Public communities, private rules

Georgetown Law Journal

Volumn 98, Issue 3, 2010, Pages 697-768

  Wiseman, Hannah ^a  

^a UNIVERSITY OF TEXAS   (United States)

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EID: 77951930387     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (546)

1. See, e.g., JILL. GRANT, PLANNING THE GOOD COMMUNITY: NEW URBANISM IN THEORY AND PRACTICE 58 (2006) (explaining that in new urbanist design, which aims to create better communities, "[f]ront porches on the houses ... enhance social interaction in the neighbourhoods").
2. See, e.g., JANE JACOBS, THE DEATH AND LIFE OF GREAT AMERICAN CITIES 75 (1961) (describing a documentary by Charles Guggenheim which followed children at a day care center in St. Louis and found that those who happily raced home at the end of the day came from a neighborhood that had many streets bordered by shops and homes and provided a safe environment for play);
3. Alex Krieger, Since (and Before) Seaside, in TOWNS AND TOWN-MAKING PRINCIPLES 9, 11 (Alex Krieger & William Lennertz eds., 1991) (explaining how certain types of communities can provide "a place for nurturing farmly and for cultivating one's homestead").
4. See, e.g., ANDRES DUANY ET AL., SUBURBAN NATION 80-81 (2000) (arguing that "[f]or people to walk, a neighborhood has to be interesting. [Architecture that fails to express the presence of humans is unsatisfying to the pedestrian.").
5. See, e.g., James Q. Wilson & George L. Kelling, Broken Windows, ATLANTIC, Mar. 1982, at 31 (arguing that "at the community level, disorder and crime are usually inextricably linked" and that "[s]ocial psychologists and police officers tend to agree that if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken").
6. Within this Article, "community aesthetic" created by rules refers to the overall appearance of the community: whether the homes look new or old, modest-sized or stately, and whether garages are prominent or hidden, for example. It also, however, refers to driveways (are wide cul-de-sacs allowed, for example?), the placement of objects such as trash cans, and the landscaping and accessory structures that are permitted, such as fences, small apartments, or sheds. This is similar to what Lee Fennell terms "premium ambience" and "neighborhood aesthetics." Lee Anne Fennell, Contracting Communities, 2004 U. III. L. REV. 829, 843, 847 (2004). Many factors beyond the scope of this Article, such as local environmental quality and law enforcement, will also affect a homeowner's enjoyment of her property.
7. Id. at 843.
8. See GRANT, supra note 1, at 10-11 (arguing that "globalization requires communities to improve the quality of local places to compete for capital and labour").
9. Between 1976 and 1992, American development grew by 48%, but new development typically occurred within or near previously developed areas, taking up only 0.6% of previously undeveloped land. Marcy Burchfield et al., Causes of Sprawl: A Portrait from Space, 121 QJ. ECON. 587, 591 (2006);
10. see also Robert E. Lang & Meghan Zimmerman Gough, Growth Counties: Home to America's New Suburban Metropolis, in 3 REDEFINING URBAN AND SUBURBAN AMERICA: EVIDENCE FROM CENSUS 2000, 61, 61 (Alan Beruhe et al. eds., 2006) (identifying the fastest growing counties in America, which tend to be in "large metropolitan areas," such as Houston and Las Vegas).
11. See, e.g., Richard A. Epstein, Covenants and Constitutions, 73 CORNELL L. REV. 906, 916 (1988) (arguing that mechanisms such as private covenants "become ever more important today when the high price of land makes the ideal of separate and self-contained ownership a luxury that few people ... can afford").
12. Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416, 418 (1956).
13. See, e.g., DANIELLE ARIGONI, SMART GROWTH NETWORK SUBGROUP ON AFFORDABLE HOUS., AFFORDABLE HOUSING AND SMART GROWTH: MAKING THE CONNECTION 23 (2001), http://www.smartgrowthameri-ca.org/affordable-housing.pdf (discussing how rules that allow "accessory units to be created- to serve as the principal residence for aging family members or as an additional source of rental income" helps to make housing more affordable);
14. see also ROBERT H. NELSON, ZONING AND PROPERTY RIGHTS: AN ANALYSIS OF THE AMERICAN SYSTEM OF LAND USE REGULATION 15 (1977) (discussing how the "less well-off ' SoHo artists "persuaded the New York City government" to make artist certification "a zoning requirement for SoHo residency" and how zoning "has ... on occasion been employed to protect poorer people against better-off people").
15. See Richard Briffault, The Rise of Sublocal Structures in Urban Governance, 82 MINN. L. REV. 503, 508 (1997) (defining a "sublocal [governmental or quasi-governmental] structure[]" as one that "represents a departure from the traditional centralized 'big city'").
16. See Lee Anne Fennell, Exclusion's Attraction: Land Use Controls in Tieboutian Perspective, in THE TIEBOUT MODEL AT FIFTY: ESSAYS IN PUBLIC ECONOMICS IN HONOR OF WALLACE OATES 163, 164, 166 (William A. Fischel ed., 2006) (observing that the "foot-shopper" is "buying a daily living environment in a particular neighborhood and section of the metro area").
17. The Supreme Court affirmed the constitutionality of what is now known as Euclidean zoning in Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395-96 (1926), but by then many cities already had zoning ordinances or codes that resembled zoning ordinances.
18. See, e.g., City of Aurora v. Burns, 149 N.E. 784, 785,.788-89 (D.J. 1925) (discussing Aurora's building zone ordinance and affirming its validity);
19. People ex rel. Stevens v. Clark, 213 N.Y.S. 350, 350 (Sup. Ct. 1925) (observing that there,is "no question about the validity of the zoning ordinance of the city of White Plains");
20. State ex rel. Morris v. City of East Cleveland, 31 Ohio Dec. 98, 1, 14 (Ohio Com. Pl. 1919) (holding East Cleveland's building zones ordinance constitutional).
21. See, e.g., Fennell, supra note 5, at 832 (discussing the "burgeoning literature on private developments").
22. See ROBERT H. NELSON, PRIVATE NEIGHBORHOODS AND THE TRANSFORMATION OF LOCAL GOVERNMENT 53 (2005) (describing how private restrictions "usually include elements that go well beyond conventional zoning in the public sector");
23. see also infra note 17.
24. See Robert H. Nelson, Privatizing the Neighborhood: A Proposal to Replace Zoning with Private Collective Property Rights to Existing Neighborhoods, 7 GEO. MASON L. REV. 827, 835 (1999) (describing how "except where an historic or other special district can be justified, zoning does not cover the fine details of neighborhood architecture ... and other aesthetic factors that may have a major impact on the character of the neighborhood").
25. See George W Liebmann, Devolution of Power to Community and Block Associations, 25 URB. LAW. 335, 368-69 (1993) (discussing the "present unavailability of the association device in already developed areas, where associations cannot be imposed by covenant except by unanimous consent").
26. See, e.g.. NELSON, supra note 16, at 266 (arguing that "[a] group of individual property owners in an older estabhshed neighborhood" should be able to "petition the state to form a private neighborhood association");
27. Robert C. Ellickson, New Institutions for Old Neighborhoods, 48 DUKE L.J. 75, 97-99 (1998) (suggesting that in some urban areas, "extraordinary [private] Regulatory [Block Level Improvement Districts] BLIDs" could be formed but focusing more on the opportunities for nonregulatory BLIDs, which would contract for private provision of "public" goods and services such as tree care and street cleaning and assess those who benefited);
28. Liebmann, supra note 18, at 369 (suggesting serviceoriented private associations for existing public neighborhoods).
29. There is an ongoing debate as to what constitutes a "public" as opposed to a "private" community. See, e.g., Robert C Ellickson, Cities and Homeowners Associations, 130 U. PA. L. REV. 1519, 1521-23 (1982)
30. (citing Frank Michelman, States' Rights and States' Roles: Permutations of 'Sovereignty' in National League of Cities v. Usery, 86 YALE L.J. 1165, 1167 (1977)) (arguing that homeowners' associations fit nearly all of the characteristics of a public government as defined by Frank Michelman). I view public communities as those ultimately governed by a municipal government, which lack an intervening private authority such as a property owners' association.
31. See, e.g., id. at 1519 (describing "[t]he association" as "the obvious private alternative to the city").
32. For a discussion of why private neighborhood associations are distinctly "private," see NELSON, supra note 16, at 11-12.
33. Others have touched upon the individual facets of this broader trend that I describe. See, e.g., RICHARD F. BABCOCK & WENDY U. LARSEN, SPECIAL DISTRICTS: THE ULTIMATE IN NEIGHBORHOOD ZONING 3 (1990) (describing the "special district phenomenon," which is similar to other "discrete regulatory districts targeted to a limited number of parcels");
34. Marc B. Mihaly, Living in the Past: The Kelo Court and Public-Private Economic Redevelopment, 34 EcoL. L.Q. 1, 36 (2007) (discussing the trend toward the "Planned Unit Development overlay and the Specific Plan" and describing it as a "quiet land use revolution");
35. Glen O. Robinson, Communities, 83 VA. L. REV. 269, 286-87 (1997) ("The construction of privately planned and regulated residential neighborhoods has become a ubiquitous feature of modern urban life.");
36. Robert J. Sitkowski & Brian W. Ohm, Form-Based Land Development Regulations, 38 URB. LAW. 163, 163 (2006) (noting that "[t]he form-based approach to new urbanist land use regulation [that creates a certain type of defined community] has, up until recently, been applied mainly in private-covenanted regimes").
37. See, e.g., LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, NEIGHBORHOOD DESIGN (ND-1) OVERLAY ZONING 2, http://www.lexingtonky.gov/Modules/ShowDocument.aspx? documentid=2070 (last visited Oct. 5, 2009) (describing one purpose of neighborhood design overlay zoning as creating "design standards to preserve and protect the character of your neighborhood").
38. See Brian W. Ohm & Robert J. Sitkowski, The Influence of New Urbanism on Local Ordinances: The Twilight of Zoning?, 35 URB. LAW. 783, 785 n.10 (2003) (describing overlay zones).
39. See, e.g., LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, supra note 22, at 2 (describing one purpose of the neighborhood design overlay as "discourag[ing] environmental conflicts of new construction");
40. Briffault, supra note 12, at 516 (describing a special manufacturing zoning district in Chicago that "restricts new residential and retail development to assure industrial firms enough space to expand their facilities").
41. See, e.g., LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, supra note 22.
42. See, e.g., Briffault, supra note 12, at 516 (describing New York's "Special Clinton District," which "protects the working-poor residents of an area expected to undergo new development by limiting building heights, imposing tight restrictions on building demolitions," and other measures);
43. Rudolph Bush, Overlay Zoning Tool Divides Dallas Neighbors Over Property Rights, DALLAS MORNING NEWS, Mar. 11, 2008 at 6A (describing the purpose of the overlay as a way "to give older, established neighborhoods a way to preserve their scale ... where... giant new houses have sprouted up");
44. CITY OF SEATTLE, PIKE/PINE URBAN CENTER VQXAGE DESIGN GUIDELINES 2 (2000), http://www.cityofseattle.net/dpd/news/DesignGuide/PikePine2000.PDF (implementing aspects of the neighborhood plan through an official, city-adopted document);
45. City of Dallas Sustainable Dev. & Constr., CURRENT PLANNING NEIGHBORHOOD STABOJZATION OVERLAY, http://www.dallascityhall.com/development- services/neighbor-hood-overlay.html (last visited Jan. 5, 2008) (describing the purpose, process, and requirements of the Neighborhood Stabilization Overlay);
46. PIKE/PINE URBAN NEIGHBORHOOD COALITION, PIKE/PINE URBAN CENTER VILLAGE NEIGHBORHOOD PLAN PHASE TWO 16 (1998), http://www.seattle.gov/neighborhoods/npi/ plans/ppine/Section3.pdf (aiming to extend a neighborhood overlay in the Pike/Pine neighborhood in Seattle "for the purpose of allowing development of mixed-use structures with housing," which would in turn "[p]reserve and [ejncourage [a]ffordable and [m]arket-[r]ate [h]ousing").
47. Briffault, supra note 12, at 515.
48. See, e.g., Daniel R. Mandelker, Legislation for Planned Unit Developments and Master-Planned Communities, 40 URB. LAW. 419, 420 (2008).
49. Planned unit developments are also built in suburbs to form some of the typical subdivisions that I have described as a private covenanted community, id. at 421, but this Article will highlight their differences, which arise in the urban context.
