra note 19, § 3.02, at 3-29.
53. See E.C. Yokley, Zoning Law and Practice § 6-1 (4th ed. 1978) ("Land owners generally like PUDs. They allow development of properties that under ordinary zoning would yield less density and therefore lower profits.")
54. Patrick J. Rohan, Zoning and Land Use Controls § 12.01(3)(ii) (Lori A. Hanser ed., Mathew Bender 1991) [hereinafter ROHAN II] ("Among the most significant benefits of the clustering device [i.e., PUDs] are the economic savings that can be generated for both the developer and the community"). For further discussion of the relationship of the PUD form of zoning to the promotion of affordable housing - and how public service exactions serve to undercut that relationship - see Part IV.C., infra.
55. McKenzie, supra note 2, at 85-88.
56. U.S. Federal Housing Administration, Planned Unit Development (1963). But see Stanley Scott, The Homes Association: Will "Private Government" Serve the Public Interest?, (1967), reprinted in Barton & Silverman, supra note 6, at 19-29 (questioning the assumptions underlying the influential FHA repor recommending the establishment of community associations to maintain common property in planned unit developments)
57. Norman Williams, Jr. & John M. Taylor, American Land Use Planning Law § 48, at 230 (rev. ed. 2003) ("[T]raditionally, the provision of common open space has been a municipal function. Widespread use of cluster zoning [coupled with the resulting open space given over to developer-created community associations] would result in abdication of this important municipal function").
58. Id. at 4.
59. Examples of such other municipal functions and services include street maintenance, sewer service, water supply, drainage, curbside refuse collection, parks, and even traditional police patrols of public streets. See U.S. Advisory Comm'n, supra note 1, at 13.
60. The "institutionalized bargaining" implicit in the PUD concept stands in stark contrast to the traditional Euclidean model of zoning, wherein the design of the future development was largely determined in advance by rigid and predetermined lot, bulk, and setback requirements. Although alteration of the Euclidean zoning scheme was always possible through mechanisms such as variances, special permits and amendments, those mechanisms were often cumbersome and the outcome of the process frequently uncertain. In many cases, that uncertainty precluded all but the most well-financed and established developers from seeking, for example, an amendment to a zoning ordinance. For smaller-scale developers seeking to build speculative housing using borrowed money, the delay associated with a zoning change could effectively make the proposed development project unfeasible.
61. Compare Krasnowiecki, supra note 42, at 77 (early influential advocate of the PUD concept; argued that "[c]ourts might simply stop worrying whether a relaxation of [land use] regulations [implicit in the PUD concept] represents a rational and honest judgment on the part of local authorities so long as nobody is individually and seriously injured thereby")
62. Norman Williams, Jr., American Planning Law: Land Use and the Police Power § 48.02, at 228 (1974) (noting that "[t]he trouble" with the PUD concept is that "the actual decisions on land use and building forms in the district, and perhaps also on density, are explicitly to be made, not by a general public policy adopted in advance, but by negotiation between the municipality and the developer"). Some court decisions of the 1960s viewed with skepticism the nascent PUD concept as ultra vires under state law in the absence of express statutory authority, especially when the designation of a PUD was implemented by way of administrative action of a planning board, as distinct from a legislative amendment to the zoning ordinance. See, e.g., Hiscox v. Levine, 216 N.Y.S.2d 801, 806 (N.Y. Sup. Ct. 1961) (holding that action of municipal planning board approving PUD-type development was ultra vires because Planning Board's action amounted to an impermissible exercise of legislative power as well as an exercise of standardless discretion)
63. Eves v. Zoning Bd. of Adjustment, 164 A.2d 7, 11-13 (Pa. 1960) (holding that municipal rezoning that contemplated a PUD-like designation was ultra vires because not authorized by the enabling legislation). Some of the difficulties identified in the early court cases were largely resolved when state legislatures subsequently enacted PUD enabling acts and when courts began to take note of favorable law review commentary advocating the PUD concept. See Frankland v. City of Lake Oswego, 517 P.2d 1042, 1047 (Or. 1973) (upholding municipality's authority to employ PUD technique)
64. Cheney v. Vill. 2 at New Hope, Inc., 241 A.2d 81, 87-88 (Pa. 1968) (same). Note, however, that PUD enabling acts resolved one aspect of the problem - the lack of express statutory authority to employ the PUD technique - but often left largely unresolved the separate issue of standardless discretion conferred on municipal officials.
65. Rohan I, supra note 19, § 3.02(3)(a).
66. Louis F. Weschler, Alvin H. Mushkatel & James E Frank, Politics and Administration of Development Exactions, in Development Exactions 19 (James E. Frank & Robert M. Rhodes eds., 1987) (emphasis added).
67. Id.
68. See, e.g., Norman Williams, Jr. & John M. Taylor, American Land Use Planning Law § 48, at 230 (rev. ed. 2003) ("[T]raditionally, the provision of common open space has been a municipal function. Widespread use of cluster zoning [coupled with the resulting open space given over to developer-created community associations] would result in abdication of this important municipal function.").
69. As previously noted, only a few commentators have acknowledged this critical development in land use law, and, even these commentators, for the most part, have noted the development only in passing. See supra note 31 and accompanying text.
70. In addition to the evidence discussed in the text above, see also Part III, infra, wherein I present examples of actual municipal codes that, by their terms, require the establishment of a community association as a condition of land use approval, and wherein I provide firsthand accounts of subdivision developers and locals government officials in respect to formal and informal municipal policies requiring the establishment of community associations as a condition of land use approval.
71. In this section, when I refer to "exactions," I am employing the term in its traditional sense, as denoting a mandatory physical dedication of land, a mandatory construction of infrastructure, or the imposition of an in-lieu fee. Unless otherwise indicated, I am not referring to "public service exactions" - the term that, elsewhere in this article, I have employed to denote a municipal requirement for a developer to assume responsibility for traditionally municipal services.
72. See Development Impact Fees: Policy, Rationale, Practice, Theory and Issues (Arthur Nielson ed., 1988)
73. Louis F. Weschler, Alvin H. Mushkatel & James E. Frank, Politics and Administration of Development Exactions, in Development Exactions 19 (James E. Frank & Robert M. Rhodes eds., 1987).
74. Juergensmeyer & Roberts, supra note 37, at 305-06.
75. R. Marlin Smith, From Subdivision Improvement Requirements to Community Benefit Assessments and Linkage Assessments: A Brief History of Land Development Exactions, 50 Law & Contemp. Probs. 5, 6 (1987)
76. Stephen Diamond, The Death and Transfiguration of Benefit Taxation: Special Assessments in Nineteenth Century America, 12 J. Legal Stud. 201(1983).
77. Juergensmeyer & Roberts, supra note 37, at 306, n.13.
78. R. Marlin Smith, supra note 68, at 6 (citing International City Managers Ass'n, Municipal Yearbook 253450 (1958)).
79. Id. (citing International City Managers Ass'n, Municipal Yearbook 253-60 (1958)).
80. McKenzie, supra note 2, at 178.
81. Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 837 (1987).
82. Dolan v. City of Tigard, 512 U.S. 374, 391 (1994).
83. Pioneer Trust & Savings Bank v. Mt. Prospect, 176 N.E.2d 799, 802 (Ill. 1961).
84. See, e.g., Simpson v. N. Platte, 292 N.W.2d 297, 301 (Neb. 1980)
85. Coll. Station v. Turtle Rock Corp., 680 S.W.2d 802, 805 (Tex. 1984)
86. Collis v. Bloomington, 246 N.W.2d 19, 26 (Minn. 1976)
87. Jordan v. Menomonee Falls, 137 N.W.2d 442, 450 (Wis. 1965).
88. Dolan, 512 U.S. at 391.
89. A majority of federal and state courts appear to have concluded that the validity of an exaction should not depend upon whether it is in the form of land or money. See, e.g., Ehrlich v. Culver City, 911 P.2d 429, 438 (Cal. 1996) (wherein the California Supreme Court, on remand from the Supreme Court, applied the Nollan/Dolan doctrine to certain forms of monetary exactions). But see Sarasota County v. Taylor Woodrow Homes, 652 So. 2d 1247 (Fla. Dist. Ct. App. 1995) (declining to apply Nollan/ Dolan doctrine to monetary exaction)
90. Vill. Pond, Inc. v. Town of Darien, 60 F. 3d 1273 (7th Cir. 1995) (same). See also Rohan I, supra note 19, § 9.02[4]; Brett Christopher Gerry, Parity Revisited: An Empirical Comparison of State and Lower Federal Court Interpretation of Nollan v. California Coastal Commission, 23 Harv. J.L. & Pub. Pol'y 233 (1999).
91. PUD zoning is a marriage of zoning and subdivision regulation, either as a practical matter or (in some jurisdictions) as a matter of law. As previously noted, the PUD concept, although a radical alteration of traditional Euclidean zoning, is nevertheless almost always legally classified and denominated as zoning, since, like traditional zoning, the PUD concept regulates the type and intensity of land use. See supra notes 47-51 and accompanying text. Bur the PUD concept also either "closely tracks the subdivision approval process," Juergensmeyer & Roberts, supra note 37, § 7.15, at 328, or supersedes and subsumes the subdivision approval process, in light of the fact that a condition precedent to the application of a PUD ordinance is the existence of a parcel of a certain minimum size as to which the owner seeks approval of a proposed subdivision. Rohan II, supra note 52, §§ 12.0113], [4]; 12.0417][a]. Thus, in this marriage of zoning and subdivision leading to the PUD concept, it was perhaps inevitable that the municipal authority to impose exactions - born of subdivision regulation - would be imported into the zoning regime.
