Public Communities, Private Rules

Hannah Wiseman - University of Texas Law School

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Place matters. No matter one’s income, and no matter one’s status as a renter or homeowner, the communities where we spend our lives strongly affect our daily enjoyment of life. The appearance of these communities is a strong component of this satisfaction. Concerns about the physical appearance of neighborhoods and suburbs often arise most publicly in the context of wealthy homeowners’ initiatives and complaints, yet this should not be the case: communities of all incomes care, to varying degrees, about the history of a place as embodied in its buildings, its affordability, and the human interactions that the place encourages through its physical appearance and layout. Artists need studios, children need places to play, and everyone needs a safe street on which to walk and converse—one not bordered by the broken windows of boarded-up buildings. Yet stoops, porches, yards, or old corner groceries where residents interact are not built or preserved simply out of happenstance. In America, they are often the product of informal norms and formal rules, both public and private, that govern the community aesthetic.

The formal rules that shape the places where we spend our lives are (in their ideal form) a grand democratic compromise of individual preferences for aesthetic. As Lee Fennell’s work has most meaningfully observed, these rules represent some collective agreement that encompasses various broadly defined physical goals for a place1—whether gardens and children’s play sets are allowed, whether trees shade the streets, and whether old bungalows may be torn down, for example. An individual moving to the community may like play sets and old buildings but despise the look of rows of string beans and tomatoes; in moving to the community, which she must typically share with many other people, she decides that the rules sufficiently match her general preferences for aesthetic and thus accepts the package of rules. Her neighbor, in turn, may strongly prefer new homes but enjoys the sunlight that flows to his garden over the roof of the squat old bungalow. He, too, accepts all of the rules, and all of the other residents, in turn, contribute their likes and dislikes to a neatly bundled blend of preferences.

The grand compromise to which individuals have ceded certain strong preferences in the interest of reaching a form of collective aesthetic does not always reach ideal heights, however. The concerns arise on both substantive and procedural fronts. In general, American communities have been moving toward greater quantities of rules that contain increasingly detailed aesthetic strictures. At first, the most detailed rules governing aesthetic were typically found in private communities, where nearly one in five Americans now live. These communities are governed by a general set of zoning rules and a private homeowners’ association that administers covenants, conditions, and restrictions, and they tend to be most prevalent in the suburbs. By now, many Americans have likely heard stories about the covenants within these private communities, which may require grass to be one and one-half inches tall, for example, or houses to be beige. Yet these exact types of restrictions now exist in the “public” realm, where city governments implement zoning overlays—which apply in addition to the general zoning code—to govern the aesthetic of individual neighborhoods. The overlays are either written and voted upon by the residents of the neighborhood to which the overlay will apply and approved by a city council or similar local legislative body, or introduced and approved solely by this local legislative body. The rules look substantively like covenants in their level of detail and therefore differ from the traditional zoning rules that were limited to set backs, basic building heights, and similar generalized requirements that encourage compatible living and working. They also differ from traditional zoning because they apply to specific neighborhoods or even to several city blocks: often, they preserve unique features of a neighborhood that do not exist elsewhere within the municipality.

Historic districts are a core example of detailed aesthetic rules within overlays that are applied through public codes, and they have been prevalent since the 1960s. Yet recently, municipal governments have expanded the concept of historic preservation overlays to aesthetic features entirely unrelated to the age of buildings. Many of the largest cities within the United States, for example, now allow for the implementation of “neighborhood conservation overlays,” which preserve everything from small bungalows to porches on homes. And many of these local legislative developments are recent: Dallas, for example, implemented a neighborhood preservation overlay tool in 2005, and Philadelphia designated its first protected neighborhood under the overlay tool in 2006.  Private, covenant-type rules have thus moved to the public realm.  In certain downtown neighborhoods, fences must be constructed from a short list of allowed materials, houses must be in earth tones, holiday decorations may not be displayed for more than forty-five days, and garages may only be placed at the back of a building.

These rules are important because they allow residents to formally define collective preferences for an aesthetic, and this tool is essential now that many Americans live in close quarters. Neighbors’ physical uses of property directly affect others’ enjoyment of property, and private covenants are difficult to implement in the public context. The expansion of detailed rules to the public realm thus offers new options for formalizing aesthetic compromises.