50. See infra notes 183-84 and accompanying text.
51. See Mandelker, supra note 28, at 420.
52. See, e.g., RICHMOND, MICH., ZONING ORDINANCE art. 20, §20.05(c)(2) (2008) (describing the Planned Unit Development (PUD) Overlay District, which requires the development to include "[provisions ... to provide for financing of improvements and maintenance for open spaces and other common areas");
53. SAN ANTONIO, TEX., UNIFIED DEVELOPMENT CODE art. III, div. 5, §35-344(i) (2009) (requiring, in the Planned Unit Development District, the developer to make provisions for "a property owners' association that is designated as the representative of the owners of property in a residential subdivision," which "shall have the direct responsibility to provide for the operation and maintenance of all common areas and facilities").
54. Rule-bound communities are exclusionary because requiring a certain type of aesthetic can eliminate a large number of community consumers from the buyer pool. See Lior Jacob Strabilevitz, Exclusionary Amenities in Residential Communities, 92 VA. L. REV. 437, 470-71 (2006) (discussing how communities may use "exclusionary amenities," such as golf courses, and a requirement that homeowners pay fees to maintain the course to exclude a large segment of the population along racial lines);
55. see also Fennell, supra note 13, at 173 (discussing how zoning policies can "directly affect the consumption and behavior patterns of residents").
56. But see Briffault, supra note 26;
57. infra note 159 and accompanying text (discussing how some types of rule-bound communities can benefit low-income residents).
58. See NELSON, supra note 16, at 6 (arguing that "[z]oning creates new collective property rights that establish positive incentives for building and maintaining attractive neighborhood environments");
59. see also Fennell, supra note 13, at 171 (arguing, in the context of a typical public neighborhood, that the "aesthetics of the living environment... are out of the homeowner's control").
60. See, e.g., Liebmann, supra note 18, at 337 ("The increased use of and demand for special zoning districts and historic districts in metropolitan areas provides an indication that existing forms of American local government do not fully meet public needs.").
61. Charles M. Haar, The Twilight of Land Use Controls: A Paradigm Shift?, 30 U. RICH. L. REV. 1011, 1019(1996).
62. See WILLIAM A. FISCHEL, THE HOMEVOTER HYPOTHESIS: How LOCAL VALUES INFLUENCE LOCAL GOVERNMENT TAXATION, SCHOOL FINANCE, AND LAND-USE POLICIES 9 (2001) (explaining that homeowners are concerned about neighbors* land uses that might "adversely affect the value" of a home).
63. See Clayton P. Gillette, Courts, Covenants, and Communities, 61 U. CHI. L. REV. 1375, 1395 (1994) (describing how covenants in private communities provide "a stabilizing precommitment device against changing preferences");
64. see also Josh Eagle, The Practical Effects of Delegation: Agencies and the Zoning of Public Lands and Seas, 35 PEPP. L. REV. 835, 857 (2008) (arguing that "[i]n order for zoning to produce the benefits it promises, users must perceive zones and zone rules as fairly durable over time").
65. See Fennell, supra note 5, at 860, 891.
66. The term "governance" is used loosely here to refer to the procedures for implementing, applying, enforcing, and modifying the rules, whether through a planning commission, a city council, a homeowners' association, or otherwise.
67. See, e.g., Ralph A. Newman & Frank R. Losey, Covenants Running with the Land and Equitable Servitudes: Two Concepts, or One?, 21 HASTINGS L.J. 1319, 1323 (1970) (discussing how the purpose of the privity of estate requirement has changed over time);
68. id. at 1332 (discussing how, as early as 1583, covenants were required to "touch or concern the land" in order to run with the land).
69. See infra notes 65, 98-105, 151-58 and accompanying text.
70. See, e.g., Klaus Frantz, Private Gated Neighbourhoods: A Progressive Trend in U.S. Urban Development, in PRIVATE CITIES: GLOBAL AND LOCAL PERSPECTIVES 64, 68 (Georg Glasze et al. eds., 2006) (describing the large number of private gated communities "in the urban areas of the Sunbelt states").
71. See Steven J. Eagle, Privatizing Urban Land Use Regulation: The Problem of Consent, 7 GEO. MASON L. REV. 905, 906 (1999) ("In some metropolitan areas, such as Los Angeles and San Diego, [the percentage of housing units in private covenanted communities] exceeds seventy percent.");
72. Paula A. Franzese & Steven Siegel, Trust and Community: The Common Interest Community as Metaphor and Paradox, 72 Mo. L. REV. 1111, 1125 (2007) (describing how "nearly all new residential development in many quick growth regions is within the province of a homeowners association");
73. Steven Siegel, 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, 38 URB. LAW. 859, 867 (2006) ("In the largest metropolitan areas, more than 50 percent of new home sales are connected to a community association.").
74. "Community" is not an ideal term to describe areas defined only by their physical existence, their boundaries, and their unique sets of rules. "Community" implies togetherness, oneness, and agreement.
75. See, e.g., ROBERT D. PTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY 273-74 (2000) (discussing the "sense of belonging" that defines community). But many residents of rule-bound communities do not feel such camaraderie.
76. See, e.g., Paula A. Franzese, Does It Take a Village? Privatization, Patterns of Restrictiveness and the Demise of Community, 47 VILL. L. REV. 553, 575 (2002) (describing "acrimony and conflict" in private covenanted communities). The alternative terms, however, raise similar problems. Rule-bound "zones" would suggest that rules are accomphshed only through zoning;
77. to the contrary, a good number of rule-bound communities are defined by covenants. See supra note 43 and accompanying text. As such, we are stuck with the term community, for now.
78. More than seventy-five percent of the fifty-one neighborhood planning groups surveyed in the 1980s indicated that they used physical boundaries as one factor when defining their neighborhood. WILLIAM H. ROHE & LAUREN B. GATES, PLANNING WITH NEIGHBORHOODS 8, 73 (1985);
79. see also John J. Fahsbender, Student Article, An Analytical Approach to Defining the Affected Neighborhood in the Environmental Justice Context, 5 N.Y.U. ENVTL. L.J. 120, 123 (1996) ("At a minimum ... the concept of neighborhood always includes the notion of an area that can be physically defined, if only in general terms.").
80. See, e.g., GERALD SUTTLES, THE DEFENDED NEIGHBORHOOD 242, 250 (1972) (defining "neighborhood" partially by "name and identity").
81. Ellickson, supra note 19, at 80.
82. Briffault, supra note 12, at 508. These recent sublocal structures included "enterprise zones, tax increment finance districts, special zoning districts, and business improvement districts." Id.
83. Ellickson, supra note 19, at 80-85.
84. Id. at 85-87. An institution analogous to a block-level institution was, according to Ellickson, the residential community association (what this Article calls a "private covenanted community").
85. See id. at 81. Limited business improvement districts and residential community associations were sufficiently large to count as "neighborhood- level institutions." Id. at 88.
86. Id. at 96.
87. The central purpose of the business improvement district discussed by Ellickson and Briffault, for example, is to provide special yet "traditional municipal services" to businesses within discrete geographic areas.
88. See Briffault, supra note 12, at 521-22. Although business improvement districts also provide regulations specific to the district, this is often a collateral purpose.
89. See id. (explaining that the BID "sometimes increases regulation").
90. Although the Article discusses some regimes, such as the private covenanted community and the hybrid community, which offer sublocal services and special assessments in addition to sublocal rules, it focuses only on these regimes' rules.
91. See, e.g., Alejandro Esteban Camacho, Mustering the Missing Voices: A Collaborative Model for Fostering Equality, Community Involvement, and Adaptive Planning in Land Use Decisions: Installment One, 24 STAN. ENVTL. L.J. 3, 10 (2005) (describing bulk controls, "height and mass limits," and the separation of "incompatible uses" as elements of the traditional zoning model);
92. Nelson, supra note 17, at 835 (describing zoning's typical provisions, such as setbacks and lot size).
93. See, e.g., CITY OF MILWAUKEE, DEP'T OF CITY DEV., EAST VDXAGE NEIGHBORHOOD CONSERVATION OVERLAY DISTRICT, available at http://www.mkedcd.org/ planning/plans/NC/EastVillage/EastVillageExhibitC.pdf (last modified Mar. 29, 2005) (requiring fences to be "fifty percent transparent" and limiting their height to four feet);
94. City of Milwaukee, Wisconsin Legislative Research Center, File # 040668, available at http://milwaukee.legistar.com/LegislationDetail.aspx?ID= 159539&GUID= E60F4528-0622-415C-9EBE-2BCFD8AD302D&Search= 040668&Options=TD|Text| (last modified Jan. 12, 2005) (showing above ordinance effective as of April 15, 2005);
95. TOWN OF CHAPEL HILL, NEIGHBORHOOD CONSERVATION, DESIGN GUIDELINES 7, available at http://townhall.townofchapelhill.org/agendas/2006/12/04/5a/5a-2- kings-mill-morgan-ck-greenwood-ncd-guide.pdf (placing limitations on accessory apartments);
96. see also infra text accompanying note 85 (describing limitations on accessory structures in a private covenanted community).
97. See, e.g.. CITY OF MILWAUKEE, DEPARTMENT OF CITY DEVELOPMENT, supra note 55 (stipulating that new construction and exterior changes "should make provisions for all carts and dumpsters to be screened from street view").
98. HOPKINS, MINN. CODE §556.10, available at http://mail.hopkinsmn.com/ weblink8/1/doc/46956/Page1.aspx (requiring "[a] minimum of 30% of the ground level façade and sides of buildings adjacent to public streets" to "consist of transparent materials" and providing that "it is encouraged and may be required that windows and doors be incorporated into building designs to provide large open views into the commercial space").
99. See, e.g., CITY OF SEATTLE, DESIGN REVIEW: GREENWOOD/PHINNEY NEIGHBORHOOD DESIGN GUIDELINES 8 (2006), available at http://www.seattle.gov/dpd/static/ greenwood2006-LatestReleased-DPDP-015964.pdf (describing criteria considered by a design review board, which include roof pitch and facade features).
100. See, e.g., Uriel Reichman, Residential Private Governments: An Introductory Survey, 43 U. CHI. L. REV. 253, 269 (1976) (describing the "architectural control committee");
101. see also CITY OF MILWAUKEE, DEP'T OF CITY DEV., supra note 55 (noting that permits for new construction or exterior alternations will not be issued unless the construction or alterations meet the design standards of the conservation overlay);
102. The First Amendment to the Deed of Amendment to the Deeds of Dedication of Reston §VI. 1(c) (Apr. 2006), available at https://www.reston.org/ Portals/3/Inside%20RA/Reston%20Association%20Governance/Governing%20Documents/ Deed.pdf [hereinafter Reston, First Amendment] (prohibiting external modifications and repairs to structures within a private covenanted community without prior approval of a design review board).
103. See, e.g., CITY OF MILWAUKEE, DEP'T OF CITY DEV., supra note 55 (requiring newly constructed garages to be "located in a rear yard");
104. WESTRIDGE ROAD NEIGHBORHOOD CONSERVATION OVERLAY 15, available at http://www.greensboro-nc.gov/NR/rdonlyres/92D416B9-1400-4452-B448-1C50EA1187AD/ 0/westridge-nco-plan-7-3-08.pdf (limiting the placement of garages on lots).
105. See NELSON, supra note 16, at 54 (explaining that in private communities, "collective controls may extend into various realms of social behavior").
106. For praise, see, e.g., Ellickson, supra note 20, at 1527 (arguing that by protecting the integrity of covenants, courts "can provide genuine choice among a range of stable living arrangements");
107. Bethany Lyttle, W/Full Mud Bath, N.Y. TIMES, Feb. 6, 2009, at D4 (extolling the "lack of pretension ... and ... [the] emphasis on physical well-being" in a private community in Calistoga, California). For criticism,
108. see, e.g., Franzese, supra note 44, at 561 (arguing that covenanted communities' "formalized mandates and broad enforcement mechanisms ... create cultures of distrust").
109. The communities that I refer to as "private covenanted communities" are typically described as common interest communities and are defined by "common ownership of residential property, mandatory membership of all owners in an association that governs the use of the common property, and
110. governing documents that provide a 'constitution' by which the association and its members are governed." See Stephen E. Barton & Carol J. Silverman, History and Structure of the Common Interest Community, in COMMON INTEREST COMMUNITIES: PRIVATE GOVERNMENT AND THE PUBLIC INTEREST 3, 3 (Stephen E. Barton & Carol J. Silverman eds., 1994). Cooperatives, condominiums, and covenanted subdivisions aU faU within this definition. Id
111. See, e.g., Fennell, supra note 5, at 878 (arguing that the "detached single-family dwelling ... for many U.S. homeowners ... has come to epitomize the idea of private property").