92. For an enumeration of those scholars and commentators that have noted in passing the linkage of municipal land use policy and the rise of the community association as an alternate provider of traditionally municipal services and functions, see supra note 31.
93. For further discussion of this point, see infra notes 181-198 and accompanymg text. Note, however, that although a traditional exaction and a public service exaction are virtually identical in purpose and effect from the narrow standpoint of a municipal land use and fiscal policy aimed at off-loading municipal costs on to newcomers, the two forms of exactions, in other and broader policy contexts, are quite distinct. Those distinctions are not relevant to the present analysis. For a detailed discussion of those distinctions, see Part IV.B., infra.
94. See e.g., McKenzie, supra note 2, at 178 (noting that it was "no accident" that community associations began to proliferate in the 1970s, a period when local governments were contending with increased demands for services, reduced federal aid, and burgeoning tax revolts)
95. Dowden, supra note 31, at 42 (1980) (noting that "[i]t is clear that in many instances homeowner associations have been created in cluster or PUD communities primarily for the purpose of meeting local government requirements to deliver services such as maintenance of private roads, streets and open areas");
96. Longhini & Mosena, supra note 31, at 2 (noting that "[l]ocal governments find private cluster subdivisions attractive because of lower public service and maintenance costs. Since the public will not assume ownership of streets and utilities, it is believed overall future maintenance costs will be reduced for local governments"); Barton & Silverman, supra note 6, at 11 (noting that "[m]any local government responded [to increasing fiscal constraints] by requiring the developer to provide such infrastructure as streets, street lighting, water and sewer lines, parks, playgrounds and parking areas. Making these facilities remain privately owned, with a mandatory homeowners association that is responsible for maintenance, further reduces costs to local government") (emphasis added);
97. Johnston & Johnston-Dodds, supra note 31, at 11 (noting that "[l]ocal governments wanted to avoid the costs of new infrastructure. [The establishment of] CIDs effectively transferred these costs from [the local government] general fund to the developer").
98. My research discloses that the requirement that a subdivision developer establish a community association as a condition of land use approval has been implemented by way of municipal ordinance (or by way of informal municipal policy), not by way of state statute. For a discussion of the question of local government authority to implement this requirement in the absence of express authorization under state law, see infra notes 180-287.
99. Among the largest online providers of municipal codes are LexisNexis Municipal Codes Web Library, Municode.com, Generalcode.com, Amlegal.com, and Sterling Codifiers, Inc. Each service offers full text and fully searchable versions of municipal codes. LexisNexis is particularly strong in California municipal codes; MuniCode is particularly strong in Texas and Florida municipal codes; Generalcode is particularly strong in New York and New Jersey municipal codes.
100. Once before in this article I used the analogy to the "emperor's new clothes." See supra text accompanying note 80. That analogy seems particularly apt in this context as well.
101. Maricopa County, Arizona, encompasses the Phoenix metropolitan area. In the decade between 1990 and 2000, Maricopa County was the fastest growing county in the United States (as measured by net increase in population). See U.S. Census Bureau, County and City Data Book: 2000, Table B-1, http://www.census.gov/prod/2002pubs/00ccdb/cc00_tabBl.pdf (last visited Sept. 19, 2006). In that decade, the county grew by nearly 1 million residents. Id. The county is the fourth most populous county in the United States. Id.
102. City of Surprise Zoning Code § 17.28.280(L), available at http://municipalcodes.lexisnexis.com/codes
103. Id. § 17.28.280(L)(2).
104. Broward County encompasses the northern portion of the Miami metropolitan area, including the City of Fort Lauderdale. During the decade of the 1990s, Broward County was the fastest growing county in Florida and the seventh fastest growing county in the United States. In
105. Dania Beach, Fla., Code of Ordinances, ch. 28, art. 6, § 6.52, available at http://www.municode.com/resources/gateway.asp?pid= 10626&sid9.
106. Id. § 6.52(a)(7) (emphasis added).
107. Clark County encompasses the metropolitan area of Las Vegas. During the decade of the 1990s, Clark County was the fastest growing county in the fastest growing state (as measured by percent population change). See U.S. Census Bureau, County and City Data Book: 2000, Table B-1. In that decade, Clark County's population increased by 86 percent to 1.4 million. The county grew by 600,000 persons, approximately the population of Boston or Seattle.
108. Clark County Unified Dev. Code § 1.01.010, available at http://ordlink.com/codes/clarknu/index.htm.
109. Nevada State Demographer's Office, Nevada County Population Estimates, July 1, 1986 to July 1, 2003, Including Cities and Towns (undated).
110. Clark County Unified Dev. Code § 30.24.070, available at http://ordlink.com/codes/clarknu/index.htm.
111. Id. § 30.24.020.
112. Dallas, located in north-central Texas, is the second largest city in Texas after Houston. During the decade of the 1990s, Dallas's population increased by 18 percent to 1.2 million. The population of the City of Dallas comprises 86 percent of the population of the County of Dallas. See Texas State Data Center and Office of the State Demographer, Tables 28 and 29. During the decade of the 1990s, the County of Dallas was the second fastest growing county in Texas (as measured by percent population change). See U.S. Census Bureau, County and City Data Book: 2000, Table B-1.
113. Dallas, Tex. Dev. Code, Planned Development District Regulations ch. 51P, available at http://www.dallascityhall.com/html/ development_code.html.
114. Id. art. 193, § 11.114. Similar language in the code may be found at Article 559, § 559.118; Article 560, § 560.117; and Article 562, § 562.117.
115. New Jersey Department of Labor, New Jersey State Data Center, Cumulative Estimates of Population Change for Counties of New Jersey and County Rankings: April 1, 2000 to July 1, 2003 (2004), available at http://www.census.gov/popest/counties/co-est/2004-02.html.
116. During the decade of the 1990s, the Township of Jackson was the eleventh fastest growing municipality in New Jersey - a state that contains over 500 municipalities. In that decade, Jackson's population increased by 29 percent to 42,816. New Jersey Department of Labor, New Jersey State Data Center, Population for the Counties and Municipalities in New Jersey: 1990 and 2000. In the year 2000, Jackson issued the highest number of residential building permits of any New Jersey municipality. New Jersey Department of Community Affairs, Press Release dated June 11, 2001. Population estimates through 2003 confirm that Jackson continues to experience rapid population growth. Between 2000 and 2003, the population of Jackson increased by 11 percent. New Jersey Department of Labor, New Jersey State Data Center, Annual Estimates of the Population for Incorporated Places in New Jersey, Listed Alphabetically: April 1, 2000 to July 1, 2003 (2004).
117. Jackson TWP., N.J., Zoning Code ch. 109, art. VI, §§ 109-46J, 109-48L, 109-49N, available at http://gcp.esub.net/cgi-bin/ om_isapi.dll?clientID=49255%infobase=jackson.nfo&softpage= browse_frame_pg42.
118. Id. § 109-46J(2).
119. See supra notes 84-103 and accompanying text.
120. Comprehensive and authoritative data of the number of community associations by state - as well as the prevalence of community associations as a percentage of new home development by jurisdiction - are generally not available. However, survey data from the late 1980s suggested that "nearly all new residential development in California, Florida ... [and] Texas" is association-related housing. Dilger, supra note 10, at 18. Moreover, "more than 50 percent of all housing for sale in the fifty largest metropolitan areas of the country" is association-related housing. Id.
121. It is beyond the scope of this article to undertake a survey of municipal codes in high-growth areas of the United States to determine the prevalence of codified community association requirements. For reasons to be described in the text above, however, such a survey of codified law would, in any event, be of limited utility in sizing up the true dimensions of municipal policy pertinent to the establishment of community associations as a condition of PUD approval. See infra notes 107-12 and accompanying text.
122. See also infra text accompanying notes 113-35, wherein I set forth various anecdotal accounts of developers and local government officials with respect to the existence of uncodified and informal municipal policies requiring the establishment of a community association as a condition of subdivision approval.
123. See e.g., Laura T. Rahe, The Right to Exclude: Preserving the Autonomy of the Homeowners' Association, 34 Urb. Law. 521, 552 (2002) (arguing that "the homeowners association is properly viewed as 'the product of individual [consumer] choices'")
124. Robert H. Nelson, Privatizing the Neighborhood: A Proposal to Replace Zoning with Private Collective Property Rights in Existing Neighborhoods, 7 Geo. Mason L. Rev. 827, 828 (1999) (opining that "economic forces ... made private neighborhood associations the choice for millions of people for their residential property"); U.S. Advisory Comm'n, supra note 1, at 13 (noting that "strong proponents of [community associations] argue that these organizations provide a vehicle for greater consumer choices")
125. Uriel Reichman, Residential Private Governments: An Introductory Survey, 43 U. Chi. L. Rev. 253, 255-56 (1976) (opining that community associations are "of a private nature" because they are "based on private initiative, private money, private property and private law concepts").