Substantively and procedurally, however, some of these rules may be problematic. On the substantive side, none of the rules tend to rise to the level of a due process or takings violation under the Constitution. Yet there is something about the content of some types of rules, particularly when the rules are applied through a public code, that seems to nag at people. More scholarly thought is needed to pinpoint the exact source of this concern, but it may relate to a belief that some of the rules intrude into a core zone of privacy that is not constitutionally defined but arises from unique, local, and ingrained expectations and norms. Or perhaps there is a general understanding that public rules should somehow incorporate “public” values, however those might be defined—for example, values that may be shared by more people than the residents themselves, such as the preservation of a home associated with an important national historic figure. Finally, we might be concerned with rules that tend to impose affirmative burdens upon individuals who cannot afford to shoulder such burdens—such as a requirement that a fence be constructed of expensive cedar wood.

Even for those aesthetic rules that seem relatively benign on the substantive front, there are universal procedural concerns, both in their private and public forms, that should be addressed. A requirement that one paint a home in earth tones, for example, may not fall within any of the above-mentioned categories of concern but could still be problematic for procedural reasons. As a metric for “problematic,” I investigate the extent to which the rules as written and implemented are likely to match individual preferences. On this simple yardstick, the question is whether the individuals within a community are generally satisfied with the rules—whether an acceptable collective compromise of individual preferences has been struck. If the procedures are wrong, I worry that this collective compromise will not emerge. The procedural concerns arise at three levels: individuals’ ability to influence the content of rules when they are written, individuals’ awareness of rules (the familiar notice concern), and the application of rules over time.

At the rule writing stage, individuals may not have adequate influence on the content of the rules in either private or public communities. From Tiebout’s perspective, developers of private communities who write covenants and municipal governments that enact zoning codes will offer different rule packages in response to residents’ physical moves.2 In indirect terms, an individual’s move to a community is a vote in favor of the rules. But Paula Franzese, Lee Fennell, and others have pointed out that these moves are not always perfectly directed, particularly in the private context.3 Developers, rather than offering a variety of packages, may simply copy boilerplate covenant language from previously developed communities. In public communities, unlike private ones, residents at least have some direct voice in the content of rules being applied to their community. Whereas a developer writes rules and residents later move to the rules in the private context, public overlays are placed upon existing residents. These residents have an opportunity to strenuously object at city council, but they might still be out-voted, as occurs with any other form of majority rule. In this case, rules may be imposed upon individuals who are thoroughly unhappy with the collective compromise.

Once rules have been written, public and private communities are on a level playing field. Both rules and residents are firmly in place, and the final two procedural concerns emerge: whether residents moving to a community are informed of the rules, and whether the rules are adequately moldable over time as various individual, and thus collective, preferences change. The notice concern is a familiar one, but it must be considered in the relatively new context of public rules that contain covenant-type text. Small notice protections attach to private covenants through common law doctrines like touch and concern and horizontal privity, although these protections have weakened in the American context. Recording requirements help, as do several states’ requirements for formal disclosure of covenants prior to a closing. But even in private communities with these protections, some residents don’t notice the rules; this means that in the public context, where covenant-type rules are applied without notice protections, there might be even more notice problems. A title search won’t always bring up detailed zoning overlay rules, and it is doubtful that incoming residents read through several hundred pages of code before closing. Uninformed entrants to the community may become unhappy residents: after purchasing a home or finalizing a lease, they may discover that they strongly dislike some of the aesthetic restrictions within the community. They had hoped that they could grow a garden to offset food costs, or build a play set for their children, for example, but they may not.

Over time, private and public aesthetic rules, if not administered so as to allow for sufficient residential voice, may also fail to maintain a collective compromise that decently melds and matches individual preferences. Some bylaws provide for the waiver of a covenant when a homeowners’ association fails to enforce it, and the common law occasionally even permits the abandonment of a covenant where enough intentional violations have occurred. This allows for modification of the rules over time, but this modification often occurs without adequate opportunities for input from other residents within the private community: some may prefer abandonment, while others may want to maintain the rules. Unless the bylaws require homeowners’ associations to provide for hearings or similar methods of residential input before the association’s architectural board allows a homeowner to stray from a covenant, residents may have inadequate say in this decision and the many others that are made over time.  On the public side, violated rules remain on the books. They are only formally modified through a public rezoning process, which may be captured by a small, powerful group of self-interested homeowners or developers. Variances to individual zoning requirements, on the other hand, allow for a good deal of input from other members of the community as to whether or not a rule should be followed. Some believe, however, that boards of adjustment grant so many variances that the exception becomes the rule: those who wish to maintain the rules may find that their voices are drowned out in these circumstances.