112. See Reichman, supra note 59, at 257 (observing that "the homeowners' association is by no means a new invention").
113. See EVAN MCKENZIE, PRTVATOPIA: HOMEOWNER ASSOCIATIONS AND THE RISE OF RESIDENTIAL PRIVATE GOVERNMENT 35 (1994).
114. See EDWARD J. BLAKELY & MARY GAIL SNYDER, FORTRESS AMERICA: GATED COMMUNITIES IN THE UNITED STATES 19 (1997) (describing the development of the "master-planned suburb of Radburn, New Jersey, in 1928" and the use of restrictive covenants in that suburb);
115. Barton & Silverman, supra note 63, at 7 (discussing Gramercy Park in New York and Louisburg Square in Boston, built in the 1830s and 1840s).
116. This number may be an underestimate, as there were many early covenanted communities in the United States that did not have homeowners' associations.
117. See MCKENZIE, supra note 66, at 35 (discussing the diverse uses of restrictive covenants in the nineteenth century and explaining that most "did not involve homeowners' associations").
118. Id.at 82.
119. Community Associations Institute, Industry Data, http://www.caionline. org/info/research/Pages/default.aspx (last visited Jan. 16, 2009). The institute refers to these communities as "associationgoverned communities." Id.
120. NELSON, supra note 16, at xiii. In 2008, the Community Associations Institute estimated that 59.5 million Americans lived in "association- governed communities." This figure includes condominiums and cooperatives. Community Associations Institute, supra note 70. In 2008, the U.S. Census Bureau estimated that the total U.S. population was 304,059,724. U.S. Census Bureau, Population Finder, United States, http://factfinder.census.gov/servlet/ SAFFPopulation (last visited Feb. 26, 2009).
121. See BLAKELY & SNYDER, supra note 67, at 6 (observing that the "majority of the newer [gated community] settlements of the 1970s to 1990s are middle to upper-middle class" and how "there are a growing number of working-class gated communities").
122. Todd Swanstrom et al., Pulling Apart: Economic Segregation in Suburbs and Central Cities, in 3 REDEFINING URBAN & SUBURBAN AMERICA: EVIDENCE FROM CENSUS 2000, supra note 8, at 144 (discussing how "[b]y 2002 ... there were almost as many poor people living in suburbs (13.3 million) as in central cities (13.8 million)," whereas previously "most poor people lived in central cities").
123. But see William H. Frey, Melting Pot Suburbs, in 1 REDEFINING URBAN & SUBURBAN AMERICA: EVIDENCE FROM CENSUS 2000, at 167 (Bruce Katz & Robert E. Lang eds., 2003) (discussing varying "city-suburb disparities in housing availability [and] costs").
124. See Siegel, supra note 43, at 867 ("Most new residential development in the fastest growing southern and western states is subject to governance by a community association.").
125. See SETHA LOW, BEHIND THE GATES: LIFE, SECURTTY, AND THE PURSUIT OF HAPPINESS IN FORTRESS AMERICA 44, 50 (2003) (discussing "The Lakes," a "gated community in northwestern San Antonio," where overaU house prices range from $150,000 to $300,000 and how beyond "the loop," in San Antonio, "homes in newly constructed gated communities average $200,000");
126. Franzese & Siegel, supra note 43, at 1125 (describing how private covenanted communities "can be the most affordable housing available in certain housing markets").
127. See URBAN LAND INSTITUTE, THE HOMES ASSOCIATION HANDBOOK 198 (1964) (explaining that the developer "prepare[s] and record[s]" the declaration);
128. see also Franzese & Siegel, supra note 43, at 1127 (describing how covenanted communities "are created by developers who plan, design, and construct them").
129. See URBAN LAND INSTITUTE, supra note 76, at 198-99.
130. See Wayne S. Hyatt, Declaration of Covenants, Conditions and Restrictions: Mountain Vista Resort, in ALI-ABA COURSE OF STUDY 147, 167 (2003) (providing, in a course of study on "formation, documentation, and operation" of "resort real estate and clubs," a detailed example declaration).
131. See Franzese, supra note 44, at 556-57 (describing the association's duties).
132. See Hyatt, supra note 78, at 177-78.
133. The architectural review guidelines dictate, along with the covenants, how individual property owners may develop or modify their land and the structures on their land. See id. at 175-77;
134. see also Garden Lakes Community Ass'n, Inc. v. Madigan, 62 P.3d 983, 984 (Ariz. Ct. App. 2003) (describing covenants, which provided that "[a]ll solar energy devices Visible from Neighboring Property or pubüc view must be approved by the Architectural Review Committee prior to installation").
135. See Hyatt, supra note 78, at 235-53.
136. Hilton Lake Homeowners Association, http://www.hiltonlake.org/ (last modified May 26, 2008).
137. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF HILTON LAKE HOMEOWNERS ASSOCIATION art. VI (1979), available at http://www.hiltonlake.org/ HLHOA-CCRs.pdf.
138. MASTER DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR HOWARD RANCH, EXHIBIT B: ARCHITECTURAL GUIDELINES (2005), available at http://www.howardranch.com/FinalDraftMasterDec(wExhs)-l. pdf.
139. Reston Association, Who We Are, http://www.reston.org/InsideRA/ Governance/WhoWeAre/Default.aspx?qenc=HzT9ACzZbNs%3d&fqenc= DP5IX%2fL7n1MKoJO9wkrIsg%3d%3d (last visited Oct. 2, 2009).
140. Reston, First Amendment, supra note 59, at §VI. 1(c)(2).
141. See FRED FOLDVARY, PUBLIC GOODS AND PRIVATE COMMUNITIES: THE MARKET PROVISION OF SOCIAL SERVICES 176 (1994) (explaining that in Reston, two of the main functions of the association are "the administration of the covenants" and "the preservation of the architecture through its appointed Design Review Board");
142. Susan F. French, Making Common Interest Communities Work: The Next Step, 37 URB. LAW. 359, 367 (2005) (describing how "[i]n every state, the basic law governing an association provides for enforcement of the association's governing documents").
143. See, e.g., Reston, First Amendment, supra note 59, at §III.6 (explaining that the Design Review Board is appointed by the association's Board of Directors and that its members may be removed by the Board of Directors).
144. See, e.g., Seabreak Homeowners Ass'n v. Gresser, 517 A.2d 263, 267 (Del. Ch. 1986) (discussing a covenant that required approval "in writing by the Association, through its duly designated Architectural Review Committee" prior to the construction of walls, fences, garages, or other improvements);
145. Ritchie v. Carriage Oaks Homeowners Association, 592 So. 2d 361, 362 (Fla. Dist. Ct. App. 1992) (discussing a covenant that prohibited the construction of walls or fences without written approval of the homeowners' association or "its architectural review committee").
146. See Franzese & Siegel, supra note 43, at 1132-33 (describing the enforcement activities of several homeowners' associations as involving "miscommunication, acrimony, and an abuse of power").
147. See MARC A. WEISS, THE RISE OF THE COMMUNITY BUILDERS: THE AMERICAN REAL ESTATE INDUSTRY AND URBAN LAND PLANNING 3-4 (1987) (arguing that private covenants formed "the physical and political model for zoning and subdivision regulations");
148. see also NELSON, supra note 16, at 33 (describing Weiss's and others' observation of zoning's roots in covenants).
149. See, e.g., CODE OF MIAMI-DADE COUNTY, FLA. arts. XIII-XXXIII(Q) (2009), available at http://www.municode.com/resources/gateway.asp?pid=10620&sid=9 (follow "Chapter 33 ZONING*" hyperlink) (naming Miami-Dade County's forty-nine zoning districts);
150. BOSTON ZONING CODE AND ENABLING ACT, ch. 665, arts. 27-36, 38-67, 70-73 (1956) (amended through 2001), available at http://www. bostonredevelopmentauthority.org/zoning/downloadZone.asp#volume2 (listing Boston's zoning districts, of which approximately forty are labeled as "districts" or "neighborhood districts");
151. CITY OF NEW YORK ZONING REG. ch. 11, §12 (2009), available at http://www.nyc.gov/html/dcp/pdf/zone/art01c01.pdf (listing more than 184 zoning districts).
152. The aesthetics regulated by traditional zoning are typically broader-brush than those that arise in the new zoning overlays. See, e.g., Kenneth Pearlman et al., Beyond the Eye of the Beholder Once Again: A New Review of Aesthetic Regulation, 38 URB. LAW. 1119, 1122-48 (2006) (discussing state courts' upholding zoning regulations based purely on aesthetics, such as those involving billboards and mobile homes).
153. See, e.g., Michael Lewyn, Sprawl, Growth Boundaries, and the Rehnquist Court, 2002 UTAH L. REV. 1, 50 (2002) (describing the typical zoning ordinance).
154. See, e.g., SPRINGFIELD, OHIO, ZONING CODE §1113.02 (2009), available at http://www.ci. springfield.oh.us/govt/ord/1113.pdf.
155. See supra note 54 and accompanying text.
156. ERAN BEN-JOSEPH, THE CODE OF THE CITY: STANDARDS AND THE HIDDEN LANGUAGE OF PLACE MAKING 5-7 (2005)
157. (quoting BINODE DUTT, TOWN PLANNING IN ANCIENT INDIA 58, 248-57 (1925)).
158. Id.at 6.
159. Id. at 7.
160. Id.
161. See Ex parte Quong Wo, 161 Cal. 220, 222 (1911) (describing Ordinance Nos. 19,500 and 19,563 categorizing these districts).
162. NEW YORK, N.Y., CODE OF ORDINANCES (1916).
163. See Symposium, Developments in the Law - Zoning, 91 HARV. L. REV. 1427, 1433-34 (1978) (discussing how "zoning as it is currently conceived became prominent when large urban centers began to develop" and how the number of city zoning codes increased from five in 1915 to "nearly five hundred"
164. ADVISORY COMM. ON ZONING, U.S. DEP'T OF COMMERCE, A STANDARD STATE ZONING ENABLING ACT (1926);
165. see also Jerry Frug, The Geography of Community, 48 STAN. L. REV. 1047, 1081 (1996) (describing how the Act was first pubUshed and widely circulated in 1923).
166. Francesca Ortiz, Zoning the Voyeur Dorm: Regulating the Home-Based Voyeur Web Sites Through Land Use Laws, 34 U.C. DAVIS L. REV. 929, 939 n.44 (2001) ("All states have adopted enabling acts modeled after the Standard State Zoning Enabling Act, delegating the state's police power to local governmental subdivisions.").
167. See Jonathan Moore Peterson, Taming The SprawImart: Using an Antitrust Arsenal to Further Historic Preservation Goals, 27 URB. LAW. 333, 374 (1995) (discussing typical enabling legislation).
168. A HANDBOOK ON HISTORIC PRESERVATION LAW 38 (Christopher J. Duerksen ed., 1983) (discussing how many cities and towns already had adopted preservation programs by enacting ordinances prohibiting landmark demolition).
169. See RICHARD C COLLINS ET AL., AMERICA'S DOWNTOWNS: GROWTH, POLITICS & PRESERVATION 16 (1991) ("Early historic preservation efforts in this country focused initially on the preservation of individual buildings for their historical value and architectural merit.").
170. 438 U.S. 104 (1978).
171. Id. at 104.
172. See Id.
173. South of Second Assoes, v. Georgetown, 580 P.2d 807, 808 (Colo. 1978).
174. Id. at 811.
175. See SHERRY HUTT ET AL., HERITAGE RESOURCES LAW: PROTECTING THE ARCHEOLOGICAL AND CULTURAL ENVKONMENT 25 (1999) (discussing how "an estimated 2,000 historic preservation ordinances have been enacted across the country" and how these laws "generally empower historic preservation commissions to review and deny requests to alter, demolish, or remove property designated as a historic landmark or included in historic districts").
176. See, e.g., id. at 26 (describing how under local preservation laws, "most jurisdictions regulate both proposed alterations and demolitions of historic structures and new construction within a historic district").
177. See, e.g., Adam Lovelady, Broadened Notions of Historic Preservation and the Role of Neighborhood Conservation Districts, 40 URB. LAW. 147, 148-54 (2008) (noting that there were 500 local preservation commissions to protect historic districts in 1980 and more than 2,000 by 2000).
178. Individual aesthetic restrictions were validated indirectly by Berman v. Parker in its 1954 discussion of the broad police power. See 348 U.S. 26, 33 (1954) ("It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.").