126. See supra notes 59-60 and accompanying text.
127. See supra notes 61-65 and accompanying text.
128. The above-quoted language from the City of Dallas Development Code reinforces flais point. See supra notes 97-99 and accompanying text. As previously noted, fiae Dallas Planned Unit Development process operates by way of amendment to the existing code for each Planned Unit Development application proposed by a developer of a subdivision. Thus, unlike many general and prescriptive PUD ordinances in effect in other municipalities, the Dallas PUD ordinance is actually descriptive of the conditions and restrictions imposed by the City in connection with particular PUD applications. The operative language in the Code is instructive: "Prior to Final Plat Approval, the owner(s) of the Property must execute an instrument creating a homeowner association for the maintenance of common areas, screening walls, landscape areas (including perimeter landscape areas), private streets and for other functions." City of Dallas Dev. Code, art. 193, § 11.114. This code language, being descriptive rather than prescriptive, may more accurately reflect the scope and extent of public service exactions imposed by municipalities as part of the institutionalized bargaining process that is characteristic of the PUD approval process.
129. By contrast, a survey of homebuilders engaged in constructing planned single-family home developments might well lead to a fuller and more accurate understanding of the nature and extent of municipal exaction policy, because such a survey would presumably report instances of de facto, as distinct from de jure, exaction policy. Note, however, that even a survey of homebuilders might not be fully accurate with respect to the existence of municipal public service exactions, because of the distinct possibility that some homebuilders would be reluctant to report - for business or public relations reasons - on the nature and extent of "institutional bargaining" implicit in the PUD approval process, as well as other informal noncodified municipal policy implemented through the land use review process. Although it is beyond the scope of this article to undertake a survey of homebuilders, my research has included discussions and correspondence with some homebuilders with respect to the nature and extent of municipal requirements vis-à-vis the establishment of community associations as a condition of subdivision approval. See Part III.B., infra.
130. The author contacted a variety of homebuilders and builders associations situated in high-growth areas of the United States. Only a small fraction of builders responded. Statements of every responding homebuilder are included in this article. Because the contacts with homebuilders were not the result of a systematic survey design and because the "universe" of contacts is, in any event, insufficient to support generalized conclusions, I make no claim that the evidence here presented is anything more than anecdotal.
131. Unpublished written statement dated July 6, 2006, of Larry Kush, President, Montevina Estate Homes, Scottsdale, Arizona (on file with the author).
132. Unpublished written statement dated May 22, 2006, of Larry Kush, President, Montevina Estate Homes, Scottsdale, Arizona (on file with the author).
133. Id.
134. Unpublished written statement dated July 25, 2006, of Kristopher L. Hartman, Senior Development Manager, Stardust Development, Inc., Scottsdale, Arizona (on file with the author).
135. Id.
136. Id.
137. Id.
138. Unpublished written statement dated July 9, 2006, of David Lauletta, Director of Forward Planning, Shea Homes of Southern California, Westlake Village, California (on file with the author).
139. Unpublished written statement dated July 5, 2006, of David Lauletta, Director of Forward Planning, Shea Homes of Southern California, Westlake Village, California (on file with the author).
140. Id.
141. Unpublished written statement dated May 22, 2006, of Kristine Thalman, Chief Executive Officer, Building Industry Association of Orange County, Irvine, California (on file with the author).
142. Id.
143. K. Hovnanian Homes, Home Page, www.khov.com (last visited Sept. 14, 2006).
144. Unpublished written statement dated July 31, 2006 of Steven Dahl, Vice President, K. Hovnanian Companies, Edison, New Jersey (on file with the author).
145. Id.
146. K. Hovnanian Homes, Home Page, www.khov.com (last visited Sept. 14, 2006).
147. McKinney is a city of 100,000 that is situated approximately thirty miles north of Dallas. On its website, the city bills itself as "the fastest growing city in America" McKinney, Texas, Home Page, www.mckinneytexas.org. (last visited Sept. 14, 2006).
148. Telephone interview with Brian James, July 24, 2006.
149. Id.
150. El Mirage is a municipality of 28,000 situated approximately 20 miles northwest of Phoenix. www.cityofelmirage.org (last visited Sept. 17, 2006).
151. Unpublished written statement dated July 26, 2006 of Mark L. Smith, Senior Planner, City of El Mirage (on file with the author).
152. Id.
153. See supra notes 16-29 and accompanying text.
154. See supra note 108 and accompanying text.
155. If the community association servitude regime were nothing more than a response by housing producers to consumer demand, as evidenced by the voluntary and informed consent to the regime by individuals who become subject to the regime, then the regime would, of course, be fully consistent with fundamental tenets of free-market economics, including the tenet that seemingly elevates contractual and property rights over other constitutional principles. But, as agued throughout this article, the regime fails all of these tests. For a discussion of the illusory nature of consumer "consent" to community association servitude regimes and of the lack of meaningful choice as between association-related housing and other housing in the high-growth areas of the United States, see infra notes 158-60 and accompanying text. For further discussion to the liberty-infringing characteristics of the typical community association servitude regime - surely a subject of concern for both traditional conservatives and liberals alike see Part IV.F., infra.
156. This sentence, reformulated so as to represent the government policymaker's perspective, could instead read: "A just and equitable housing policy should produce a wide range of housing types, prices, tenures and amenity packages for the broadest possible segment of housing consumers."
157. These secondary effects are discussed at length in Part IV.C., infra.
158. Under the Supreme Court's Fifth Amendment "takings" jurisprudence, so long as the traditional exaction is "roughly proportiona[te]," both in nature and extent, to the "impact of the proposed development" upon which the exaction is premised, the exaction is valid. Dolan v. City of Tigard, 512 U.S. 374, 391 (1994). See also supra notes 73-78 and accompanying text.
159. Note also that a public service exaction requires the establishment of a community association as the essential means to provide the service or function that is the subject of the public service exaction. By contrast, a traditional exaction does not require the establishment of a community association, because the payment of the capital cost of the infrastructure is entirely accomplished by the developer during the period of time in which the developer remains in control of the subdivision.
160. Public service exactions lead to "double taxation" of community association residents, i.e., the circumstance whereby community association residents are required to pay real estate taxes for municipal services as well as community association fees for core municipal-like services that other taxpayers in the same municipality receive without additional cost to them. For further discussion of the double-taxation phenomenon, see infra notes 151-52 and accompanying text.
161. Of course, when I use the term "public service exactions," I am referring to municipal imposition of requirements to operate and maintain functions and services that are traditionally provided by municipalities - or, at the very least, functions and services which the municipality itself provides elsewhere within the municipality's jurisdiction but which the municipality, by operation of the public service exaction, will not be providing in the new subdivision. Conversely, I am not referring to certain amenities that are sometimes provided in community associations - such as, for example, a golf course - which are not generally provided by municipalities. See U.S. Advisory Comm'n, supra note 1, at 12-13 (distinguishing between "public" and "private" services typically furnished by community associations). In any event, it is highly unlikely that a municipality would require that a developer establish a luxury amenity, such as a golf course, as a condition of land use approval. Rather, it is much more likely that such an amenity would be the product of market-driven decisions made by the developer. That being the case, such luxury amenities do not come within the ambit of public service exactions, and, consequently, the equitable arguments set forth in the text above would have no application whatsoever to such amenities.
162. See supra notes 35-64 and accompanymg text.
163. See supra notes 47-49 and accompanying text.
164. See Rohan I, supra note 19, § 3.01[3], at 3-9 to 3-10, and n.26 ("Likewise, with the escalating cost of housing in recent years,... PUDs are seen as a way of lowering the cost of development by providing economies of scale and density bonuses to developers. From the standpoint of property owners and developers, PUDs generally allow a greater return on investment.")
165. Yokley, supra note 52, § 6-1 ("Land owners generally like PUDs. They allow development of properties that under ordinary zoning would yield less density and therefore lower profits")
166. Rohan II, note 52, § 12.01[4][iii] ("Among the most significant benefits of the clustering device are the economics savings that can be generated for both the developer and the community").
167. Mayer, supra note 45, at 13.
168. See Johnston & Johnston-Dodds, supra note 31, at 13 (noting that "[s]o far, CIDs have been one of the few vehicles that have successfully increased density").
169. See Rohan I, supra note 19, § 3A.01[3], at 3A-3 ("A distinguishing feature of PUDs is that they contain "common land" owned by a homes association ... to which all homeowners must belong and to which they must pay lien-supported assessments'") (quoting Department of Veterans [Affairs] Benefits Circular 26-90-34, § 2a).
170. By way of example, a homebuilder in California estimated that the approximate cost (in the form of homeowners fees) of private streets and private open space in a subdivision of 50-150 homes is in the range of $2,000 to $3,000 per homeowner per year. Unpublished written statement dated July 9, 2006, of David Lauletta, Director of Forward Planning, Shea Homes of Southern California, Westlake, California (on file with the author). The estimate would be considerably higher if the homeowners association were also required to provide private water and sewer service. A New Jersey homebuilder estimated that the annual cost of on-site sewage treatment facility is $1,000 per homeowner per year. Unpublished written statement dated July 31, 2006 of Steven Dahl, Vice President, K. Kovnanian Companies, Edison, New Jersey (on file with the author).
171. Indeed, the system of "double taxation" described in the text above arguably would be unconstitutional under the "equal taxation" clauses found in most state constitutions, if courts were to hold that homeowner fees, as the functional equivalent of municipal real estate taxes, should be treated as taxes for constitutional purposes.
172. Of course, a developer might have an incentive to challenge a municipality's policy of public service exactions if the developer believed that such a challenge would have a reasonable chance of substantially lowering housing costs to the consumer and if the developer were convinced that it had an effective judicial remedy to accomplish this purpose. Cf. S. Burlington County NAACP v. Twp. of Mt. Laurel, 456 A.2d 390, 452-60 (N.J. 1983) (establishing, under the authority of the New Jersey Constitution, a "builder's remedy" aimed at requiring municipalities to adopt zoning provisions that permit affordable housing). Today, there appears to be no reported decisions that identify or apply a specific judicial remedy against public service exactions. For a discussion of a potential remedy involving a robust interpretation of the state common law and statutory law of dedication, see Part V.A., infra.
