Tuesday, June 1, 2010
Wiseman on Public Communities, Private Rules
Hannah J. Wiseman (Texas) has posted Public Communities, Private Rules, Georgetown Law Journal, Vol. 98, No. 3 (2010). The abstract:
As the American population grows, communities are seeking creative property tools to control individual land uses and create defined community aesthetics, or distinctive “built environments.” In the past, private covenants were the primary mechanism to address this sort of need. Public communities, however, have begun to implement covenant-type “private” rules through zoning overlays, which place unusually detailed restrictions on individual property uses and, in so doing, have created new forms of “rule-bound” communities. This Article will argue that all types of rule-bound communities are uniquely important because they respond to resident consumers’ heightened demand for a community aesthetic. It will also highlight their problems, however. Many community consumers are marginally familiar with private covenants and traditional zoning, but they are largely unaware of the relatively new zoning overlays used to form public rule-bound communities. Yet the rules in overlays are extensive, are applied to existing landowners, and are not easily modified to meet changing community needs over time. And covenants, despite offering a more traditional tool for aesthetic control, create their own problems of incomplete consumer notice and barriers to effective modification. This Article will analyze the impact of these problems, as well as a lack of responsiveness to ongoing consumer demands for the maintenance of desired rules, on rule-bound communities’ ability to meet consumer demands for a community aesthetic. It will conclude that rule-bound communities should provide better visual notice of rules and should implement processes that allow for residents to better influence the initial content of rules and how rules are perpetuated or changed.