179. See, e.g., Lovelady, supra note 117, at 154-55.
180. See CITY OF MILWAUKEE, DEP'T OF CITY DEV., supra note 55.
181. In 2000, the ten largest cities by population were New York, Los Angeles, Chicago, Washington, DC, San Francisco, Philadelphia, Boston, Detroit, Dallas, and Houston. U.S. Census Bureau, CENSUS 2000 PHC-T-3, RANKING TABLES FOR METROPOLITAN AREAS: 1990 AND 2000, available at http://www.census.gov/ population/www/cen2000/briefs/phc-t3/tables/tab03.pdf. At least half of these cities have, or are in the process of developing, sublocal zoning. Although some of this zoning is the familiar historic preservation, other zoning represents an expansion of detailed property restrictions to property characteristics unrelated to historic features.
182. See, e.g., BABCOCK & LARSEN, supra note 21, at 155 (discussing New York's "Special Zoning Districts");
183. CITY OF LOS ANGELES DEPARTMENT OF CITY PLANNING, OFFICE OF HISTORIC RESOURCES, HISTORIC PRESERVATION OVERLAY ZONES, available at http://preservation.lacity.org/hpoz (describing Los Angeles' "24 designated HPOZs [Historic Protection Overlay Zones], which "range in size from neighborhoods of approximately 50 parcels to more than 3,000 properties");
184. D.C MUN. REGS. tit. 11, §1300.3 (2000), available at http://dcoz.dc.gov/info/reg/chapter13-pdf.shtm (describing the Neighborhood Commercial Overlay District, which is intended to "[e]ncourage ... a continuous pattern [of varied establishments] at ground level" and to "encourage a scale of development, a mixture of uses, and other attributes");
185. Michael Hauptman, Queen Village is the First Neighborhood Conservation District in Philly, http://www.planphilly.com/node/5470 (last visited Feb. 16, 2009) (describing Queen Village, "the first Neighborhood Conservation District in Philadelphia");
186. BOSTON ZONING CODE AND ENABLING ACT ch. 665, arts. 50-67, 70-73 (1956) (amended through 2001), available at http://www.bostonredevelopmentauthority. org/zoning/downloadZone.asp#volume3 (listing Boston's many neighborhood districts);
187. DALLAS CITY CODE §51A- 4.507(a)(2), (4) (2005), available at www.dallascityhall.com/pdf/DevSvcs/Ordinance-26161.pdf (describing Dallas' several neighborhood stabilization overlay districts, first enabled by the Dallas City Counsel in 2005, which "[are] intended to preserve single family neighborhoods");
188. see also SEATTLE MUNICIPAL CODE §23.59.010 (1996), available at http://clerk.ci.seattle.wa.us/public/toc/t23.htm (follow "23.59" hyperlink; then follow "23.59.010" hyperlink) (describing overlay districts, which "are established to conserve and enhance ... [the city's] unique natural... setting and its environmental... features... [and] to preserve areas of historical note or architectural merit");
189. CITY OF PHILA. BILL NO. 08-080080-A, available at http://www.qvna.org/ committees/NCD-ordinance.pdf (showing that Queen Vdlage Neighborhood Conservation District was formed July 15, 2008, when the mayor signed the ordinance).
190. CITY OF DALLAS, OVERLAY PROCESS CHECKLIST, available at http://www.dallascityhall.com/pdf/DevSvcs/NSO-Checklist.pdf (requiring a "neighborhood meeting" as part of establishing a Neighborhood Stabilization Overlay);
191. NEIGHBORHOOD PROTECTION OVERLAY (NPO): DESIGNATION AND REGULATION PROCESSES 1 (2007), available at http://www.durhamnc.gov/forms/planning-npo- process.pdf (for overlay districts in Durham, North Carolina, neighborhood groups seeking a Neighborhood Protection overlay must submit "[a] plan for neighborhood engagement");
192. Town of Chapel Hill: Neighborhood Conservation Districts, http://www.ci.chapel-hill.nc.us/index.aspx?page=570#initiation(last visited Oct. 7, 2009) (requiring a 'Town sponsored Public Information Meeting" to commence the overlay process).
193. See, e.g., LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, supra note 22 (describing how the neighborhood overlay initiation process requires significant neighborhood support, usually in the form of a petition with a minimum of 51 % of owners' signatures).
194. See, e.g., CITY OF DALLAS, supra note 122 (requiring Planning Commission and then City Council approval for a Neighborhood Stabilization Overlay);
195. Town of Chapel Hill, supra note 122 (requiring Planning Board recommendation and then Town Council endorsement in order for Neighborhood Conservation District to be approved).
196. See, e.g., AUSTIN CITY CODE §25-2-242(5) (2009), available at http://www.amlegal.com/nxt/gateway.dll/Texas/austin/ thecodeofthecityofaustintexas?f=templates$fn=default.htm$3. 0$vid=amleg: austin-tx$anc= (follow 'TITLE 25. LAND DEVELOPMENT' hyperlink; then follow "25.2" hyperlink; then follow "25-2-242" hyperlink) (requiring "petition of the owners of at least 60 percent of the land in the proposed district" for the initiation of historic district zoning (amended to 51% by Ordinance No. 20090806-068, Part 3 (Oct 7, 2009), http://www.cityofaustin.org/edims/document.cfm?id=130027));
197. CITY OF GREENSBORO PLANNING DEPARTMENT: NEIGHBORHOOD CONSERVATION OVERLAYS 2, available at http://www.greensboro-nc.gov/NR/rdonlyres/B1A22D97- 4EA4-4C60-8D4D-F47006E34D5A/0/packet-7-5-07-wo-enb-ord.pdf (requiring 51% of "land and parcel owners" within a proposed neighborhood conservation district "to approve drafted development standards and to proceed to public hearing").
198. See, e.g., LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, supra note 22 ("With the initiation petition approved, the city's Planning staff, with some neighborhood assistance, would then prepare and process the actual application through the required public hearings.").
199. DURHAM CrrY-COUNTY UNIFIED DEVELOPMENT ORD. §3.2.5(A), (B)(1), (B)(2)(a), available at http://www.ci.durham.nc.us/departments/planning/udo/pdf/ udo-03.pdf.
200. Id. at § 3.17.3 (A)(3).
201. Id. at § 3.17.3 (D)(1).
202. Id.at § 3.17.3(D)(2)-(3).
203. Id. at § 3.17.3 (E)(1).
204. Id. at § 3.17.3 (E)(2).
205. Id. at § 3.17.3 (F)(1).
206. Id. at § 3.17.3 (F)(2).
207. Id. at § 3.17.3 (F)(4).
208. BOSTON ZONING CODE §50-41(1)(a), available at http://www. bostonredevelopmentauthority.org/pdf/zoningcode/article50.pdf.
209. CITY OF MILWAUKEE, DEPARTMENT OF CITY DEVELOPMENT, supra note 55.
210. CITY OF PHILADELPHIA, BILL NO.080080 §14-908(4)(a)(9)(g), http://webapps.phila.gov/council/attachments/5407.pdf.
211. PINE KNOLLS NEIGHBORHOOD CONSERVATION DISTRICT PLAN 3 (2006), available at http://www.ci.chapel-hill.nc.us/Modules/ShowDocument.aspx?documentid=820.
212. DALLAS, TEX. ORDINANCE NO.27120 §2(4) (2008), available at http://www.dallascityhall.com/development-services/pdf/nso-cedar-oaks.pdf.
213. This Article does not purport to draw a substantive line that defines whether rules look more like "traditional zoning" or covenants; nor does it attempt to identify which rules may be the most troublesome substantively in terms of the negative externalities that they may impose or by some other measure. That is the subject of a future paper. Rather, this Article attempts to generally identify rules that resemble covenants in many respects.
214. See, e.g., Lovelady, supra note 117, at 157 (observing that "[u]sually the local historic commission oversees both the historic and the conservation districts").
215. CAMBRIDGE, MASS., MUN. CODE art. III, tit. 2, §2.78.180(C) (2008), available at http://www.municode.com/Library/Library.aspx (follow "Mass." hyperlink);
216. then follow "Cambridge" hyperlink; then follow "Cambridge Code of Ordinances" hyperhnk; then follow 'Title 2 ADMINISTRATION AND PERSONNEL" hyperlink; then follow "Chapter 2.78 HISTORICAL BUILDINGS AND LANDMARKS" hyperlink;
217. then follow "Article III. Establishment of Neighborhood Conservation Districts and Protected Landmarks" hyperhnk; then follow "2.78.180 Designation procedures" hyperlink).
218. Id. §2.78.160, available at http://www.municode.com/Library/Library. aspx (follow "Mass." hyperlink; then follow "Cambridge" hyperhnk;
219. then follow "Cambridge Code of Ordinances" hyperlink; then follow 'Title 2 ADMINISTRATION AND PERSONNEL" hyperlink; then follow "Chapter 2.78 HISTORICAL BUILDINGS AND LANDMARKS" hyperlink;
220. then follow "Article III. Establishment of Neighborhood Conservation Districts and Protected Landmarks" hyperlink; then follow "2.78.160 Neighborhood conservation district commission - Established - Membership requirements" hyperlink).
221. NEIGHBORHOOD CONSERVATION DISTRICTS IN CAMBRIDGE (2002), available at http://www. cambridgema.gov/historic/ncd-brochure.pdf;
222. see also CAMBRIDGE, MASS., MUN. CODE art. III, tit. 2, § 2.78.170 (2008), available at http://www.municode.com/Library/Library.aspx (follow "Mass." hyperlink);
223. then follow "Cambridge" hyperlink; then follow "Cambridge Code of Ordinances" hyperlink; then follow 'Title 2 ADMINISTRATION AND PERSONNEL" hyperlink; then follow "Chapter 2.78 HISTORICAL BUILDINGS AND LANDMARKS" hyperlink;
224. then follow "Article III. Establishment of Neighborhood Conservation Districts and Protected Landmarks" hyperhnk; then follow "2.78.170 Powers and duties" hyperlink).
225. See id. §2.78.210, available at http://www.municode.com/Library/ Library.aspx (follow "Mass." hyperlink);
226. then follow "Cambridge" hyperlink; then follow "Cambridge Code of Ordinances" hyperlink;
227. then follow 'Title 2 ADMINISTRATION AND PERSONNEL" hyperlink;
228. then follow "Chapter 2.78 HISTORICAL BUILDINGS AND LANDMARKS" hyperlink; then follow "Article III. Establishment of Neighborhood Conservation Districts and Protected Landmarks" hyperlink;
229. then follow "2.78.210 Certificates of appropriateness, nonapplicability or hardship" hyperlink).
230. See, e.g., Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 121-122 (1928) (noting that where a nuisance is not involved, it is a violation of due process for zoning powers to be delegated to property owners within 400 feet of a development in dispute).
231. See, e.g., infra note 174 and accompanying text; Anne Marie Pippen, Note, Community Involvement in Brownfield Redevelopment Makes Cents: A Study of Brownfield Redevelopment Initiatives in the United States and Central and Eastern Europe, 37 GA. J. INT'L & COMP. L. 589, 590 (2009) (describing "Atlantic Station, a 138-acre mixed-use development site including retail, residential, commercial, and public space" built on a site "formerly contaminated with industrial by-products of the Atlantic Steel Mill").
232. See, e.g., Matthew J. Parlow, Greenwashed?: Developers, Environmental Consciousness, and the Case of Playa Vista, 35 B.C. ENVTL. AFP. L. REV. 513, 528 (2008) (describing the Playa Vista urban redevelopment, "where people can work, live, and recreate").
233. See, e.g., About the Lowry Redevelopment Authority, http://www.lowry.org/ info/about-lra.htm (last visited Oct. 7, 2009) (describing how the Lowry Redevelopment Authority, a "non-profit, quasi-public organization established by the Cities of Denver and Aurora to redevelop the former Lowry Air Force Base... serves as master planner and developer of the 1,866-acre site with responsibility for zoning, infrastructure improvements and real estate sales").
234. WALTER S. CREESE, THE SEARCH FOR ENVIRONMENT: THE GARDEN CITY BEFORE AND AFTER 13 (1966).
235. Id.
236. Id. at 22-23.
237. Id. at 23.
238. Id. at 27.
239. See Keith Aoki, Race, Space, and Place: The Relation Between Architectural Modernism, Post-Modernism, Urban Planning, and Gentrification, 20 FORDHAM URB. L.J. 699, 709 (1993);
240. see also STANLEY BUDER, PULLMAN: AN EXPERIMENT IN INDUSTRIAL ORDER AND COMMUNITY PLANNING, 1880-1930, at 50-51 (describing how Pullman hired Solon Spencer Berman "to design factory and homes" and Nathan F. Bartrett to "lay out the buildings and to landscape them").
241. Pullman State Historic Site, Planning the Town of Pullman, http://www.pullman-museum.org/theTown/planning.html (last visited Feb. 16, 2010);
242. see also BUDER, supra note 156, at 76 (showing the grid layout).