173. See supra notes 138-39 and accompanying text.
174. See, e.g., Barton & Silverman, supra note 6, at 137 ("In a 12-county survey in California of resale buyers, we found that 84 percent of those who bought a home in a CID were not looking for a CID to buy in.").
175. See id.
176. McKenzie, supra note 2, at 135. Some idea of the scope of a community association's power over the expressive and personal activities of residents of association-related housing is illustrated by the following summary contained in my article applying constitutional state-action theory to community associations: As private entities not [apparently] subject to the requirements of the Constitution's First and Fourteenth Amendments, RCAs are free to impose a ban on posting signs inside or outside a home, to restrict public assembly on their streets, to prohibit the distribution of newspapers on their streets, to restrict the number and ages of overnight visitors, to prohibit members of a homeowner immediate family (including the homeowner spouse) from cohabiting with the homeowner, and even to ban sexually explicit films, books, and magazines from a homeowner bedroom. Moreover, the RCA governing board, although elected by RCA homeowners, is the product of an electoral system that is at substantial variance from the one-person, one-vote principle guaranteed by the Fourteenth Amendment. The typical RCA electoral scheme employs a one-house, one-vote system, disenfranchises all renters, and employs weighted voting in favor of the developer. Steven Siegel, The Constitution and Private Government: Towards the Recognition of Constitutional Rights in Private Residential Communities Fifty Years After Marsh v. Alabama, 6 William & Mary Bill of Rights J., 461, 469-70 (1998).
177. Empirical research belies the theory that homebuyers provide "consent" to the community association servitude regime at the time buyers purchase their homes. For example, a study of California community association residents found a "widespread lack of understanding" on the part of homebuyers of the complex private law regime to which the homebuyers had become subject by virtue of purchasing their homes. Barton & Silverman, supra note 6, at 137. This lack of understanding was evident even though California law requires sellers of association-related housing units to provide buyers with a copy of the community association governing documents before the sale is closed. See id. see also Dilger, supra note 10, at 38 ("[M]any consumers are not fully aware of the [community association's] powers or their own role in [community association] governance when they purchase their home. As a result, the homeowners' consent to the [association's] CC&Rs is often reduced to a purely theoretical premise and, unfortunately, often does not reflect their autonomous will").
178. See Dilger, supra note 10, at 38 ("Although [community associations] do provide more consumer options in the abstract, in many areas of the country [association-related housing] now dominate the local housing market and are increasingly offering fairly uniform levels and types of services."); id. at 18. ("According to CAI, [association-related housing] govern nearly all new residential development in California, Florida and Texas")
179. Joel Garreau, Edge City: Life on the new Frontier 189 (1991) ("If you want a new home, it is increasingly difficult to get one that doesn't come with a homeowners' association") (quoting Douglas Kleine).
180. See supra note 154.
181. Siegel, supra note 157, at 546-52. See also Part IV.F., infra.
182. Blakely & Snyder, supra note 22, at 3.
183. David J. Kennedy, Note, Residential Associations as State Actors: Regulating the Impact of Gated Communities on Nonmembers, 105 Yale L.J. 761, 767 (1995).
184. Id. at 768.
185. See Blakely & Snyder, supra note 22; Setha Low, Behind the Gates: Life, Security and the Pursuit of Happiness in Fortress America (2003)
186. Sheryl D. Cashin, Privatized Communities and the "Secession of the Successful": Democracy and Fairness Beyond the Gate, 28 Fordham Urb. L.J. 1675 (2001).
187. Unfortunately, a few jurisdictions already authorize or require taxpayer funding of the operations of gated communities. For example, New Jersey, by statute, requires all of its municipalities to furnish certain municipal services in private communities or, in the alternative, to reimburse the communities for the value of the services. See N.J. Stat. §§ 40:67-23.2 to -23.8 (West 2006). Covered services include refuse collection, snow removal, and street lighting. Id. § 40:67-23.3. Notably, gated communities are not exempted from the benefits of the statute. See id. For further discussion of this issue, see infra note 302.
188. See U.S. Advlsory Comm'n, supra note 1, at 12-13.
189. See Dilger, supra note 10, at 23-24.
190. McKenzie, supra note 2, at 135.
191. Siegel, supra note 157, at 469-71.
192. In the Civil Rights Cases, 109 U.S. 3 (1883), decided fifteen years after the adoption of the Fourteenth Amendment, the Supreme Court determined that the guarantees of the Fourteenth Amendment apply only to actions taken by the government. See The Civil Rights Cases, 109 U.S. at 11. In general, private conduct, "however discriminatory or wrongful" does not come within the ambit of the Fourteenth Amendment. Shelley v. Kraemer, 334 U.S. 1, 13 (1948). However, the Court, beginning in the 1930s, has come to recognize that the distinction between public and private conduct is not always clearcut, and that, under some circumstances, the actions of private parties may be attributed to the state. See, e.g., Georgia v. McCollum, 505 U.S. 42 (1992) (holding that state action was present in a defendant's use of a peremptory challenge in a criminal case)
193. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922 (1982) (holding that state action was present when a creditor obtained a prejudgment writ of attachment of a debtor's property)
194. Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961) (holding that state action was present in the conduct of a privately owned restaurant that leased space from a government agency)
195. Shelley, 334 U.S. 1 (1948) (holding that state action was present in the judicial enforcement of a private restrictive covenant)
196. Marsh v. Alabama, 326 U.S. 501 (1946) (holding that state action was present in the operation of a company town that was the functional equivalent of a municipality)
197. Smith v. Allwright, 321 U.S. 649 (1944) (holding that state action was present in political party primary elections).
198. Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961).
199. Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974).
200. In a prior article, I argued for a new and expansive application of state-action theory to take account of the modern phenomenon of large-scale community associations, and the concomitant erosion of a public sphere where constitutional rights had once been vested but where those rights no longer exist by virtue of the privatization of that sphere. See Siegel, supra note 157, at 546-43. An expansive application of state-action theory has not been adopted by the federal courts, although a few state courts, most notably New Jersey, have discerned in their own state constitutions a basis to subject the private realm of community associations to a constitutional, or quasi-constitutional, regime. See Comm'n for a Better Twin Rivers v. Twin Rivers Homeowners Ass'n, 890 A.2d 947 (N.J. 2006) (holding that community is a "constitutional actor" under State Constitution with respect to association residents' right of free expression)
201. see also Laguna Publ'g Co. v. Golden Rain Found., 182 Cal. Rptr. 813 (Ct. App. 1982) (holding that a community association is not a state actor for federal constitutional purposes but is a state actor under the California Constitution).
202. See, e.g., Anelli v. Arrowhead Lakes Comty. Ass'n, No. 2450 C.D., Community Ass'n L. Rep., June 1997, at 3 (Pa. Commw. Ct. Feb. 13, 1997) (holding that a community association is not a state actor under the federal Constitution)
203. Brock v. Watergate Mobile Home Park Ass'n, Inc., 502 So. 2d 1380 (Fla. 1987) (same)
204. Ross v. Hatfield, 640 F. Supp. 708 (D. Kan. 1986) (same)
205. Butsee Pitt v. Pine Valley Golf Club, 695 F. Supp. 778 (D.N. J. 1988) (holding that a community association restrictive covenant amounted to state action under the Marsh doctrine
206. State v. Kolcz, 276 A.2d 595 (N.J. Co. Ct. 1971) (holding that a community association may be analogized to the company town in Marsh).
207. McKenzie, supra note 2, at 135.
208. See U.S. Advisory Comm'n, supra note 1, at 3 ("In many rapidly growing areas, such as those in California, nearly all new residential development is within the jurisdiction of residential community associations.")
209. U.S. Advisory Comm'n, supra note 1, at 18.
210. For example, the branch of First Amendment jurisprudence known as the "public forum" doctrine is premised on the Supreme Court's recognition that speech conducted on certain types of public property - particularly streets and parks - is entitled to special protection and solicitude under the First Amendment. See, e.g., Schneider v. New Jersey, 308 U.S. 147 (1939)
211. Hague v. Coram. of Indus. Org., 307 U.S. 496, 515-16 (1939) (J. Roberts, concurring). When streets and parks are privately owned - as is the case in many territorial community associations - the special speech-protective functions of the public forum doctrine are generally not available to community association residents and nonresidents alike. In light of the fact that public streets and parks are fast becoming an endangered species in many high-growth areas of the United States, the Supreme Court's public-forum doctrine is increasingly becoming an anachronism in some areas of this country. For further discussion of this point, see infra note 197 and accompanying text.
212. The proposed "right" has not been judicially recognized in any state. My review of published case law discloses not a single decision that holds that a municipality has exceeded (or may exceed) its authority in imposing what I have termed "public service exactions" - or the equivalent of "public service exactions" by another name. Indeed, the issue apparently has not even been presented to a court. 181 See infra notes 188-212 and accompanying text.
213. See Friends of the Trails v. Blasius, 793 Cal. Rptr. 2d 193, 199 (Cal. Ct. App. 2000) (observing that "American courts have freely applied th[e] common law doctrine [of dedication] not only to streets, parks, squares, and commons, but to other places subject to public use").