Ultimately, many sets of public and private rules do not allow the individuals subject to the rules to have enough voice in the rule writing process, to be informed of the rules when moving to them, or to adequately influence the modification and retention of various rules over time. Where rules have substantive problems, better process will not fix the problem. But for the many rules that seem to be only mildly annoying to some residents yet important to the collective whole, better process could improve the rule package. One interesting procedural model from which to build is the relatively new “hybrid community,” which combines public and private rules and their associated processes. In a hybrid community, which is typically called a planned unit development or urban redevelopment, a public entity such as a city council initially writes the detailed aesthetic rules in an overlay that will govern a newly built community within the city. In turn, the city often requires the developer to write and record a set of private covenants, conditions, and restrictions, which also apply to the community. Although private communities in the suburbs operate under a similar structure, the general zoning rules in the suburbs tend to be a background concern. In urban hybrid communities, in contrast, both the public and private rules tend to be detailed, relatively comprehensive, and central to the governance of the community.

The existence of two distinct layers of rules introduces unique opportunities in the rule implementation, notice, and modification stages discussed above. Those residents who live within a city and think that they may want to move to the planned hybrid community can have a direct voice in the development of the public portion of the rules by voicing support and concerns at city council. Those residents within the city are also likely to have more notice of the rules because the city often advertises the community for its unique rule-based benefits, such as green buildings or pedestrian-friendly sidewalks. And finally, residents have two venues through which to influence the application of rules over time. To the extent that the private homeowners’ association is open to homeowner input regarding the enforcement of rules and whether or not they are waived, residents will have the same level of influence over rule modification and retention as they do in a private community. Yet they can also go before city council to support or object to a rezoning, or before a board of adjustment where they have a voice in the variance process. The same limitations and barriers that apply to rule modification in public and private communities do not disappear in a hybrid community, but the two venues provide an interesting thought experiment for better rule processes.

It is possible that the public and private components of the rules in hybrid communities could somehow be linked. The private bylaws within the community, for example, could require that a private homeowners’ association may not unilaterally waive a covenant without first obtaining approval from a small city board that administers the public rule set. Further, the public rules could generally prohibit modifications to covenants that would cause a conflict with the goals expressed within the public rule set. To address concerns that either set of rules would remain stagnant and would be too difficult to modify under this system, both sets could have a sunset provision, which would require the residents to reassess their preferences for rules every ten or fifteen years. The hybrid model could also offer creative options for addressing substantive concerns: a city council could provide a menu of substantively acceptable rules from which both the city writing the overlay and the developer writing the covenants could choose.

The hybrid model is not a full solution but is an interesting idea that should be considered further and that could serve as a model from which to borrow select components. In the meantime, local governments should recognize that property rules have gradually yet substantially changed to become, in many cases, comprehensive manuals for community aesthetics. These rules are important because they allow people to govern the places that matter. Yet the content of some rules can be problematic and, more importantly for the purposes of this essay, the processes used to implement and apply the rules can prevent the rules from matching many residents’ preferences. Rules need to be clear yet dynamic, creative yet attuned to the collective needs, and apparent to those moving to the community. Rules matter, places matter, and solutions for making better places and rules must be more seriously contemplated.


Copyright © 2010 Georgetown Law Journal.

Hannah Wiseman is a Visiting Assistant Professor at the University of Texas Law School.

This Legal Workshop Editorial is based on the following Law Review Article: Hannah Wiseman, Public Communities, Private Rules 98 GEO. L.J. 697 (2010).

  1. See, e.g., Lee Anne Fennell, Contracting Communities, 2004 U. Ill. L. Rev. 829, 829–31 (2004).
  2. See Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416, 418 (1956).
  3. 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); Paula A. Franzese & Steven Siegel, Trust and Community: The Common Interest Community as Metaphor and Paradox, 72 Mo. L. Rev. 1111, 1125 (2007).

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