243. Pullman State Historic Site, The Town of Pullman, http://www.pullman- museum.org/theTown (last visited Feb. 16, 2010).
244. See, e.g., Parlow, supra note 149, at 527 n.84, 528 (describing mixed use development and the promise of 15% affordable housing at the Playa Vista redevelopment).
245. See Mandelker, supra note 28, at 420.
246. See id. at 421-422
247. See Lenard L. Wolffe, New Zoning Landmarks in Planned Unit Developments, 62 URB. LAND INST. TECHNICAL BULL. 5 (1968) (discussing "recent break-throughs with relation to the soundness of the concept [of the Planned Unit Development] and its implementation in terms of public officialdom and legal opinion");
248. id. at 7, 8, 10 (describing the New Jersey Municipal Planned Unit Development Act of 1967 and a Planned Unit Development Ordinance in Pennsylvania that was passed under that state's Standard Zoning Enabling Act).
249. See Mandelker, supra note 28, at 419 (describing these communities as "a major component of suburban and infill development in many metropolitan areas").
250. See id. at 448 n.128 (describing Mississippi's statute for master-planned communities, which involve '"a development... consisting of residential, commercial, educational, health care, open space and recreational components that is developed pursuant to a long range, multi-phase master plan providing comprehensive land use planning'" (quoting Miss. CODE. ANN. §19-5-10 (2003)));
251. John R. Nolon & Jessica A. Bacher, Zoning and Land Use Planning, 36 REAL EST. L.J. 211, 216-18 (2007) (describing the urban redevelopment of a site in Yonkers, New York, wherein the city adopted design standards in a master plan).
252. This is done in a manner that avoids the unconstitutional practice of "contract zoning";
253. the developer's promises are not "directly" exchanged for a zoning guarantee. See Steven P. Frank, Yes in My Backyard: Developers, Government and Communities Working Together Through Development Agreements and Community Benefit Agreements, 42 IND. L. REV. 227, 236 (2009) (discussing unconstitutional contract zoning).
254. See, e.g., Hawaii Community Development Authority, GGP Ward Neighborhood Master Plan Application, http://hcdaweb.org/october-15-2008-public-hearing-set- for-ggp-ward-neighborhood-masterplan-2 (last visited Feb. 20, 2009) (describing the master plan for an urban development in Hawaii).
255. See, e.g., id. (discussing the public hearing on the GGP Ward Neighborhood Master Plan application, where more than 200 residents spoke).
256. See, e.g., MIDWEST REGIONAL REDEVELOPMENT AUTHORITY, BRUNSWICK NAVAL Am STATION REUSE MASTER PLAN 188 (Dec. 2007), available at http://www.mrra.us/ images/Section-6-BNAS-Reuse-Master-Plan.pdf (describing the residential district of "single family attached or detached" housing as well as multifamily apartments and establishing proposed densities of dwelling units per acre).
257. See, e.g., Lowry Redevelopment Authority, Lowry Builder Named Green Builder of the Year, RE: DEVELOPMENTS, Feb. 2009, at 3, http://www.lowry.org/ news/LRA9002-FebNwslttr09(online).pdf (describing how Lowry redevelopment near Denver provides "energy-efficient homes"); Mueller, Sustainability, http://www.muelleraustin.com/green/sustainability.php (last visited March 8, 2009) (describing an urban redevelopment in Austin, Texas, which has solar panels and recycled building materials).
258. The government of Yonkers, New York, for example, used a "Master Plan Zone" to define "the types of development the city wanted on available vacant land in the area" to revitalize its industrial waterfront area. Nolon & Bacher, supra note 164, at 217.
259. See SAN ANTONIO, TEX. supra note 31.
260. See, e.g., LOWRY COMMUNITY MASTER ASSOCIATION, LOWRY PROPERTY OWNER RULES AND REGULATIONS, available at http://api.ning.com/files/V3ri3ykXuD47tQWk3xAs * bhDNQlxuui-QN6xtHRsdk7cOt5mfSDvbc*UP7s7197Kd3gOUBR* 1j9d6bWqw2QzvfyHuK0Sn34t/designguidelines9.2008.pdf (setting forth the rules administered by the Lowry Design Review Committee).
261. Id. at 2, §1.2.
262. Lowry, Information Center, http://www.lowry.org/info/about-lra.htm (last visited Feb. 23, 2009).
263. LOWRY, FACT SHEET (2006), http://www.lowry.org/news/Timeune.pdf.
264. Id.
265. LOWRY COMMUNITY MASTER ASSOCIATION, supra note 172.
266. Id. at 8, §2.8.2 (describing fence requirements), 1, §1.1 (describing the Lowry Design Review Committee).
267. Id. at 6, §2.6.
268. Id. at 10, §2.11.2.
269. Parlow, supra note 149, at 523.
270. Id. at 525-527
271. Id. at 528-530
272. City of Las Vegas, Symphony Park, http://www.lasvegasnevada.gov/ Government/7598.htm(last visited Mar. 6, 2009).
273. See, e.g., infra notes 248-249 and accompanying text.
274. See Laura Oppenheimer & James Mayer, Poll: Balance Rights, Land Use, THE OREGONIAN, Apr. 21, 2005, at C1 (explaining how, in a poll of 500 Oregon residents, "respondents valued protecting property rights more than farmland, the environment or wildlife habitat," and "60 percent chose individual rights over responsibility to their community").
275. See FISCHEL, supra note 36, at 111 (arguing that declining school funding should correlate with lower property values).
276. See WILLIAM A. FISCHEL, THE ECONOMICS OF ZONING LAWS: A PROPERTY RIGHTS APPROACH TO AMERICAN LAND USE CONTROLS 257, 260 (1985) (arguing that the large lots in suburbs offer a lower price per acre as compensation for the longer commute to one's job).
277. See supra note 8 and accompanying text.
278. See NELSON, supra note 16, at 7 (arguing that private neighborhood associations are on the rise because Americans "may be seeking greater control over their neighbors' actions").
279. For discussions of the efficiencies of group covenants, see Ellickson, supra note 19, at 107;
280. Epstein, supra note 9, at 915-16; Fennell, supra note 5, at 846-847
281. See Tiebout, supra note 10, at 418, 420 (arguing that consumers express preferences for public goods through their movements and that although governments do not respond directly to preference, they ultimately offer various levels and types of goods as suboptimal levels and types are rejected).
282. Id. at 416-417
283. Id. at 418, 420.
284. See FISCHEL, supra note 36, at 39 (describing the Tiebout hypothesis as involving residents who "vote with their feet").
285. See Frantz, supra note 42, at 73 (explaining that covenanted communities are "each distinguished by a certain architectural style and by a package of... amenities designed to appeal to a certain niche and to compare favourably with other communities in the vicinity").
286. See infra notes 203-204 and accompanying text.
287. Gregory Alexander, Conditions of "Voice": Passivity, Disappointment and Democracy in Homeowner Associations, in COMMON INTEREST COMMUNITIES, supra note 63, at 145, 157.
288. CONSTANCE PERIN, BELONGING IN AMERICA: READING BETWEEN THE LINES 64 (1988) (describing how "[i]n homeowners' calculus, the physical appearance of their block matters the most").
289. Id.
290. Id.
291. See Gillette, supra note 37, at 1405 (arguing that "those drawn to [homeowners'] associations may be those least confident that they will succeed in political disputes that affect the character of their neighborhood" and prefer the "permanence" of covenants).
292. Low, supra note 75, at 165.
293. Alexander, supra note 198, at 157.
294. See Mark A. Malsapina, Note, Demanding the Best: How to Restructure the Section 8 Household-Based Rental Assistance Program, 14 YALE L. & POL'Y REV. 287, 290 (1996) (describing "the lack of affordable housing and the limitations on residential choice" as "two fundamental residential problems").
295. See BLAKELY & SNYDER, supra note 67, at 18 (arguing that "[t]he gates provide sheltered common space not penetrable by outsiders" and that the "drive for security is ... reflected in the housing market").
296. See, e.g., Telephone Interview with anonymous resident (Dec. 19, 2008) (discussing how approximately half of his community is populated by retired "snowbirds" who wished to live amongst other residents their age).
297. See BLAKELY & SNYDER, supra note 67, at 39 (describing "lifestyle" retirement communities in the Sunbelt).
298. See, e.g., Gillette, supra note 37, at 1398 (explaining how "some neighborhoods invite sorting into diverse groups by offering a mix of housing alternatives within a relatively small geographical area").
299. See Eugenie L. Birch, Who Lives Downtown?, in 3 REDEFINING URBAN & SUBURBAN AMERICA: EVIDENCE FROM CENSUS 2000, supra note 8, at 32, 38 (discussing cities' downtown mixed-use residential projects as "something of a renaissance" and observing that the population in more than 70% of thirty-two city downtowns sampled grew in the 1990s).
300. See, e.g., Lyttle, supra note 62 (describing a private covenanted community in California that offers "miles of trails," an organic garden, a spa, and "lots of organized outdoor activities that minister to body and soul").
301. See, e.g., NELSON, supra note 16, at 67 (describing a Virginia neighborhood association, "EcoVillage");
302. Joe Cantlupe, Going Green, COMMON GROUND (Jan.-Feb. 2008) (through paid access and on file with author) (discussing a private covenanted conservation community in Illinois).
303. See, e.g., Frantz, supra note 42, at 66 (describing "Leisure World Laguna Hills in Orange County," a "retirement community with over 22,000 residents");
304. id. at 67-68 (describing communities' with polo courts, bridle paths, and golf courses).
305. See, e.g., Robert Schwarting, Guided By Voices, COMMON GROUND (July-Aug. 2002) (through paid access and on file with author) (describing how the Radisson Community Association interviewed "parents and teenagers" within the community to determine what types of foods they wanted to be available near the swimming pool, and settled on "nachos, pizzas, and hot dogs").
306. See, e.g., Gary A. Poliakoff, J.D., & JoAnn Nesta Burnett, Esq., Prescription Pets, COMMON GROUND (Jan.-Feb. 2008) (through paid access and on file with author) (describing the "many pet-restricted community associations" and how homeowners often seek waivers from pet rules).
307. But see Chateau Vill. N. Condo. v. Jordan, 643 P.2d 791, 792 (Colo. App. 1982) (prohibiting a condominium board of directors from enforcing a discretionary no-pet policy).
308. See Briffault, supra note 12, at 517 (explaining that "special district zoning" tailors "land use regulation to conditions specific to particular neighborhoods").
309. See Ellickson, supra note 20, at 1528 (explaining that "lower courts perceive municipal zoning by age as posing serious constitutional questions").
310. The rules likely would survive a rational basis challenge, which is why I argue that their failure is more likely a political one or is to be attributed to a general sense of discomfort with intrusive "public" rules. See infra note 221.
311. But see O'Connor v. Vill. Green Owners Ass'n, 33 Cal. 3d 790, 797 (Cal. 1983) (invalidating a private community's "restrictive covenant against children").
312. See Ellickson, supra note 20, at 1528;
313. see also Haar, supra note 35, at 1016-1017 (arguing that courts now review public land use regulations with a closer eye, leaving behind "[t]he benevolent standard of reasonableness").
314. See, e.g., Taxpayers Ass'n of Weymouth Twp., Inc. v. Weymouth Twp., 364 A.2d 1016, 1021, 1037-38 (N.J. 1976) (affirming a zoning ordinance's creation of a district for an elderly mobile home park);
315. Maldini v. Ambro, 36 N.Y.2d 481, 483, 488 (1975) (affirming a town's powers to amend a zoning ordinance to allow for a "Retirement Community District").
316. See supra note 217 and accompanying text.
317. See supra note 26.
318. See id.
319. See, e.g., HIGHWAY GATEWAY CORRIDOR OVERLAY DISTRICT PLAN, EXHIBIT B, available at http//www.sanantonio.gov/planning/pdf/neighborhoods/Corridor-Dist/ Hwy-151-Standards.pdf (describing San Antonio's Corridor Overlay District, which requires "existing trees and understory plants" to be preserved).
320. See supra note 159.
321. Gillette, supra note 37, at 1395.
322. Ellickson, supra note 20, at 1528.
323. See NELSON, supra note 16, at 37 (observing that "[z]oning has always been a crude device for maintaining neighborhood quality" but has not "traditionally ... regulated such aesthetic matters as the details of neighborhood landscaping and architecture").
324. Krieger, supra note 2, at 9.
325. This phrase builds off of Ellickson's suggestion of "New Institutions for Old Neighborhoods." See Ellickson, supra note 19.