214. See e.g., City of Cincinnati v. Lessee of White, 31 U.S. 431 (1832) (holding that dedication of a common area rests on the same principle as the public's right to use streets)
215. Seaway Co. v. Attorney Gen., 375 S.W. 2d 923 (Tex. Civ. App. 1964) (finding that beach had been dedicated to the public).
216. Although voluntary dedication is sometimes characterized as merely a "gratuitous" transfer made by the dedicator, that characterization is true only in the strict sense that monetary consideration is generally not received by the dedicator in exchange for the transfer of title (or the imposition of a public easement) in respect of the dedicated lot. As made clear in the text above, a voluntary dedication is seldom an act of public charity, but rather amounts to an in-kind exchange of land for public access, municipal services, and enhanced property values.
217. Note, Public Ownership of Land Through Dedication, 75 Harv. L. Rev. 1406 (1962) (quoting 3 American Law of Property § 12.32 (Casner ed., 1952)).
218. As to the specific limited meaning of "gratuitous" that is employed here, see supra note 184.
219. Note, however, that when the state requires dedication (also known as an "exaction") as a condition of a land use approval, the Fifth Amendment may be implicated, unless the mandatory dedication is "roughly proportionat[e]" both in nature and extent, to the ("impact of the proposed development" upon which the mandatory dedication is premised. Dolan v. City of Tigard, 512 U.S. 374, 391 (1994). This species of dedication - i.e., "mandatory
220. Friends of the Trails v. Blasius, 824; 93 Cal. Rptr. 2d 193, 201 (Ct. App. 2000).
221. Appleton v. City of N.Y., 114 N.E. 73 (N.Y. 1916) (quoting Post v. Pearsall, 22 Wend. 425, 433 (N.Y. 1839)).
222. William Blackstone, 2 Commentaries 33 (1768).
223. The Queen v. Inhabitants of Hornsey, 88 Eng. Rep. 670 (1713).
224. As to common law reception generally, see 15A C.J.S. Common Law § 5 ("[T]he greater part of the common law in the United States is derived from the common or unwritten law of England.")
225. Ford W. Hall, The Common Law: An Account of Its Reception in the United States, 4 Vand. L. Rev. 791 (1951).
226. See id.
227. Mayor of New Orleans v. United States, 35 U.S. 662, 712 (1836).
228. Id. at 712.
229. Id.
230. For example, as previously noted, the branch of First Amendment jurisprudence known as the "public forum" doctrine is premised on the Supreme Court's recognition that speech conducted on certain types of public property - particularly streets and parks - is entitled to special protection and solicitude under the First Amendment. See, e.g., Schneider v, New Jersey, 308 U.S. 147 (1939)
231. Hague v. Comm. of Indus. Org., 307 U.S. 496, 515-16 (1939) (Roberts, J., concurring). Importantly, the real estate upon which the traditional public forum doctrine is grounded (quite literally) is real estate owned by the state and obtained principally, one surmises, through acts of dedication by landowners. As to the constitutional significance of publicly owned streets and parks, it is well to recall Justice Roberts' famous concurring opinion that laid the groundwork for the Court's recognition of the public forum doctrine: Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thought between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. Hague v. Comm. of Indus. Org., 307 U.S. 496, 515-16 (1939) (Roberts, J., concurring). To the extent that some municipalities have elected to categorically refuse to accept dedication of land for street or park purposes, see supra notes 82-135 and accompanying text, Justice Roberts' vision - and traditional First Amendment values - will suffer. It is, of course, true that some state courts, applying the free speech guarantees of their own state constitutions, have recognized a limited right to engage in expressive activity on certain forms of private property, including - in a recent and important case in New Jersey - community association property. See Comm. for a Better Twin Rivers v. Twin Rivers Homeowners Association, 890 A.2d 947 (N.J. Super. Ct. App. Div. 2006). But this state-by-state protection is limited and piecemeal, and, even in individual states, cannot hope to replicate the robust protections of the public-forum doctrine of the First Amendment.
232. See Blakely & Snyder, supra note 22; Setha Low, supra note 165; Cashin, supra note 165.
233. "A definite intention to dedicate on the part of the land owner and an acceptance by the public are essential elements of common law dedication." Jefferson v. Doody, 167 So. 2d 489 (La. Ct. App. 1964). Note, however, that neither the offer nor the acceptance need be "formally expressed, but both must be sufficiently clear so as to exclude any rational hypothesis other than dedication." Antieau on Local Government Law 8 24.12 (2d ed. 2005).
234. See surveying the law of dedication: E.C. Yokley, Law of Subdivisions §§ 30-36 (2d ed. 1981)
235. McQuillin, supra note 187, §§ 33.01-33.80; Am. Jur.. 2d, Dedication §§ 1-72 (2002) (rev. 2004)
236. 38 Am. Jur. Proof of Facts 2d 633, Dedication of Land to Public Use §§ 1-27 (1984) (rev. 2004)
237. 26 C.J.S., Dedication §§ 1-45 (2001) (rev. 2005); Note, Public Ownership of Land Through Dedication, 75 Harv. L. Rev. 1406 (1962).
238. E.C. Yokley, supra note 52, § 33; McQuillin, supra note 187, § 33.03; Am. Jur. 2d, Dedication §§ 1, 18-33.
239. See, e.g., Carlson v. Burkhart, 27 P. 3d 27 (Kan. 2001)
240. St. Charles Parish School Bd. v. P & L Investment Corp., 674 So. 2d 218 (La. 1996)
241. Hale v. City of Statham, 504 S.E.2d 691(1998)
242. In re 88 Acres of Property, 676 A.2d 778 (Vt. 1996)
243. Helsel v. City of N. Myrtle Beach, 413 S.E.2d 821 (S.C. 1992)
244. Volco, Inc. v. Lickley, 889 P.2d 1099 (Idaho 1995).
245. See, e.g., Vallone v. City of Cranston, 197 A.2d 310 (R.I. 1964)
246. Bauer Enters., Inc. v. City of Elkins, 317 N.E. 2d 798 (1984)
247. Davenport v. Buffington, 97 F. 234 (8th Cir. 1899)
248. City of Peoria v. Cent. Nat'l Bank, 79 N.E. 296 (Ill. 1906)
249. Carroll v. Vill. of Elmswood, 129 N.W. 537 (1911)
250. People v. Reed, 22 P. 473 (Cal. 1889)
251. See, e.g., Richards v. Colusa County, 16 Cal. Rptr. 232 (Ct. App. 1961)
252. Gowers v. City of Van Buren, 197 S.W. 2d 741, 780 (Ark, 1946)
253. Whitaker v. Town of Tipton, 426 P. 2d 336, 338 (Okla. 1966)
254. City of Molalla v. Coover, 235 P.2d 142, 146 (Or. 1951)
255. Henderson v. Young, 103 A. 719, 720 (Pa. 1918)
256. Copeland v. City of Dallas, 454 S.W.2d 279, 284 (Tex. 1970)
257. Highway Holding Co. v. Yara Eng'g Corp., 22 N.J. 119, 125-26 (N.J. 1956)
258. Vill. of Benld v. Dorsey, 142 N.E. 563, 565 (Ill. 1924).
259. See, e.g., Irwin v. Dixion, 50 U.S. 10, 9 How. 10 (1850)
260. City of Hollywood v. Zinkil, 283 So. 2d 581 (Fla. 1973)
261. Gutierrez v. County of Zapata, 951 S.W. 2d 831 (Tex. 1997).
262. 77 Am. Jur. proof of Facts 3d § 6; see also Am. Jur. Dedication §§ 24-34 (2004).
263. See, e.g., Hora v. Crest Hill Homes, Inc., 164 N.E.2d 150 (Mass. 1960)
264. Allen v. Vill. of Savage, 112 N.W.2d 807 (Minn. 1961)
265. Luter v. Crawford, 92 So. 2d 348 (Miss. 1957).
266. See, e.g., Martin v. Redmond, 638 N.W. 2d 142 (Mich. Ct. App. 2001)
267. Hooper v. Haas, 64 N.E. 23 (Ill. 1928)
268. Barber Asphalt Paving Co. v. Jurgens, 149 P. 560 (Cal. 1915)
269. Riley v. Buchanan, 76 S.W. 527 (Ky. 1903).
270. See, e.g., Brown v. Moore, 500 S.E.2d 797 (Va. 1998)
271. Tupper v. Dorchester County, 487 S.E.2d 187 (S.C. 1997)
272. Foster v. Bergstrom, 515 N.W. 2d 581 (Minn. 1994)
273. Thornton v. City of Colo. Springs, 478 P.2d 665 (Colo. 1970).
274. See, e.g., Ross v. Hall County, 219 S.E.2d 380 (Ga. 1975)
275. Ackley v. City of San Francisco, 89 Cal. Rptr. 480 (Cal. 1970)
276. Pulleyblank v. Mason County, 86 N.W.2d 309 (Mich. 1957).
277. See, e.g., A & H Corp. v. City of Bridgeport, 430 A.2d 25 (Conn. 1980)
278. Pepin v. City of Manchester, 231 A.2d 481 (N.H. 1967).
279. See, e.g., S. Ry. Co. v. Caplinger, 152 S.W. 947 (Ky. 1913).
280. See, e.g., Idaho Code §§ 50-1309, 50-1312 (Michie 2006)
281. Iowa Code § 354.19 (2005)
282. Kan. Stat. Ann. § 12-752 (2006)
283. Ky. Rev. Stat. Ann. § 82.400 (2006)
284. La. Rev. Stat. Ann. §§ 33:813, 33:5051 (West 2006)
285. Miss. Code. Ann. § 17-1-23 (2006)
286. Minn. Stat. Ann. § 505.03 (West 2005)
287. Mo. Rev. Stat. § 445.010 (2006)
288. N.C. Gen. Stat. § 136-66.10 (2006)
289. Ohio Rev. Code §§ 723.03, 5553.31 (2006)
290. Okla. Stat. Ann. tit. 11, § 41-109 (West 2000)
291. Utah Code Ans. § 10-9a-607 (2006)
292. Wis. Stat. Ann. § 236.29 (West 2006).
293. Yokley, supra note 52, § 31.
294. 77 Am. Jur. Proof of Facts 3d at § 1, Proof of Offer and Acceptance of Land to Public Use § 3 (rev. 2004).
