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Public Communities, Private Rules Public Communities, Private Rules HANNAH WISEMAN* 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’ height- ened 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 rela- tively 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 mainte- nance of desired rules, on rule-bound communities’ ability to meet consumer demands for a community aesthetic. It will conclude that rule-bound communi- ties should provide better visual notice of rules and should implement pro- cesses that allow for residents to better influence the initial content of rules and how rules are perpetuated or changed. TABLE OF CONTENTS INTRODUCTION .......................................... 699 I. THE CREATION OF RULE-BOUND COMMUNITIES:COVENANTS,PUBLIC OVERLAYS, AND HYBRIDS ............................... 707 * Visiting Assistant Professor, University of Texas School of Law. © 2010, Hannah Wiseman. I offer my sincere thanks to Lynn Baker, Jane Cohen, John Dzienkowski, Bob Ellickson, Lee Fennell, Nicole Garnett, Dan Rodriguez, and Carol Rose for comments, as well as to the many members of the University of Texas law faculty who provided suggestions at my initial presentation of this paper. I also wish to specially thank Terry Martin for his visual notice suggestion for sublocally zoned neighbor- hoods and Lee Fennell for her comment about notice through real estate websites. Finally, many thanks to my husband, Sam Wiseman. I conducted all telephone interviews cited within this article as part of a survey approved by the University of Texas Institutional Review Board, IRB Approval No. 2008-11-0037. All participants’ identities remain anonymous. 697 698THE GEORGETOWN LAW JOURNAL [Vol. 98:697 A. PRIVATE COVENANTED SUBDIVISIONS .................... 710 B. PUBLIC OVERLAY COMMUNITIES ....................... 714 C. PUBLIC-PRIVATE HYBRID COMMUNITIES .................. 721 II. WHY RULES? CHOICE,CONFUSION, AND POLITICS .............. 726 A. COMMUNITY BY CHOICE: A PREFERENCE FOR A COMMUNITY TO CALL ONE’S OWN ................................. 726 B. COMMUNITY BY MISTAKE: RULE BLINDNESS ................ 732 C. COMMUNITY BY INCENTIVE: ECONOMIC BENEFITS FOR GOVERNMENTS AND DEVELOPERS ...................... 734 III. MEETING EXPECTATIONS? PROBLEMS IN THE VINDICATION OF CONSUMER PREFERENCES ............................... 737 A. RULE FORMATION AND IMPLEMENTATION ................. 738 1. Private Covenanted Communities: Indirect Influence Through Consumer Signals ..................... 739 2. Overlay Communities: “Democratic” Processes with Retroactivity Concerns ......................... 740 3. Hybrid Communities: Voice for Interested Parties and Broader Consumer Signals ...................... 742 B. NOTICE: MATCHING COMMUNITY GOODS WITH PREFERENCES .... 743 1. Private Covenanted Communities: Strong Theoretical Notice and (Some) Actual Notice ................. 744 2. Overlay Communities: A Failure of Notice .......... 749 3. Hybrid Communities: Notice Through Heuristics and City Advertising ............................. 750 C. MODIFICATION AND ENFORCEMENT: CHANGES TO RULES IN THE NEAR AND FAR FUTURE ............................. 751 1. Private Covenanted Communities: “Democratic” Processes Overshadowed by Discretionary Mechanisms for Modification and Enforcement ................. 752 2. Overlay Communities: Democratic Rule Modification Constrained by Problems of Governance Structure and Capture .................................... 756 3. Hybrid Communities: An Interaction Between Two Rule Sets ....................................... 758 2010]PUBLIC COMMUNITIES,PRIVATE RULES 699 IV. SOLUTIONS:PROVIDING BETTER NOTICE AND ENSURING A RULE DURABILITY-FLEXIBILITY BALANCE ........................ 759 A. RULE FORMATION AND IMPLEMENTATION IN EXISTING NEIGHBORHOODS: VOTING SAFEGUARDS .................. 760 B. NOTICE: PROVIDING VISUAL CUES OF RULES AND FORMAL NOTICE OF OVERLAYS .................................... 761 C. MODIFICATION AND ENFORCEMENT: CREATING SUBLOCAL INSTITUTIONS AND ENHANCING RESIDENTS’ INFLUENCE ........ 763 1. Private Covenanted and Hybrid Communities: Variance Hearings ................................... 763 2. Overlay Communities: Sublocal Enforcement ........ 764 3. All Rule-Bound Communities: Limited Rule Duration . 765 V. CONCLUSION ........................................ 766 INTRODUCTION The aesthetics and atmosphere of our neighborhoods and communities mat- ter. In addition to their ability to raise or lower property values, they affect the ways we think and interact with each other,1 how our children play,2 how we choose to travel,3 and even crime rates.4 They affect our psychology: a gutted, broken factory invokes different emotions than does a row of small, colorful, old townhouses or large, uniform, single family homes. None of these built environments—the “community aesthetic,”5 or the collective spaces, structures, 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); 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 family and for cultivating one’s homestead”). 3. 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.... [A]rchitecture that fails to express the presence of humans is unsatisfying to the pedestrian.”). 4. 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”). 5. 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 700THE GEORGETOWN LAW JOURNAL [Vol. 98:697 and uses created by the activities that occur on individual properties (what Lee Fennell has described as “premium ambience”6)—will invoke wholly predict- able emotions, moods, or longer-term levels of satisfaction. An artist may see a broken factory and envision a perfect studio. A resident of modest means may despise the large, expensive home next to her property. And those who prefer order and predictability may thrive in a row of identical homes. Although individuals’ preferences for various types of built environments are difficult to foresee, the fact that individuals will have a strong preference toward choosing and maintaining some influence over their built environment is a given.7 In America, this preference will only become stronger as our growing population, with increasingly limited elbow room,8 must share community space with others.9 This Article observes that a new regime has emerged to directly address this desire for a physically defined community. Rather than simply shopping for a package of public goods provided by a local government—a trend astutely identified by Charles Tiebout in 195610—individuals of a range of income levels11 may now seek out what Richard Briffault has called “sublocal”12 structures of goods and service provision, which exist at the neighborhood or 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. ILL.L.REV. 829, 843, 847 (2004). Many factors
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