326. See supra note 18 and accompanying text.
327. Robert Nelson proposes that "[a] group of individual property owners in an older established neighborhood" should be able to "petition the state to form a private neighborhood association." NELSON, supra note 16, at 266. Robert Ellickson, although wary of extensive land use regulation, similarly suggests that in some urban areas, "extraordinary Regulatory [Block Level Improvement Districts]" could be formed, provided they obtained approval from a large percentage of owners on the block. Ellickson, supra note 19, at 99. George Liebmann proposes that existing neighborhoods should be allowed to implement private associations without requirements of unanimous consent. Like Ellickson, however, he proposes that they should have only limited regulatory powers. Liebmann, supra note 18, at 369.
328. See supra note 18 and accompanying text.
329. See infra notes 315-319 and accompanying text.
330. Franzese & Siegel, supra note 43, at 1126-1127
331. Oren Bar-Gill, The Behavioral Economics of Consumer Contracts, 92 MINN. L. REV. 749, 761-765 (2008) (discussing, in the context of credit card borrowing, evidence of consumers' systematic errors and misperceptions).
332. FISCHEL, supra note 36, at 59-60 (describing consumers who shop "for a community and a school district as well as for homes with larger lots or more bathrooms").
333. Tiebout, supra note 10, at 423.
334. Id.
335. (citing Wendy Bell, Familism and Suburbanization: One Test of the Choice Hypothesis, RURAL SOCIOLOGY (1956)).
336. FISCHEL, supra note 36, at 60.
337. Id.
338. (citing studies performed by Wallace Oates in 1969;
339. Teske, Schneider, Mintrom, and Best in 1993;
340. and Schneider, Teske, Maschall, and Roch in 1998).
341. Id. at 59 (arguing that "people move for reasons that typically have little to do with local government").
342. Id. at 61.
343. Id.
344. (citing Kenneth N. Bickers and Robert M. Stein, The Microfoundations of the Tiebout Model, 34 URB. AFF. Q. 76 (1998)).
345. See infra notes 315-319 and accompanying text.
346. See infra note 331 and accompanying text.
347. See James L. Winokur, Choice, Consent, and Citizenship, in COMMON INTEREST COMMUNITIES, supra note 63, at 87, 89 (describing how planned unit developments "have allowed local governments to save themselves money by requiring that streets and other infrastructure be created by the developer and held in private rather than government ownership").
348. See Low, supra note 75, at 20 ("California and other states that have experienced a property tax revolt find common interest development housing particularly attractive because it transfers the debt liability, building of infrastructure, and provisions of services to private corporations, while at the same time the municipality collects property taxes from residents.").
349. See Franzese & Siegel, supra note 43, at 1121 (noting that "CIC residents seldom receive a local tax credit to offset" association fees for private services provided).
350. See supra note 21.
351. See infra note 263 and accompanying text.
352. See RANDALL BARTLETT, ECONOMIC FOUNDATIONS OF POLITICAL POWER 155 (1973);
353. SUSAN ROSEA-ACKERMAN, RETHINKING THE PROGRESSIVE AGENDA 15 (1992) (describing pubulic choice scholars' view of "legislation as the outcome of political dealmaking" that benefited "existing producers").
354. See, e.g., Robert Becker & Dan Mihalopoulos, Community Input an Illusion, CHI. TRIB., Jan. 28, 2008, at 1 (describing a developer's large contributions to an alderman's campaign committee).
355. See, e.g., id. (describing developers who seek "valuable zoning changes that allow them to build bigger and taller projects").
356. See Low, supra note 75, at 20 (describing how "[d]evelopers want to maximize their profits by building more houses on less land" and how zoning allows this);
357. Setha Low, Unlocking the Gated Community, in PRIVATE CITIES: GLOBAL AND LOCAL PERSPECTIVES 45, 56 (George Glasze et al. eds., 2006) (describing how "[d]evelopers usually approach the village board saying, 'We need more flexibility in designing our subdivisions'"
358. (citing field notes of Jörg Plöger)).
359. But see Nicole Stelle Garnett, Unsubsidizing Suburbia, 90 MINN. L. REV. 459, 481 (2005) ("[M]any local governments have required developers to construct and dedicate facilities to the community. Over time, communities increased their demand for such dedications from basic infrastructure ... to property for public facilities such as schools, fire and police stations, and parks.").
360. See Eagle, supra note 43, at 911 (explaining that "existing homeowners ... constituted the key [special interest] groups behind zoning in the suburbs").
361. See, e.g., Chalon Drive, L.L.C. v. Town of Chevy Chase, Circuit Court for Montgomery County, Maryland, No. 263808-V (2005) (residents attempted, unsuccessfully, to have their town designated as a historic district and then sought other methods to prevent tear-downs of old structures).
362. See supra note 194 and accompanying text.
363. See Fennell, supra note 13, at 170 (discussing how entry and exit can change the composition of local government voters and hence, local government policies).
364. FISCHEL, supra note 36, at 80.
365. See, e.g., supra note 236 and accompanying text;
366. MCKENZIE, supra note 66, at 103-104 (arguing that "[g]overnment policies [during the 1960s and 70s, when private covenanted communities began to boom] on housing and urban planning seemed largely limited to ratification of decisions made by real estate developers and driven by considerations of profit").
367. See, e.g., Reichman, supra note 59, at 263 (arguing that the private community encourages participation and "revers[es]... anti-community trends").
368. See supra notes 227-228 and accompanying text.
369. See, e.g., Alexander, supra note 198, at 162 (concluding, after studying several private developments, that "apathy and frustration co-existed on a fairly widespread basis").
370. See infra notes 315-319 and accompanying text.
371. See infra note 369 and accompanying text.
372. Fennell, supra note 5, at 557.
373. See, e.g.. Telephone Interview with anonymous resident (Dec. 19, 2009) (arguing that "there's really no democracy associated with HOA [homeowners' association] governance");
374. Telephone Interview with anonymous resident (Jan. 8, 2009) (stating that architectural committee signed off on homeowners requests to dig residential wells and recorded this new covenant but that the board then declared the covenant revoked);
375. Telephone Interview with anonymous resident (May 12, 2008) (explaining that a board had retaliated against the homeowner after she called problems to their attention, enforcing what she believed were nonexistent violations that they failed to enforce against other neighbors).
376. See Carol M. Rose, New Models for Local Land Use Decisions, 79 Nw. U. L. REV, 1155, 1156-1160 (1985) (noting that local institutions often make small decisions involving small numbers of people, and these very types of decisions "may open the door to arbitrariness or inside deals").
377. See Fennell, supra note 5, at 838 ("In the usual case, a developer drafts and records a master deed, also known as a declaration, which contains a set of CC&Rs.");
378. Franzese & Siegel, supra note 43, at 1113 ("[T]he developer makes the most critical decisions concerning CIC organization and governance" in its role as the drafter of the declaration.).
379. See Fennell, supra note 5, at 869 (observing that "market signals from buyers to developers are often muted").
380. See Richard Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 STAN. L. REV. 1115, 1128 (1996) ("The right to vote in local elections is nearly always limited to people physically resident within local boundaries.").
381. See supra note 125 and accompanying text.
382. See Fennell, supra note 5, at 896 (suggesting that developers should possibly be required to "offer ... an a la carte menu of use restrictions" to "would-be residents in a given community" or to incorporate input from buyers into the CC&Rs);
383. Franzese, supra note 44, at 582 (discussing "[r]esidents' lack of perceived and actual influence").
384. See Fennell, supra note 5, at 857-858 (applying Tiebout's theory to private covenanted communities).
385. See, e.g., Epstein, supra note 9, at 912.
386. Fennell, supra note 5, at 873-876 (discussing the benefits and problems of bundling).
387. See, e.g., Winokur, supra note 248, at 99 (observing that "developers regularly ... lift servitude language from government forms");
388. id. at 98 & n.30 (observing that "standard forms proliferate" and that "[s]ervitudes are often largely boilerplate language, drafted by attorneys who rely on increasingly standardized forms").
389. Id.at 99 & n.31.
390. See Epstein, supra note 9, at 917-918
391. See, e.g., URBANA ZONING ORDINANCE ART. XIII-5.G., available at http://www.city.urbana.il.us/urbana/cpmmunity-development/planning/Zoning/ Article-13.pdf (explaining that "the City, in consultation with district property owners and residents, will prepare a plan to conserve and promote desirable characteristics of the neighborhood").
392. See, e.g., CITY OF DALLAS, CONSERVATION DISTRICT OVERVIEW 5, available at http://www.dallascityhall.com/pdf/planning/ConservationTotalPacket.pdf (explaining how a neighborhood proposing a Conservation District establishes "a steering committee to meet with city staff and develop a proposed ordinance to govem the zoning changes").
393. See supra note 125 and accompanying text.
394. CAMBRIDGE, MASS., CODE §2.78.180(I) (2009) http://library.municode. com/HTML/16889/level3/T2-C2.78-AIII.html#T2-C2.78-AIII-2.78.180.
395. COLLINS ET AL., supra note 109, at 33-34.
396. CARMEL CITY CODE ch. 10, art 1, § 23D.03-C.l.d., available at http//www.ci.carmel.in.us/services/DOCS/DOCSZOchptrs/ ZO%20Ch%2023D%20Old%20Town%20Overlay%20(Winter%202009%20vl).pdf.
397. See Ellickson, supra note 19, at 103 (arguing that "a rule of creation by the owners of a simple majority of property value poses risks of majoritarian oppression").
398. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1030-1031 (1992).
399. 438 U.S. 104, 124 (1978) (specifying as the three factors the "economic impact of the regulation on the claimant," the regulation's interference with the claimant's investment-backed expectations, and the "character of the governmental action").
400. See Jed Rubenfeld, Usings, 102 YALE L.J. 1077, 1159 (1993). The requirement that an individual use a certain architectural design for any new construction might not rise to the level of state "conscription" described by Rubenfeld, but it has trappings of his concerns over requiring affirmative action on the part of individuals.
401. Id. at 1080.
402. See, e.g., Penn Cent Transp. Co. v. City of N.Y., 438 U.S. 104, 109, 115, 138 (1978) (holding that the application of a New York City historic landmark ordinance, which was enacted after Penn Central purchased the property, was not an unconstitutional taking);
403. Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926) (describing "[r]egulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained" (emphasis added));
404. Collins v. Historic Dist. Comm'n of Carver, 897 N.E.2d 1281, 1282-83,1286 (Mass. App. Ct. 2008) (finding no taking where a town apphed a historic district bylaw to property purchased prior to the enactment of the bylaw);
405. Lackland & Lackland v. Readington Twp., No. SOM-L-344-3, 2005 WL 3074714, at *1, *5, *36-37 (N.J. Super. Ct. Nov. 16, 2005) (affirming the constitutional validity of an "agricultural- residential" zoning district, which was to "facilitate farmland preservation" and "maintenance of the Township's rural character," among other purposes, and was adopted after a property owner acquired property and apphed to develop the property).
406. See Gillette, supra note 37, at 1407 (describing covenants as an "all-or-nothing regime"). Although private suburban subdivisions are also governed by a planned unit development "overlay," incorporated within the municipal code, many are within cities' extraterritorial jurisdiction or in counties with few zoning restrictions. Both of these scenarios offer fewer opportunities for public influence in the overlay drafting process.
407. See Parlow, supra note 149, at 527 n.84;
408. supra text accompanying note 157.
409. See, e.g., ALBERT O. HIRSCHMAN, EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS, AND STATES 33 (1970) (describing theoretical situations where the exit option is not available);
410. Alexander, supra note 198, at 153-154 (arguing that in private covenanted communities, "[t]ransaction and other costs ... constrain disappointed owners from choosing ... [the exit] option").
411. See infra notes 315-319
412. Carol M. Rose, Comment, Servitudes, Security, and Assent: Some Comments on Professors French and Reichman, 55 S. CAL. L. REV. 1403, 1405 (1982).
413. See Olin L. Browder, Running Covenants and Public Policy, 77 MICH. L. REV. 12, 18 (1978) (explaining that under English law, "affirmative burdens will not run either at law or in equity").
414. See, e.g., Uriel Reichman, Toward a Unified Concept of Servitudes, 55 S. CAL. L. REV. 1177, 1229 (1982) (explaining that American courts, in applying the touch and concern rule, required that the "promised activity ... be carried out on the promisor's land" and that it "benefit the promisee's land");
415. Note, Touch and Concern, The Restatement (Third) of Property: Servitudes, and A Proposal, 122 HARV. L. REV. 938, 939 (2009) (describing the first English explanation of touch and concern in Congleton v. Pattison, which required the covenant to '"directly affect[] the nature, quality, or value of the thing demised, [or] the mode of occupying it'"
416. (quoting Congleton v. Pattison, (1808) 10 East 130, 103 Eng. Rep. 725 (Ch.)).