295. See, e.g., McQuillin, supra note 187, at § 33.03 ("The authorization of statutory dedication does not in any way restrict the common law power of the owner to devote his or her land ... to public use."); 38 Am. Jur. Proof of Facts 2d 633, § 2 ("Within the same jurisdiction a dedication of land to public use may be statutory or pursuant to common law.") (Emphasis added.)
296. See, e.g., Holmes v. Parish of St. Charles, 653 So. 2d 653 (La. 1995)
297. First Ill. Bank of Wilmette v. Valentine, 619 N.E.2d 834 (Ill. 1993)
298. Town of Moorcroft v. Lang, 779 P.2d 1180 (Wyo. 1989)
299. Las Vegas Pecan & Cattle Co., Inc. v. Zavala County, 682 S.W.2d 254 (Tex. 1984)
300. Thornton v. City of Colo. Springs, 478 P.2d 665 (Colo. 1970)
301. Tuccio v. Lincoln Dev. Corp., 239 A.2d 69 (Conn. 1967)
302. Weakly v. State Highway Comm'n, 364 S.W.2d 608 (Mo. 1963)
303. Ginter v. City of Webster Groves, 349 S.W.2d 895 (Mo. 1961)
304. Neill v. Hake, 93 N.W.2d 821 (Minn. 1958)
305. Witherall v. Strane, 90 So. 2d 251 (Ala. 1956)
306. Galewski v. Noe, 62 N.W.2d 703 (Wis. 1954).
307. See McQuillin, supra note 187, § 33.03; 38 Am. Jur. Proof of Facts 2d 633, § 2.
308. See supra note 200.
309. Cf. Lucas v. S.C. Coastal Comm'n, 505 U.S. 1003, 1029 (1992) (observing that, as a general proposition, ownership in real property necessarily encompasses "background principles of the State's law of property[,]..; which inhere in the title itself"). For further discussion of this point see Part V.A.4., infra.
310. See infra text accompanying notes 225-28.
311. See supra notes 36-39 and the accompanying text.
312. Standard State Zoning Enabling Act (rev. ed. 1926), reprinted in Zoning and Land Use Controls § 53B.01 (Eric Kelly, ed.).
313. 272 U.S. 365 (1926).
314. Standard City Planning Enabling Act (1928), reprinted in Zoning and Land Use Controls § 53B.02 (Eric Kelly ed.).
315. Juergensmeyer & Roberts, supra note 37, § 7.2, at 305.
316. The purpose of these "mapping" statutes was strictly to simplify the legal description of subdivided property by reference to a recorded subdivision map.
317. Today, all fifty states have enacted subdivision enabling statues. See Yokley, supra note 52, §§ 71-122 (summarizing the statutory enactments of the fifty states governing subdivision regulation).
318. See McQuillin, supra note 187, § 33.05.10 (characterizing form of exaction requiring that developer turn over a portion of its land to municipality as a "mandatory dedication"). Note that the Model Subdivision Act expressly recommended that the states adopt a provision authorizing mandatory dedication in the context of subdivision review: Both to protect persons who buy the lots and to assure that the materials and locations of the improvements and utilities will conform to the proper standards, as well as to protect the city from incurring the costs which should be borne by the original subdivider, the time of the approval of the plan is the best one at which to require these features. This includes not only the paving, but also such items as sidewalks, curbs, gutters, and service connections to various utility mains placed in the streets. Model Subdivision Act, part of Note 72 to Section 14, reproduced as § 53B.02, sect. 14.
319. See supra text accompanying notes 181-212.
320. The term "exaction" - also used to describe compelled transfers of land to municipalities as a condition of subdivision approval - more accurately describes the practice, although note that the term "exaction" encompasses many more conditions in the subdivision approval process than the compelled transfer of land that is specifically described by the term, "mandatory dedication." See supra text accompanying notes 65-66.
321. See Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 837 (1987).
322. Dolan v. City of Tigard, 512 U.S. 374, 389 (1994).
323. For further discussion of this point, see supra notes 78-80 and accompanying text.
324. See supra notes 78-80 and accompanying text.
325. See supra notes 207-20 and accompanying text.
326. See Idaho Code § 50-1312 (Michie 2006)
327. Iowa Code Ann. § 354.19 (West 2005)
328. Minn. Stat. § 505.01 (2005)
329. Okla. Stat. tit 11, § 41-109 (2006)
330. Pa. Stat. Ann. tit. 53, § 10508 (West 2006)
331. Utah Code Ann. § 10-9a-607 (2006)
332. Wis. Stat. § 236.29 (2006).
333. McQuillin, supra note 187, § 33.44; see also 23 Am. Jur. 2d § 41 ("In some jurisdictions where land has been dedicated by the owner to public use in conformity with a statute, no formal acceptance is necessary to complete the dedication.")
334. In re Maintenance of Road Areas, 250 N.W. 2d 827, 831 (Minn. 1977) (emphasis added).
335. See, e.g., City of Molalla v. Coover, 235 P.2d 142, 146 (Or. 1951) (holding that "an irrevocable dedication results from the filing of a plat and the sale of lots with reference thereto and that the purchase of such lots constitutes a sufficient acceptance by the public"), Henderson v. Young, 103 A.719, 720 (Pa. 1918) (noting that "[i]f anything is to be regarded as settled, it is that, when one who is the owner of a tract of land in a municipality cuts it up into lots and sells them as laid out on a plan which be has adopted, showing streets and alleys thereon, there is not only an implied covenant by him to the owner of each lot that the streets and alleys, as they appear upon his plan, shall be forever open to the use of the public, but a dedication by him of the same as highways to the use of the public forever, and the municipality itself cannot extinguish the easement which each lot owner thus acquires") (emphasis added)
336. Copeland v. City of Dallas, 454 S.W.2d 279, 284 (Tex. 1970) (observing that "[i]t is well settled in Texas that a dedication once made, coupled with sales of lots, said sales having been made with reference to the map or plat constituting dedication, becomes binding and irrevocable" and further noting that "[t]here was no necessity for [municipal] ... acceptance [of dedication], for the right which vested in the purchasers of the different lots, and through them to the public, was irrevocable")
337. Highway Holding Co. v. Yara Eng'g Corp., 22 NJ. 119, 125-26 (N.J. 1956) (holding that "[w]hen lands are sold with reference to a map upon which lots and streets are delineated, there is a dedication of such streets to the public")
338. Vill. of Benld v. Dorsey, 142 N.E. 563, 565 (Ill. 1924) (holding that "where the owner of the land sells lots with reference to a plat or map on which a portion indicates a public use, he thereby dedicates such lands to the use of the public for the specified purpose")
339. Gowers v. City of Van Buren, 197 S.W.2d 741, 780 (Ark. 1946) (holding that "[w]here lots have been sold with reference to the plat, no formal acceptance by the city or town is necessary")
340. Whitaker v. Town of Tipton, 426 P.2d 336, 338 (Okla. 1966) (holding that "dedication of property to a municipality for use as a public way by a recorded plat is deemed perfected by the sale of lots with reference to the plat, without any affirmative official or other action on the part of the municipality").
341. Whitaker v. Town of Tipton, 426 P.2d 336, 338 (Okla. 1966).
342. McQuillin, supra note 187, § 33.45, at 437-38.
343. See, e.g., Brumbaugh v. County of Imperial, 184 Cal. Rptr. 11 (Ct. App. 1982)
344. City of Louisville v. Louisville Scrap Material Co., Inc. 932 S.W. 2d 352 (Ky. 1996)
345. Broussard v. Jablecki, 792 S.W.2d 535 (Tex. Ct. App. 1990)
346. Easton v. Koch, 31 A.2d 747 (Pa. 1943)
347. Bd. of County Comm'rs v. Lavington, 14 P.2d 493 (Colo. 1932).
348. McQuillin, supra note 187, § 33.45.
349. As to the general proposition that all municipal actions and decisions must be reasonable and non-arbitrary, see, e.g., City of Kansas City v. Jordan, 174 S.W.2d 25 (Mo. 2005)
350. State v. Reinke, 702 N.W.2d 308 (Minn. 2005)
351. Bal Harbor Vill. v. Welsh, 870 So. 2d 1265 (Fla. 2004)
352. State v. Teach, 418 S.E.2d 585 (W. Va. 1992)
353. Adrian v. Vill. of St. Paris, 465 N.E. 2d 1356 (Ohio 1983)
354. Simkins v. Davenport, 232 N.W.2d 561 (Iowa 1975)
355. Bartlett v. Zoning Comm'n of Town of Old Lyme, 282 A.2d 907 (Conn. 1971)
356. Gabe Collins Realty, Inc. v. City of Margate City, 271 A.2d 430 (N.J. 1970)
357. Lewis v. Mayor of Cumberland, 54 A.2d 319 (Md. 1947)
358. Snow v. Johnston, 28 S.E.2d 270 (Ga. 1943)
359. Vill. of W. Springs v. Bernhagen, 156 N.E. 753 (Ill. 1927)
360. Miller v. Bd. of Public Works, 234 P. 381 (Cal. 1925)
361. see also McQuillin, supra note 187, §§ 18.1-18.7.
