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Land use đź•Ť Can a local ordinance pre-empt restrictive covenants on properties within a jurisdiction?

UrbanUnPlanner

Cyburbian
Messages
47
Points
2
So, in my consideration of what a next-generation zoning code could look like, one of the things I have concluded is that it would need to replace the current "R-1" single-family-only zoning that makes up the bulk of residential neighborhoods with a more flexible standard that supports lower-density Missing Middle housing forms (duplexes/two-flats, street-interfaced townhomes/rowhouses, cottage courts, accessory units) as well as accessory commercial spaces (subject to performance criteria). To this end, I've been contemplating a "point" system to permit diversity of form by-right while keeping the density at "house scale"; however, in many (most?) existing areas, this sort of low-intensity, large-scale upzoning runs into a problem beyond the normal political opposition: restrictive covenants.

In particular, many existing single-family house-lots in auto-oriented suburban neighborhoods (and even some in older ones) had covenants placed upon them at subdivision-time that flatly forbid non-single-family-dwelling uses or further subdivision of property, and are difficult for individuals to lift on their own, often requiring individual suit and discretionary court intervention, or a supermajority vote of all property owners in a neighborhood via a HOA. Considering that these operate independently of zoning, yet can thwart the objectives of modern (form- and/or performance-based, at least in part) zoning schemes, there is some merit to pre-empting/prohibiting these covenant forms, both on new subdivisions and in the case of existing lots within the city limits.

However, this raises the question of "can a city even do that to begin with from a legal perspective?" Is this something that depends on the particulars of the property-law regime applicable to a jurisdiction, or is there some common/independent source of authority (at common law, or in overarching statutes and such in a major country) that could be employed by a city to enforce such a nullification of covenants restricting use and form of construction? (This is similar to how racially discriminatory covenants in the US were voided by federal Fair Housing legislation under Congress' express Fourteenth Amendment authority.) Or is this idea a non-starter from a legal standpoint?

NB #1: I know that this would probably be quite politically difficult, but I'm not terribly concerned about that, as this'd be part of a comprehensive planning and zoning effort for any jurisdiction who would be interested in the idea.

NB #2: It would be appreciated if answers specified what jurisdiction's property law governs them.
 

UrbanUnPlanner

Cyburbian
Messages
47
Points
2
Was doing some research into Vegas' zoning code for unrelated reasons and came across this ordinance of theirs:

CHAPTER 16.56 - AMERICAN FLAG PROVISIONS

16.56.010 - Enforceability.


Except as provided in Section 16.56.020 of this Chapter, any of the following that prohibits or restricts the display of the American flag is void and unenforceable:

(A) A covenant, condition or restriction contained in a legal instrument affecting an interest in real property; or
(B) Any rule or regulation of an owners' association that otherwise has the authority to regulate the use of real property.

16.56.020 - Applicability—Exemptions.

Section 16.56.010 does not apply to any covenant, condition, restriction, rule or regulation that, with respect to the display of the American flag, establishes:
(A) Reasonable placement and safety standards applicable to the display of the flag;
(B) A maximum number of flags that may be displayed on a parcel;
(C) A requirement that flags to be displayed be portable and removable; or
(D) In the case of residential property, a requirement that the height of any flag, when displayed, does not exceed the height of the residence.
which looks on its face like an expression of a more general preemptive power. However, upon further research, it turns out to be a consequence of NRS 111.238, which expressly prohibits covenants that prohibit lawful (as per 4 USC 1) display of the US flag:

NRS 111.238  Prohibition on display of flag of the United States on property.