417. See, e.g., Susan F. French, Toward the Modern Law of Servitudes: Reweaving the Ancient Strands, 55 S. CAL. L. REV. 1261,1290 (1982) (arguing that "[t]he touch and concern requirement tends to assure that parties will be bound only to the obligations which a reasonable purchaser would expect to have incurred, and will acquire only the benefits which a reasonable purchaser would expect to have gotten" and "advances ... fairness and marketability concerns").
418. See Newman & Losey, supra note 40, at 1332;
419. see also RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 3.2 (2000) (eliminating the touch and concern requirement).
420. But see Note, supra note 300, at 938 (discussing how only "one line of cases" has adopted the test that replaces touch and concern in the Restatement).
421. See Newman & Losey, supra note 40, at 1332 (discussing how in the United States, "touch and concern" has sometimes been construed to mean that "the promisor's legal interest as owner is rendered less valuable, or the promisee's legal interest as owner rendered more valuable, because of the promise").
422. See Browder, supra note 299, at 16
423. (discussing how the English court in Keppel v. Bailey, (1834) 2 My. & K. 517, 39 Eng. Rep. 1042 (Ch.), in requiring horizontal privity for covenants to run, "seemed primarily concerned ... that purchasers should not be bound by a variety of covenants of which they had no knowledge").
424. See Newman & Losey, supra note 40, at 1322 (discussing how English courts require a "relationship of lessor and lessee" for covenants to run).
425. See, e.g., id. at 1324 (discussing one interpretation, which requires only a "succession in interest... between the covenantee and the covenantor, a succession created by the conveyance of the property to which the burden is to attach");
426. see also id. at 1327 ("In several states decisions upholding the running of covenants merely refer to the fact that the restriction was in a deed of conveyance.").
427. See Mary Van Houweling, The New Servitudes, 96 GEO. L.J. 885, 896 (2008) (discussing how American courts' "more liberal definition of horizontal privity" was practical for America "[b]ecause covenants entered into in the context of a land transfer would be publicly recorded in the deed").
428. See Browder, supra note 299, at 16 (arguing that recording eliminates the privity requirement);
429. see also Van Houweling, supra note 307, at 896 (observing that "[r]ecording acts ... represent ... [a] notice-facilitating mechanism").
430. MINN. STAT. § 515B.4-107 (2002 & Supp. 2008).
431. VA. CODE ANN. § 55-509.4(A)(ii) (Supp. 2009).
432. Id. § 55-509.5(A)(12).
433. Id. § 54.1-2350(3).
434. CAL. CIv. CODE. § 1368(a)(1) (West 2007).
435. See FISCHEL, supra note 36, at 61;
436. supra text accompanying notes 242-244
437. ZOGBY INTERNATIONAL, FOUNDATION FOR COMMUNITY ASSOCIATION RESEARCH TRACKING POLL 3, 17 (2007), http://www.cairf.org/research/zogby.pdf.
438. Winokur, supra note 248, at 99 n.32
439. (citing Interviews by Nathan Simmons with Jeff Morrison, Subdivision Appraiser, U.S. Dep't of Hous. and Urban Dev., Denver, Colo. (July 14-15, 1987)).
440. Id. at 99.
441. Alexander, supra note 198, at 155.
442. Telephone Interview with anonymous resident (Jan. 28, 2009).
443. Id.
444. Telephone Interview with anonymous resident (Jan. 8, 2009).
445. Alexander, supra note 198, at 156.
446. Id.
447. Telephone Interview with anonymous resident (Jan. 29, 2009).
448. Telephone Interview with anonymous resident (Dec. 19, 2008).
449. Telephone Interview with anonymous resident (Dec. 15, 2008).
450. Rose, supra note 298, at 1406.
451. Id. at 1407.
452. A title search is of course likely to reveal basic zoning restrictions, but it may not reveal restrictions in a "targeted zoning ordinance." Seth Schofield, In Search of the Institution in Institutional Controls: The Failure of the Small Business Liability Relief and Brownfields Revitalization Acts of 2002 and the Need for Federal Legislation, 12 N. Y.U. ENVTL. L.J. 946, 1007 (2005);
453. see also Michael J. Garrison & David Ritzel, Zoning Restrictions and Marketability of Title, 36 REAL ESTATE L.J. 257 (2006) (discussing the "general rule that zoning laws are not encumbrances and do not impair marketability of title").
454. Anthony J. Samson, A Proposal to Implement Mandatory Training Requirements for Home Rule Zoning Officials, 2008 MICH. ST. L. REV. 879, 892-893 (describing new zoning tools as "complex" and explaining many land use officials' lack of understanding or awareness of them).
455. The lack of heuristic clues arises due to previously legal property uses that occur prior to the imposition of covenants, thus resulting in a lack of uniformity in the communities. See, e.g., COLLINS ET AL., supra note 109, at 33 (discussing the "rate at which historic buildings were being lost" prior to the implementation of Atlanta's preservation ordinance).
456. See id.
457. See, e.g., HAWAII COMMUNITY DEVELOPMENT AUTHORITY, MASTER PLAN SUMMARY 113-25, available at http://www.wardneighborhood.com/Proposals/11- Master%20Plan%20Summary-WN-Aprl6-08.pdf.
458. Id. at 113.
459. See, e.g., Press Release, Forest City Washington, Groundbreaking at The Yards: Construction Now Underway on Major Mixed-Use Project in Near Southeast (Oct. 3, 2007), available at http://www.dcyards.com/pdf/News100207.pdf〉 (discussing the redevelopment of old navy yards in Washington, D.C, where the developer plans to rehabilitate the existing industrial buildings and convert them to apartments).
460. See, e.g., id (advertising an urban redevelopment project but not mentioning a homeowners' association);
461. see also HAW. CMTY. DEV. AUTH., supra note 333.
462. See Frantz, supra note 42, at 74 (concluding that Americans move to private gated communities "to guarantee that the community they have bought themselves into will not change drastically in the course of time").
463. Wayne S. Hyatt, A New Look: Community Governance Structures that Work in the Market and in Practice, A.L.I.-A.B.A. COURSE OF STUDY 425, 433 (2008).
464. See, e.g., Ann Martindale, Comment, Replacing the Hardship Doctrine: A Workable, Equitable Test for Zoning Variances, 20 CONN. L. REV. 669, 669 (1988) (explaining that the "hardship" test for granting variances to land use regulations was developed "as a safeguard against the unconstitutional 'taking'").
465. See, e.g., SADDLEBROOKE TWO HOMEOWNERS ASSOCIATION, RULES AND REGULATIONS 18 (Mar. 9, 2009), available at http://www.sbhoa2.org/picture/rules-and- regulations-march-09.pdf (prohibiting homeowners from "landscap[ing] or plac[ing] anything . . . on . . . Golf Course area").
466. See, e.g., DOUGLAS YATES, NEIGHBORHOOD DEMOCRACY 19-20 (1973) (discussing the failure of urban renewal to foster community participation and the strong neighborhood opposition that it caused).
467. See, e.g., Vernon Twp. Volunteer Fire Dep't, Inc. v. Connor, 855 A.2d 873, 880 (Pa. 2004) ("As a general rule, a restrictive covenant may be discharged if there has been acquiescence in its breach by others, or an abandonment of the restriction.").
468. See, e.g., Franzese, supra note 44, at 556 ("The typical declaration vests governing bodies with broad authority to establish and impose penalties for infractions of the rules.");
469. see also Reichman, supra note 59, at 269 ("The modern attitude is to vest an almost unlimited discretion in an architectural control committee to pass upon building plans.").
470. See supra note 342;
471. see also Welshire Civic Ass'n v. Stiles, 1993 WL 488244, at *3-4 (Del. Ch. 1993) (holding the 1937 deed restrictions containing specific criteria about the structure and material of fences unenforceable because the Association tasked with enforcement "repeatedly ignored its own standards").
472. See, e.g., Rose, supra note 298, at 1410 & n.30 (explaining that where neighbors in a private community "allow a change by failing to object," this '"change of circumstance' may be used as a way of saying that they acquiesced in the relaxation of the restriction," and citing cases where abandonment occurred in such circumstances).
473. Simms v. Lakewood Vill. Prop. Owners Ass'n, 895 S.W.2d 779, 786 (Tex. App. 1995);
474. see also Stolba v. Vesci, 909 S.W.2d 706, 710 (Mo. Ct. App. 1995) (requiring "continuous acquiescence evidenced by persistent violations" for a showing of waiver or abandonment);
475. Hammons v. Table Mountain Ranches Owners Ass'n, 72 P.3d 1153, 1156 (Wyo. 2003) (finding that a covenant is "abandoned by failure to enforce" when "the covenant is violated, the violations are ignored and acquiesced to, and the violations are . . . so great . . . as to neutralize the benefits of the restriction" (internal quotation marks omitted)).
476. See, e.g., Winokur, supra note 248, at 119 & n.118 (arguing that although waiver due to inconsistent enforcement is rare, "board members may fear that enforcement flexibility will open the board itself to the risk of having permanently waived a restriction it fails to enforce against every technical violator");
477. see also Wayne Hyatt, Common Interest Communities: Evolution and Reinvention, 31 J. MARSHALL L. REV. 303, 336 (1998) (observing that "[i]n many instances, community associations enforce rules, make decisions, or take other actions because there is a fear that if they do not, they will 'set a bad precedent'" and "[i]n part this is the result of cases dealing with estoppel and waiver . . . [and] an obvious need to be concerned about these legal issues.").
478. COMMUNITY ASSOCIATIONS INSTITUTE, BOARD MEMBER TOOL KIT, SECTION 15: RULES, available at http://www.caionline.org/members/ Board%20Member%20Tool%20Kit/toolkitl5.pdf (through paid access and on file with author).
479. See, e.g.. NELSON, supra note 16, at 78 (discussing how board members face "high demands on their time").
480. See, e.g., Vernon Twp. Volunteer Fire Dep't, Inc. v. Connor, 855 A.2d 873, 880 (Pa. 2004) ("Where changed or altered conditions in a neighborhood render the strict adherence to the terms of a restrictive covenant useless to the dominant lots, we will refrain from enforcing such restrictions.").
481. See, e.g., SADDLEBROOKE TWO HOMEOWNERS ASSOCIATION, supra note 340, RULES AND REGULATIONS 2, 4, available at http://www.sbhoa2.org/picture/rules-and- regulations-march-09.pdf (describing the Rules Compliance Committee's authority, including its power to hear appeals from an enforcement decision, subject to the homeowners' association board's approval).
482. See NELSON, supra note 16, at 84 (describing how, for appeals from architectural review committee decisions, a "unit owner in some cases may be able to obtain a referendum vote among the association's full membership," but conceding that "most standard neighborhood constitutions written by real estate developers do not provide for an internal appeals process").
483. See, e.g., Topanga Ass'n for a Scenic Cmty. v. County of L.A., 522 P.2d 12, 19 (Cal. 1974) ("If the interest of ... parties in preventing unjustified variance awards for neighboring land is not sufficiently protected, the consequence will be subversion of the critical reciprocity upon which zoning regulation rests.").
484. I view the amendment process as allowing for residential control over keeping the covenants or modifying them. Others, however, reasonably see the process as a threat to rule durability. See, e.g., Terrell R. Lee, In Search of the Middle-Ground: Protecting the Existing Rights of Prior Purchasers in Common Interest Communities, 111 PENN ST. L. REV. 759, 775 (2007) (arguing that "the adoption of new affirmative covenants in a common interest community can substantially alter a prior purchaser's existing rights").
485. See NELSON, supra note 16, at 94-95 (explaining that a covenanted community's constitution (the declaration) "generally requires a vote of the full membership" and "a vote considerably greater than 50 percent"). And even where permitted, the extent of the amendments may be limited.
486. See, e.g., Brockway v. Harkleroad, 615 S.E.2d 182, 184 (Ga. Ct. App. 2005) (describing an enforceable declaration in a private covenanted community that permitted covenants and restrictions to "be amended during the first twenty (20) years from the [declaration date] by an instrument signed by not less than ninety percent (90%) of the Lot Owners and thereafter by an instrument signed by not less than seventy-five percent (75%) of the Lot Owners," although recognizing that those amendments "destructive of the [declaration's] uniform scheme . . . may impair the protected interests of lot owners who do not consent" (emphasis added));
487. Lee, supra note 354, at 774 (describing a Missouri court decision that interpreted a private "community's original declaration [that] included a modification clause which permitted amendments by a majority vote" as precluding the ability to "add new or different covenants");
488. HOAS: Right to Change Restrictive Covenants, 36-DEC. REAL EST. REP. 5, 5 (2006) (explaining that even though "to govern communities over long periods of time, most declarations provide for amendments," a North Carolina court decision required amendments to "be reasonable in light of the contracting parties' original intent").