362. As to the self-evident and fundamental proposition that all municipal actions and decisions must not be in conflict with state law, see, e.g., American Financial Serv. Ass'n v. City of Oakland, 104 P. 3d 813 (Cal. 2005)
363. Boston Edison Co. v. Town of Bedford, 831 N.E.2d 282 (Mass. 2005)
364. Entm't Indus. Coalition v. Tacoma-Pierce County Health Dept., 105 P.3d 985 (Wash. 2005)
365. Smith v. Town of Pittston, 820 A.2d 1200 (Me. 2003)
366. Mich. Coalition for Responsible Gun Owners v. City of Ferndale, 662 N.W. 2d 864 (Mich. 2003)
367. Craig v. County of Chatham, 565 S.E.2d 172 (N.C. 2002)
368. City of Atlanta v. McKinney, 454 S.E.2d 517 (Ga. 1995)
369. Gillis v. City of Madison, 540 N.W.2d 114 (Neb. 1995)
370. Cincinnati v. Thompson, 643 N.E.2d 1157 (Ohio 1994)
371. Pac. Intern. Serv. Corp. v. Hurip, 873 P.2d 88 (Haw. 1994)
372. Inst. for Evaluation & Planning Inc. v. Bd. of Adjustment, 637 A.2d 235 (N.J. 1993)
373. Ling Ling Yung v. County of Nassau, 571 N.E.2d 669 (N.Y. 1991)
374. City of Richardson v. Responsible Dog Owners of Tex., 794 S.W.2d 17 (Tex, 1990)
375. Laborers' Int'l Union of N. Am., Local 478 v. Burroughs, 541 So. 2d 1160 (Fla. 1989)
376. Duff v. Twp. of Northhampton, 532 A.2d 500 (Pa. 1987)
377. see also McQuillin, supra note 187, § 15:18.
378. More particularly, as the foregoing analysis in the preceding text makes clear, the precise modes of municipal acceptance of dedication vary considerably among the states. Although the modes of acceptance may vary, the law of dedication in effect in all of the states uniformly requires individualized consideration by the municipality of an offer to dedicate. This individualized consideration is intrinsic to the still-extant common law of dedication, as well as to the statutory law of dedication that has been adopted in many states. See supra notes 183-220, 237-46 and accompanying text; see also McQuillin, supra note 187, §§ 33:43, 44, 45 (noting that "[i]t is elementary that ... an [individual] offer to dedicate must be accepted either by [individual] public user or formal act," although further noting that, in some states, the enactment of a dedication statute often has the effect of making individual acceptance of dedication effective by operation of law without the need for formal municipal action).
379. See, e.g., Grabnic v. Doskocil, 2005 Ohio 2887 (Ohio Ct. App. 2005) (noting that dedication of driveway would "no[t] ... make sense," in view of the fact that driveway "would be a dead end road leading up to a single street address" and "would be nothing more than a private drive maintained at the municipality's expense.").
380. See Loghini & Mosena, supra note 31, at 9 (noting that "[m]ost cities will not accept for dedication any [private] facilities that were not built to public [design and construction] standards").
381. See supra notes 227-28 and accompanying text.
382. See Rohan I, supra note 19, § 45.01.
383. See supra note 249 and accompanying text.
384. 82 C.J.S. STAT. § 351 (2005)
385. see also N. Natural Gas Co. v. Grounds, 441 F. 2d 704 (10th Cir. 1971)
386. Merrill v. Dep't of Motor Vehicles, 458 P.2d 549 (Cal. 1969)
387. In re A.W., 230 So. 2d 200 (Fla. 1970)
388. State v. Newman, 469 N.W.2d 394 (Wis. 1991).
389. See e.g., Edmond v. United States, 520 U.S. 651, 657 (1997)
390. Bowens v, Superior Court, 820 P.2d 600 (Cal. 1991).
391. In any event, assume that there were indeed an implicit conflict between, on the one hand, state subdivision enabling statutes - concededly broad in their delegation of authority to municipalities - as an implicit grant of authority to permit municipalities to categorically prohibit dedication, and, on the other hand, the existing state law of voluntary dedication that expressly authorizes a voluntary dedication scheme grounded on individualized "offers" and "acceptances" of dedication. Assuming such a conflict were to exist, then, in that event, the conflict must be resolved in favor of the specific law and against the general law, i.e., in favor of the narrowly focused voluntary dedication law and against the generalized state subdivision enabling act. See Edmond v. United States, 520 U.S. 651, 657 (1997)
392. Bowens v. Superior Court, 820 P.2d 600 (Cal. 1991).
393. See supra note 213 and accompanying text.
394. See, e.g., Thompson v, Thompson, 218 U.S. 611 (1910)
395. Haven v. Polska, 215 F.3d 727 (7th Cir. 2000), cert. denied, 121 S. Ct. 573 (2000)
396. Books-A-Million, Inc. v. Ark. Painting and Specialties Co., 10 S.W.3d 857 (Ark. 2000)
397. In re Water Use Permit Applications, 9 P.3d 409 (Haw. 2000)
398. Thibodeau v. Slaney, 755 A.2d 1051 (Me. 2000)
399. Barnard v. Rowland, 512 S.E.2d 458 (N.C. Ct. App. 1999).
400. Norman J. Singer, 2b Sutherland on Statutory Construction § 50.01, at 140 (6th ed. 2000) (2006 supp.).
401. See supra notes 216-18 and accompanying text.
402. As previously noted, in some states the municipal power to refuse dedication is circumscribed by existing law, in that such law deems municipal acceptance of dedication to have occurred upon the completion of certain acts by the dedicator. See supra text accompanying notes 237-41.
403. Note that the constitutional theories set forth here are offered in addition to - and not necessarily as an integral or essential part of - the principal state law arguments offered in the preceding section.
404. Lucas v. S.C. Coastal Comm'n, 505 U.S. 1003, 1029 (1992)(observing that, as a general proposition, ownership in real property necessarily encompasses "background principles of the State's law of property[,] ... which inhere in the title itself').
405. In Lucas, the Court held that the state's deprivation, by way of regulation, of all economically viable uses of real property constitutes a per se compensable taking under the Fifth Amendment. Lucas, 505 U.S. at 1027-29. Of relevance here, the Court's "regulatory taking" analysis was informed by, and made subject to, state law principles of property and nuisance. Id. at 1029. Under Lucas, even if a regulation were to have the effect of prohibiting all economically beneficial use of a particular parcel of land, the owner of the parcel nevertheless would not be entitled to compensation, provided the regulation were in accord with "background principles of the State's law of property." Id. Thus, in the context of a claimed regulatory taking based on a total deprivation of economically viable use, the Lucas doctrine of "background principles" operates as a defense against such a "takings" claim. In the present context, the invocation of the Lucas "background principles" doctrine is admittedly somewhat paradoxical. Public service exactions - at issue here - constitute a sort of "mirror image" of the regulatory taking at issue La Lucas. Put simply, the right at issue here is not the fight to avoid an uncompensated taking but rather the right to have property taken for public use under the state law doctrine of dedication. In this context, the Lucas doctrine of "background principles" is properly understood as a "sword" rather than as a "shield." The mirror-image of Lucas, although perhaps alluring, is a distraction. The import of Lucas is that it establishes that, as a general proposition, ownership in real property necessarily encompasses "background principles of the State's law of property[,] ... which inhere in the title itself." Id. As described in the text above, it is this general proposition of constitutional law, standing alone, that is readily applicable to the issues here presented.
406. Friends of the Trails v. Blasius, 78 Cal. App. 4th 810, 824 (2000).
407. Lucas, 505 U.S. at 1029.
408. John Hart Ely, Democracy and Distrust 117 (1980).
409. Id. at 103.
410. See supra text accompanying notes 64-65 and 143-146.
411. See id.
412. Of course, future residents of any community play no direct role in the establishment or ratification of a community's legal regime. To cite only the most obvious example: none of us were alive when the Constitution was ratified. But there exists a critical distinction between (on the one hand) the establishment of a legal regime by what may be fairly characterized as the future residents' predecessors-in-interest and (on the other hand) the circumstances here presented. As previously noted, a municipality, under present law, has virtually unfettered discretion to impose public service exactions and to categorically deny dedication. See supra notes 57-65 and 82-135 and accompanying text. Thus, even assuming the developer could be said to be the future residents' predecessor-in-interest (a problematic formulation, in any event), the developer is in no position, under current law, to overcome the municipality's interests, which are to minimize its own expenditures (through public service exactions, and to maximize its revenues. See Parts II and III, supra. Those interests are antithetical to the interests of the future residents of the subdivision. In short, the future residents of a community association (that is established as a consequence of the municipal imposition of a public service exaction) presently have no effective predecessor-in-interest within the context of the land use approval process that gave rise to the public service exaction.
413. See McKenzie, supra note 2, at 21, 127; U.S. Advisory Comm'n, supra note 1, at 16. As Professor McKenzie notes, changes to community-association rules are rendered particularly difficult because the governing documents typically require a supermajority not just of those who have cast a vote, but rather of all who are eligible to vote by virtue of ownership in the community association. McKenzie, supra note 2, at 21. For this reason, among others, "The developer's idea of how people should live is, to a large extent, cast in concrete." Id.
