New Article on Green CC&Rs

Robert J. Aalberts and Darren A. Prum have posted an interesting new article on the use of CC&Rs to promote sustainable development.  Their article, Our Own Private Sustainable Community, features case studies of specific communities in Oregon and Maine that have written aggressive green building and other sustainability-focused provisions into their CC&Rs.  The last major section of the article describes some of the benefits and potential challenges of such an approach.  Here's the abstract:

Residential and commercial property owners have sought for centuries to develop and enrich their physical environment through private land use planning. In more recent decades, residential owners residing in community interest communities (CICs) have been particularly active in crafting an evolving array of deed restrictions contained in Covenants, Conditions and Restrictions (CC&Rs). CC&Rs, which are generally created by the CIC developer, are mutually binding and enforceable against all those who live or conduct business in self-selected residential subdivisions or commercial developments. Importantly, CC&Rs are monitored sometimes quite forcefully, under the watchful eye of an empowered planned development association.

Although the typical post World War II CC&Rs were often mundane, governing setbacks, parking and vehicular restrictions, architectural requirements, non-household animals, sight and smell nuisances, trash containment and landscaping and plants, more recent CC&Rs are venturing into new and generally uncharted waters by promoting environmental sustainability. More specifically, a growing number of CICs are establishing green building goals, such as those certified by the United States Green Building Council’s (USGBC) which maintains its now familiar Leadership in Energy and Environmental Design or LEED rating system. Initial attempts at promoting environmental sustainability ratings, even while opposed by some, have placed an emphasis on improved water usage and environmentally compatible landscaping, but are now expanding in ever greater directions, including architectural design requirements. This article evaluates some of the potential problems green developments likely will face in this emerging approach to private regulation through an extensive discussion of our two case studies.

The use of CC&Rs as a tool for promoting sustainable development is likely to continue to evolve in the coming years, so this article makes for a timely and thought-provoking read.

Troy Rule