489. See, e.g., Curtis Sproul, The Many Faces of Community Associations under California Law, in COMMON INTEREST COMMUNITIES, supra note 63, at 45, 73 n.71 (describing, after "assisting] over 200 community association clients in campaigns soliciting member approvals to amend bylaws and CC&Rs," the near impossibility of getting "more than a majority of all members to cast ballots" and adding that the common supermajority approvals required in private covenanted communities are therefore "particularly burdensome");
490. see also Winokur, supra note 248, at 118 (observing that "[i]n many communities ... [unanimous or supermajority vote] amendment requirements render even noncontroversial amendments infeasible").
491. See RiverPointe Homeowners Ass'n v. Mallory, 656 S.E.2d 659, 659-661 (N.C. Ct. App. 2008) (upholding a homeowners' association's ability to fine a homeowner $2200, place a lien on her property, and foreclose on the lien as a result of the homeowner's failure to maintain appropriate landscaping in accordance with the covenants).
492. See, e.g., Dwan v. Indian Springs Ranch Homeowners Ass'n, 186 P.3d 1199, 1203 (Wyo. 2008) (describing a letter from a homeowners' association board to a resident, confirming and approving her request to "obtain a variance . . . in order to build a guest house/garage" above the height limit).
493. Id. at 1201 (emphasis added) (internal quotation marks omitted).
494. Id. at 1201-1202
495. See CITY OF GREENSBORO PLANNING DEPARTMENT, supra note 125, at 4, available at http://www.greensboro-nc.gov/NR/rdonlyres/B1A22D97-4EA4-4C60-8D4D- F47006E34D5A/0/packet-7-5-07-wo-enb-ord.pdf (explaining that boundaries of neighborhood conservation overlays "may be altered in the same manner as they are created").
496. See Mandelker, supra note 28, at 425-26 (describing how rezonings require a majority vote of the local legislative body and a supermajority vote if 20% or more of interested property owners object to the rezoning);
497. see also Eagle, supra note 37, at 858 (describing zoning rules as "difficult to alter").
498. But see Craig A. Peterson & Claire McCarthy, Small-Tract Rezonings: Toward Expanded Procedural Safeguards, in LAND USE LAW: ISSUES FOR THE EIGHTIES 188, 188 (Edith Netter ed., 1981) (discussing how instead of official, legislative rezonings, "local governments increasingly favor discretionary reviews of proposed development" and how, often, "the rezoning process does not operate in the manner outlined in the treatises").
499. See, e.g.. Nelson, supra note 17, at 835 (arguing that zoning places "matters such as the control of fine details of neighborhood architecture . . . under . . . substantial influence . . . [of] outsiders leav[ing] the neighborhood exposed to regulatory actions that it does not want").
500. See, e.g., Peterson & McCarthy, supra note 363, at 191 (suggesting that the "lobbying or informal advocacy which often precedes rezoning hearings . . . undermines public confidence in the rezoning process").
501. Paul H. Sedway, Commentary, Plan-Based Administrative Review: A Planning and Zoning Debate, in LAND USE LAW: ISSUES FOR THE EIGHTIES, supra note 363, at 9595.
502. This argument builds from the broader decentralization literature, which suggests that the smaller the size of the government and the citizen unit, the more ability there is for voice and effective deliberation. See Briffault, supra note 12, at 505.
503. See, e.g.. ARIZ. REV. STAT. ANN. § 11-807B (Supp. 2008) ("The board of adjustment may: . . . Allow a variance from the terms of the ordinance when, owing to peculiar conditions, a strict interpretation would work an unnecessary hardship . . . .");
504. CAL. GOV'T CODE § 65906 (West 2009) (permitting "[v]ariances from the terms of the zoning code . . . only when, because of special circumstances applicable to the property, . . . the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property");
505. CONN. GEN. STAT. § 8-6(a)(3) (2003) (granting the zoning board of appeals the power "to determine and vary the application of the zoning . . . ordinances ... where . . . a literal enforcement of such . . . ordinances . . . would result in exceptional difficulty or unusual hardship");
506. MASS. GEN. LAWS ch. 40A, § 10 (2004) (giving the "permit granting authority ... the power after public hearing . . . to grant . . . a variance from the terms of the applicable zoning ordinance . . . where . . . a literal enforcement of the provisions of the ordinance . . . would involve substantial hardship");
507. 53 PA. CONS. STAT. § 10910.2(a) (1997) (allowing the zoning hearing board to grant a variance when, among several requirements, the property has "unique physical circumstances . . . and that the unnecessary hardship is due to such conditions").
508. See, e.g., Martindale, supra note 339, at 670 (observing that in Connecticut, "[a]n estimated ninety-five to ninety-nine percent of 'homeowner' variances are granted for conditions presenting no hardship whatsoever" and suggesting that "[d]isrespect for the hardship doctrine is virtually a tradition . . . nationwide").
509. See Shawn Jensvold, The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA): A Valid Exercise of Congressional Power?, 16 BYU J. PUB. L. 1, 9 (2001) (describing boards of adjustment).
510. See, e.g., MASS. GEN. LAWS ch. 40A, § 10 (allowing the permit granting authority, which also grants variances, to grant a variance only after a public hearing).
511. See, e.g., N.J. STAT. ANN. § 40:55D-17a (West 2008) ("Any interested party may appeal to the governing body any final decision of a board of adjustment . . . .").
512. See, e.g., supra note 266 and accompanying text.
513. See, e.g., Sara C Bronin, The Quiet Revolution Revived: Sustainable Design, Land Use Regulation, and the States, 93 MINN. L. REV. 231, 259 (2008) (discussing "local land use departments" that are too "[underfunded and understaffed" to revise laws to be more environmentally sound).
514. Sam Roberts, How Long to Repair A Streetlight Bulb? 12 Months, if You're Persistent, N.Y. TIMES, Feb. 7, 2009, at A1.
515. See, e.g., BABCOCK & LARSEN, supra note 21, at 140 (arguing that if "neighborhood vigilantes" do not enforce the regulations in a public neighborhood with localized zoning, there will likely be underenforcement, as city administrators will not fill in).
516. For example, where a rule within the hybrid community's public zoning overlay requires "green building" to ensure environmentally responsible urban living, see, e.g., MUELLER GREEN RESOURCES GUIDE 7-10, available at http://www.muelleraustin.com/pdf/mgrg.pd (requiring that new construction meet national or local green building standards), and the city is unwilling to modify that rule through rezoning, a homeowner could nonetheless (hypothetically) get away with violating a more specific private covenant that related to green building.
517. See supra notes 290-292 and accompanying text.
518. See, e.g., Ellickson, supra note 19, at 103. In some cases, city politicians have informally required a supermajority vote where it was not required by law. In Dallas, for example, when a neighborhood had the requisite majority vote in favor of overlay rules, a council member "persuaded the council to reject the overlay," explaining, "When you're changing someone's property rights, you're going to have to have more of a majority than 50-plus percent."
519. Bush, supra note 26.
520. Voters may legally approve zoning that might otherwise be considered spot zoning. See, e.g., City of Eastlake v. Forest City Enters., 426 U.S. 668, 680 (1976) (Powell, J., dissenting) (describing the majority's decision, which allowed voters by referendum to make a zoning decision about the "status of a single small parcel owned by a single 'person,'" as a "'spot' referendum");
521. id. at 679 (majority opinion) (affirming a procedure by which voters by referendum rejected a "zoning change to permit construction of a multi-family, high-rise apartment building").
522. CITY OF GREENSBORO PLANNING DEPARTMENT, supra note 125, at 4. Allowing individual homeowners to "opt out" of the overlay will detract from the goal of creating a broader community aesthetic. And it may give the opting-out homeowners an unfair advantage because their neighbors' property rights will all be equally restricted, leaving only the opt-outs free and clear. But requiring community voting on an overlay to approve the opt-outs will address these concerns.
523. Epstein, supra note 9, at 914 (discussing the "voluntary decision to purchase" and how that decision, combined with notice, creates consent in private covenanted communities).
524. Many historic neighborhoods already place markers on street signs to alert passersby to the existence of an historic district.
525. See, e.g., The South End Historical Society, Inc., http://www. southendhistoricalsociety.org/about.htm (last visited Nov. 30, 2009) (describing a project to fund "the installation of markers on major street signs designating the area as an historic district");
526. Welcome to Ogden City, http://archive.ogdencity.com/index.php?module= ibcms&fxn=press.pr-96 (last visited Nov. 30, 2009) (describing as an "action to be taken" within a historic district the goal to "replace street signs with brown signs to denote the historic district").
527. Conversation with Terry Martin, Interim Dir. of Research, Tarlton Law Library (Feb. 4, 2009) (suggesting the addition of colored signs to neighborhoods with overlays).
528. These same suggestions for notice might also be useful for rule-bound communities not discussed in-depth in this Article because they are more strongly oriented toward services. A potential buyer in a business improvement district, for example, might benefit from a sign alerting him to the presence of this district, although potential business owners are likely to be more informed of the rules going in than the typical property buyer.
529. See supra notes 309-13 and accompanying text.
530. Although paper notice has failed to alert many incoming homeowners in covenanted communities to the rules, it is still an important first step. See supra notes 300-07 and accompanying text. 388.
531. See, e.g., Alexander, supra note 198, at 160 (describing how one homeowner exclaimed in an interview, "I find the rule that you can't build any structure without the approvement [sic] of the [homeowners' association] board to be completely unreasonable. The homeowners' association has got to be kidding; this is my property!").
532. See, e.g., Mathew D. McCubbins & Daniel B. Rodriguez, When Does Deliberating Improve Decisionmaking?, 15 J. CONTEMP. LEGAL ISSUES 9, 30-34 (2006) (describing study indicating that deliberation, even within a very small group of individuals, can decrease social welfare).
533. See id. at 37-38 (describing study indicating that deliberative processes can be beneficial where there are one or several trusted, knowledgeable speakers who can teach the other participants about the issue).
534. 391. 191 Cal. Rptr. 209,211 (Ct. App. 1983).
535. Id. at 214-15. Residents, however, will not likely have the time or the will to participate in multiple hearings about decisions to enforce rules or grant variances.
536. See, e.g., Alexander, supra note 198, at 162 (concluding that many residents in private covenanted communities are apathetic);
537. see also Telephone Interview with anonymous resident (Dec. 15, 2008) (describing the prevailing residential attitude within private covenanted subdivisions as "apathy" and arguing that "most people see their homes as a respite from the stresses ... of the world" and do not want to be involved in community decision making). As such, the board at minimum could perhaps be required by state or city statute to provide a list of all pending enforcement decisions and solicit input about those proposed decisions. Although many residents do not attend meetings,
538. see, e.g., Matthew J. Parlow, Civic Republicanism, Public Choice Theory, and Neighborhood Councils: A New Model for Civic Engagement, 79 U. COLO. L. REV. 137, 165-66 (2008) (explaining that "attendance and participation in homeowners associations tend to be low"), boards could at least provide web-based or mailed notice of the list and ask residents to respond in writing with any concerns.
539. Reston, First Amendment, supra note 59, at Art. III.6(d)(4)(iii). 394. See supra note 143 and accompanying text.
540. See supra note 144 and accompanying text.
541. Franzese & Siegel, supra note 43, at 1140.
542. Note, supra note 300, at 953.
543. See, e.g., ILLANHEE NORTH ASSOCIATES, DECLARATION OF PROTECTIVE COVENANTS, CONDITIONS AND RESTRICTIONS OF THE PLAT OF ILLANHEE NORTH 1 (Dec. 1994), available at http://inhoa.org/docs/CCRs-WEB-2008.pdf (providing for the initial declaration to be effective through 2010 unless terminated, and then automatically extended at ten-year intervals unless 75% of lot owners voted to terminate the covenants);
544. see also Note, supra note 300, at 953 (discussing how two handbooks that address private communities recommend similar initial periods of twenty years, or the time required for amortization of initial mortgages, followed by ten-year extensions with options for termination (citing URBAN LAND INST., THE HOMES ASSOCIATION HANDBOOK § 12.81, at 212 (rev. ed. 1966);
545. U.S. DEP'T OF HOUS. AND URBAN DEV., LAND PLANNING PROCEDURES AND DATA FOR INSURANCE FOR HOME MORTGAGE PROGRAMS app. 2, at 6 (Aug. 1968), available at http://www.hud.gov/offices/adm/hudcups/handbooks/hsgh/4140.2/index.cfm (select "Appendix 2: Declarations," PDF version))).
546. Franzese & Siegel, supra note 43, at 1130.