414. See supra ntoes 159-160, 177 and accompanying text.
415. See supra ntoes 151-152 and accompanying text.
416. See id.
417. Indeed, it should not be forgotten that the American Revolution was fought in part because of the colonists' revulsion with a regime of "taxation without representation."
418. As previously noted, municipalities imposing public service exactions do so with seemingly unfettered discretion. See supra notes 57-65 and 82-135 and accompanying text. I have not found a single published decision challenging a municipality's authority to require a subdivision developer to establish a community association as a condition of land use approval or to assume responsibility for traditionally municipal services as a condition of land use approval.
419. The phenomenon of the privatization of traditionally municipal functions and services through the establishment of community associations has been termed "the most significant privatization of local government responsibilities in recent times" U.S. Advisory Comm'n, supra note 1, at 18. Consider other privatization initiatives, such as, for example, periodic proposals to privatize Social Security. Whatever the merits of privatizing Social Security, one would hope that such a far reaching privatization proposal would be subjected to rigorous scrutiny and review by all interested parties. The point here is that "the most significant privatization of local government responsibilities in recent times" has not only been not subject to rigorous scrutiny or review, the process has been largely invisible.
420. As a practical matter, only the developer could be expected to have standing to bring suit against a municipality to overturn a public-service exaction at the time of its imposition. Thus, although the representation-reinforcement theory would, in this context, be intended to ultimately benefit the future residents of the community, the successful application of the theory would require the developer to, in effect, "stand in the shoes" of the future residents. For further discussion of this point, see infra notes 287-88 and accompanying text.
421. Ely, supra note 267, at 117.
422. Representation-reinforcement, of course, is a theory of constitutional iuterpretation, not an independent source of constitutional authority. The theory provides a rationale for an expansive and stringent application of the Constitution's equal protection and due process guarantees to the municipal decision-making process here at issue, including a municipality's categorical rejection of the state law of voluntary dedication and a municipality's imposition of public service exactions.
423. As previously noted, there is a strong historical correlation between (on the one hand) municipal ownership of streets and (on the other hand) municipal responsibility or obligation to provide services directly related to, or ancillary to, the public street, i.e., street maintenance, street lighting, snow removal, utilities, curbside refuse removal, and public police patrols. See supra notes 182-184 and accompanying text. In most states, it is likely that, once a street is dedicated to a municipality, most or all of the aforementioned services become a municipal responsibility by operation of law. Thus, it is unlikely that, if the remedy here proposed were to be adopted by courts, a municipality could - on its own initiative and without a change in underlying state law - uncouple the obligation to provide the full complement of municipal services on dedicated property from the acceptance of the dedicated property.
424. See supra notes 207-220 and 237-241 and accompanying text.
425. As previously noted, in some states the municipal power to refuse dedication is circumscribed by existing law, in that such law deems municipal acceptance of dedication to have occurred upon the completion of certain acts by the dedicator. See supra text accompanying notes 237-241.
426. See supra notes 246-249 and accompanying text.
427. See supra notes 262-280 and accompanying text.
428. See supra notes 248-249 and accompanying text.
429. Although the judicial remedy here proposed is principally intended to be applied in the context of a developer's application for land use approval, the remedy could be made applicable, as well, as a means for an existing community association to effect dedication of private infrastructure to a municipality. In particular, the remedy might be applicable when a community association desires a municipal takeover of its private infrastructure, such as roads or sewers, as a means to reduce homeowner fees or to alleviate financial distress of the association. For a discussion of the special considerations that apply in this context - including the requirement that the private infrastructure conform to municipal construction standards prior to municipal takeover - see infra notes 298-301 and accompanying text.
430. Of course, many developers might not wish to antagonize municipal officials through aggressive litigation, particularly in light of municipal officials' substantially unfettered discretion - under the PUD zoning regime - to impose various requirements on developers as a condition of land use approval. That is to say: an aggressive litigation strategy on the part of the developer may not be consistent with the "institutionalized bargaining" implicit in the PUD zoning regime. See supra notes 57-65 and accompanying text.
431. Southern Burlington County NAACP v. Township of Mount Laurel, 456 A.2d 390, 452-60 (1983) (establishing, under the authority of the New Jersey Constitution, a "builder's remedy" aimed at requiring municipalities to adopt zoning provisions that permit affordable housing for the benefit of moderate- and middle-income households).
432. Mayor of New Orleans v. United States, 35 U.S. (10 Pet.) 662, 712 (1836).
433. Id. at 712.
434. As to the many reasons that the public interest and the narrowly defined fiscal interest of municipalities do not coincide, see Points IV.A.-F., supra.
435. See supra notes 148-53 and accompanying text.
436. See supra notes 152-53 and accompanying text.
437. See supra notes 153-54 and accompanying text.
438. See supra notes 200-12 and accompanying text.
439. See supra notes 229-33 and accompanying text.
440. "Flexibility in design standards [of subdivision infrastructure], although allowing local governments bargaining power, has led, in many cases, to design and construction deficiencies in some of the private facilities owned and operated by [community associations]... The reason these facilities did not have to meet public standards is because the facilities remain private." Loghini & Mosena, supra note 31, at 3 (emphasis added).
441. At least one commentator has characterized local governments' two-tiered construction standards for public streets and private streets as more than merely an incentive to privatize the streets. James Dowden states: "Local governments which are not willing to relax their design and construction standards for streets and roads, but which permit lesser standards for private roads, literally force the developer of a cluster development to rely on a homeowners association." Dowden, supra note 31, at 11 (emphasis added).
442. See Loghini & Mosena, supra note 31, at 9 (noting that "[t]he most serious barrier to [municipal acceptance] of public dedication [of private facilities owned by community associations] is that the facilities are often not built to public standards," and further noting that "[t]he problem is that many [community associations] cannot afford to bring the facilities up to public standards"); Rohan II, supra note 52, § 12.02(2) (noting that many community associations are placed in a difficult financial position by reason of a developer's decision to build private roads to lower design or construction standards, thereby greatly complicating and making more expensive any future efforts by the community association to gain municipal acceptance of dedication of the private roads).
443. Note that these legislative proposals do not affect a municipality's authority to impose traditional exactions, as distinct from public service exactions. As previously noted, traditional exactions commonly take the form of compelled dedication of land and/or a requirement that a developer construct subdivision infrastructure and, upon completion of construction, turn over the infrastructure to the municipality. Traditional exactions also take the form of fees paid by the developer to the municipality in lieu of mandatory dedication or mandatory capital construction by the developer. See supra notes 68-69 and accompanying text. Traditional exactions serve to reduce a municipality's capital costs, public service exactions reduce the municipality's operating costs.
444. In 1990, New Jersey became the first state to require all of its municipalities to provide certain municipal services to qualifying community associations, or, in the alternative, to require municipalities to reimburse community associations for the value of the services furnished by the associations themselves. N.J. Stat. Ann. §§ 40:67-23.2 to -23.8 (West 2006). Covered services include refuse collection, snow removal, and street lighting. See id. § 40:67-23.3. The annual cost to all New Jersey municipalities of complying with this state mandate was estimated, at the inception of the legislative program, at $62 million.
445. See Senate Revenue, Finance and Appropriations Committee Statement, S. Rep. No. 2869, c. 299 (1989)
446. reprinted in N.J. Stat. Ann. § 40:67-23.2 (West 2006). Although no other state has yet followed New Jersey's lead, certain local governments, such as Houston and Montgomery County in Maryland, have adopted similar measures in which direct government aid is provided to community associations.
447. See Dowden, supra note 31, at 46; U.S. Advisory Comm'n, supra note 1, at 12-14.
448. If, on the other hand, the municipality were itself to furnish municipal services on the association's property (i.e., street maintenance, snow removal, curbside trash collection), issues might well arise concerning whether the association's streets were built to the requisite standards that the municipality imposes upon its own public streets. Such standards typically pertain to design and construction specifications deemed necessary for the safety of municipal vehicles.
449. It is even possible that a community association's entanglement with government arising from its acceptance of taxpayer funds might - together with the fact that larger territorial community associations are, in some respects, the functional equivalent of a municipality - trigger a finding that the community association is a quasi-municipal entity or state actor under federal or state constitutional law. See Siegel, supra note 157, at 524-29. Many, if not most, boards of community associations probably would not view this as a favorable development, in that such a judicial finding inevitably would subject the association board's decision-making to a more stringent standard than is presently the case.
450. Some might object to this analysis by reason of the fact that it would enlarge the "public sector." These same objectors also would no doubt put forth the widely held view that the public sector is inherently more inefficient than the private sector, thereby undercutting any possible cost advantage that might be gained from the economies of scale of consolidating municipal and association services under municipal control. But even if this view were to be correct, the view is largely irrelevant to what is being proposed here. The mere fact that the services would be consolidated under municipal control does not mean that the persons actually performing the services would be government employees. It is quite typical, particularly in the Sunbelt (where most community associations are situated), that municipal services, such as curbside refuse collection, are contracted-out by government to private companies. Indeed, it would not be surprising if the same company that provided the service under contract to the community association would, after municipal takeover, perform the service on behalf of the municipality.
451. See supra note 300 and accompanying text.
452. At least one municipality is reported to have adopted such a financing program. The City of Gaithersburg, Maryland, established a zero-interest loan program to finance the upgrade of association-owned water and sewer systems so as to enable associations to satisfy municipal standards for these systems prior to dedication. Loghini & Mosena, supra note 31, at 9.