Defenders of exclusionary zoning argue that if that institution is eliminated, neighborhoods will be overrun with multi-family housing. Quiet neighborhoods where children can play in the front yard will be transformed with increased traffic, denser housing, and a myriad of other ills. Zoning, they claim, is necessary to have the kind of neighborhood that they desire. However, there is a non-coercive way to “protect” neighborhoods–deed restrictions.
It is understandable that individuals may not want to live near apartment buildings, condominiums, and other multi-family housing. But this can be accomplished without the coercive measures that are an inherent part of zoning. Non-coercive means can be used to create and protect neighborhoods. Indeed, these means are used throughout the country today. Yesterday, we examined nuisance laws. In this post, we will examine deed restrictions.
Deed restrictions, sometimes called covenants, are a contractual agreement between property owners to limit how they use their land. Covenants are widely used around the country and are often put in place by a developer when a neighborhood is first developed. A homeowners’ association (HOA) is typically formed to enforce the agreement.
Deed restrictions can prohibit or require nearly any aspect of the property’s use. They might prohibit commercial activities, require a home of a minimum size, allow a limited number of exterior paint colors, or a myriad of other details. They might mandate single-family homes, or allow accessory dwelling units, duplexes, or other types of housing.
While the provisions of deed restrictions often appear similar to those of zoning, there is a crucial difference. Zoning is coercive and mandatory. Deed restrictions are contractual and voluntary. If an individual doesn’t like the restrictions in one neighborhood, he can move to a neighborhood with restrictions more to his liking, or no restrictions at all. Certainly, if he doesn’t like the provisions of a municipality’s zoning laws, he can move to another city. But this might mean that he must live far from his job, family, or the area where he wants to live.
Most deed restrictions include provisions for amending or changing the restrictions. These usually require a vote of property owners. Zoning also allows for amendments and changes, but these must be approved by zoning officials. When zoning changes are proposed, public hearings are held and non-property owners are allowed to voice their objections to how others want to use their property. Deed restrictions limit the discussion of changes to those who own property in the neighborhood; zoning invites anyone with an agenda to make demands.
As mentioned above, deed restrictions are typically put in place by the developer. However, if single-family zoning were eliminated, property owners could still use deed restrictions to create the type of neighborhood they want.
Because deed restrictions are voluntary, property owners can unilaterally place restrictions on their land. Each owner would be free to choose whether to place restrictions, as well as what types of restrictions. A neighborhood could develop a standard set of restrictions and allow each property owner to accept, reject, or modify those restrictions as they apply to his land.
It is unlikely that all property owners will elect to place restrictions on their land, but this doesn’t detract from the usefulness of deed restrictions in the absence of zoning. For example, if half of the property owners agreed to restrict their land to single-family homes, it would be difficult for a developer to assemble a parcel large enough for a big apartment complex.
But let us assume a “worse-case” scenario in which no property owners choose to impose restrictions on their land. If this occurred, then it is obvious that they aren’t concerned about changing land uses. Each property owner would be free to act on his own evaluation of the situation.
For neighborhoods that don’t currently have deed restrictions, eliminating zoning will pose certain challenges. Absent deed restrictions, developers could buy large parcels of land and rapidly change the neighborhood. But property owners would have choices. They could place restrictions on their land. They could refuse to sell to the developer. Zoning eliminates such choices.