1.  Except as otherwise provided in subsection 2, any covenant, condition or restriction contained in a deed, contract or other legal instrument which affects the transfer, sale or any other interest in real property that prohibits the owner of the property from engaging in the display of the flag of the United States on his or her property is void and unenforceable.
2.  The provisions of this section do not apply to the display of the flag of the United States for commercial advertising purposes.
3.  In any action commenced to enforce the provisions of this section, the prevailing party is entitled to recover reasonable attorney’s fees and costs.
4.  As used in this section, “display of the flag of the United States” means a flag of the United States that is:
(a) Made of cloth, fabric or paper;
(b) Displayed from a pole or staff or in a window; and
(c) Displayed in a manner that is consistent with 4 U.S.C. chapter 1.
The term does not include a depiction or emblem of the flag of the United States that is made of balloons, flora, lights, paint, paving materials, roofing, siding or any other similar building, decorative or landscaping component.
There are also statutes restricting covenants that purport to prohibit the installation of solar or wind energy systems, but apparently Nevada law provides no general facility a city can use to restrict the contents of real estate covenants...
 

B'lieve

Cyburbian
Messages
229
Points
9
Bump

So far I found Maryland's Real Property Code §3.112 that spells out a fairly simple process for voiding already forbidden "unlawful" restrictive covenants via paperwork filed with the clerk of the circuit court and a review by the county attorney, no other window for anyone else to interfere. Unfortunately, it only defines as unlawful covenenants that are racial/religious/national origin, and you can't use this simple process if you're part of a HOA (presumably there's a seperate process for that). Maryland Real Property Code Section 3-112

And from Baltimore City's Rules and Regulations for Land Subdivision:
"1.6 Conflicting Provisions These Subdivision Regulations do not in any way supersede or impair any existing or future laws, ordinances, private or public restrictions and covenants. If any condition or requirement imposed by a provision of these Subdivision Regulations is either more or less restrictive than a comparable condition or requirement imposed by any other provision of these Subdivision Regulations or of any other law, rule, or regulation of any kind, than the condition or requirement that is more restrictive governs."
Rules & Regulations for Land Subdivision (Baltimore City)

Also, in the 2021 General Assembly session (90 days, starting every January), Maryland passed a statewide law/code change that bans HOAs from forbidding food plants and native wildflowers in yards, and basically restraining the rules and enforcement powers HOAs can have regarding yards, after a case in Howard County where an old man with connections to his HOA board sued and harassed the couple next-door for three or four years over their wildflowers and vegetables, even vandalizing their property, and the HOA showed blatant favoritism and assistance for him. The couple got most of the neighborhood, local media, and their local legislator on their side.

I would have to dig deeper some other time and get back to you to be sure, but all of the above combined implies that in Maryland, at least, the state government has the controlling power here, and the ability to legally override/constrain covenants, while local jurisdications probably cannot.

Thanks for bringing this up! This issue could very well blow up to be a big deal in coming years, especially as the movement against SFH-only zoning gains steam.
 

UrbanUnPlanner

Cyburbian
Messages
47
Points
2
So far I found Maryland's Real Property Code §3.112 that spells out a fairly simple process for voiding already forbidden "unlawful" restrictive covenants via paperwork filed with the clerk of the circuit court and a review by the county attorney, no other window for anyone else to interfere. Unfortunately, it only defines as unlawful covenenants that are racial/religious/national origin, and you can't use this simple process if you're part of a HOA (presumably there's a seperate process for that).
Yeah, NRS 111 has a procedure for voiding unlawfully discriminatory covenants as well, and I'd expect that to be a reasonably commonplace thing, although not helpful when dealing with the more subtly pernicious covenants that originally prompted the question.

I would have to dig deeper some other time and get back to you to be sure, but all of the above combined implies that in Maryland, at least, the state government has the controlling power here, and the ability to legally override/constrain covenants, while local jurisdications probably cannot.
State governments have basically full control over how real estate functions in their borders within the bounds of Fair Housing and takings law, so their power to statutorily constrain covenants isn't a surprise to me. This does make me wonder if there are any court cases on-point here, though, akin to how use-based zoning was run through the Euclid v. Ambler wringer.

Thanks for bringing this up! This issue could very well blow up to be a big deal in coming years, especially as the movement against SFH-only zoning gains steam
Yeah -- come to think of it, could this be a concern for ADU ordinances, especially local ones? Has anyone been taken to court because they built a zoning-permitted ADU on a lot that is covenanted as single-family-residential only?
 
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