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Tuesday, December 17th, 2013

How Homeowners Associations Stifle Expression and Sustainability by Kaid Benfield

[ Kaid Benfield is Director of Sustainable Communities for the Natural Resources Defense Council who blogs at their Switchboard site as well. I've been meaning to repost this piece in which he examines the barriers created by homeowners associations for quite some time. I'm glad to finally be able to share it with you - Aaron. ]

Eagle Pointe Homeowners Association (by: newokadoll, creative commons)

In the 1980s, I lived in a small DC condominium complex in the highly walkable Adams-Morgan neighborhood.  I was one of 14 unit owners.  Another was a fairly well-known Russian writer who had defected; the Cold War was still happening then, if not for much longer.  Alex (as I’ll call him) was a great, friendly guy, and really more a fan of American culture than a critic obsessed with Soviet politics.

I was one of the first to buy into the newly rehabbed complex; Alex was in the second group that began to fill the place out.  A couple of us tried to recruit him to join the condo board.  I’ll always treasure his bemused response:  “Hey, I didn’t leave one communist system just to join another.”

There were about 50,000 homeowners associations – including those in multifamily buildings like ours – in the US at the time.  Today there are 323,600, presiding over the homes and neighborhoods of an astounding 63.4 million Americans, Sacramento (by: beancounter/Pam, creative commons)according to data published by the Community Associations Institute.  Basically, that means in something approaching 20 percent of American homes, you literally cannot live there unless you agree by the terms of your ownership documents to submit to the rules of the governing associations.

I use the word “governing” deliberately, because that is very much what HOAs do (and what my condo board did, when I lived in Adams-Morgan).  For example, they have taxing power, setting mandatory dues that if not paid can result in the placement of a lien on your property or even foreclosure; they have regulatory authority, setting rules for everything from when you can take out the trash to what color and materials you use in your window treatments to what you can and cannot grow in your yard.  They have enforcement power, too, including the right to issue cease and desist orders and to impose financial penalties in the form of fines.  One legal observer has called the exercise of quasi-political powers by HOAs “one of the most significant privatizations of local government functions in history,” pointing out how quickly some of them move to foreclose on private homes because of dues underpayment.

In a lot of places – probably in most – it’s a sort of government-among-friends, where rules are applied and interpreted with good faith and generosity, where neighbors cooperate on upkeep, and where buildings and communities look better and function better because of it.  That’s certainly the way it was in the condo where I lived for a decade.

Olde Belhaven, Alexandria, VA (via Google Earth)

But, in others, homeowners’ associations appear to have more in common with the Soviets than just a communal process.  Writing in The Washington Post, Justin Jouvenal recently reported on a knock-down, drag-out fight over a simple political yard sign placed by a couple on their property during the 2008 election season.  The association’s grievance, apparently, was that the “Obama for President” placard was four inches taller than the association’s covenants allowed.  The scene was a lovely, 44-unit townhouse community set around a pretty green square in Alexandria, Virginia, an inner suburb of DC.

Now, in my book, requiring that the neighbors cut their grass every so often isn’t so unreasonable.  But stifling political expression because of a piddly 4-inch, inherently temporary “violation” is.  In my lawyering days, I was involved in one and only one case before the US Supreme Court:  on behalf of the Justice Department, I wrote and filed a brief siding with three jurisdictions that had banned billboards from within their borders.  In deciding a case that began with a lawsuit brought by the billboard companies, the Court practically tied itself in knots trying to come to consensus.  The nine Justices wrote or joined in five separate opinions.  A plurality of four ruled that the two states and one city involved could ban commercial billboards but not political ones.  There was enough agreement among the other opinions that it amounted to a majority ruling on that point.

Olde Belhaven, Alexandria, VA (via Google Earth)

Now, there are lots of legal distinctions between public statutory law (the billboard case) and restrictions by “voluntary” associations (the neighborhood lawn sign issue).  But I still might have advised the homeowners’ association that there could be some risks when it came to rules restricting political expression and that they might want to consider backing off on such a minor, short-term infraction before they got hit with a lawsuit they might lose.  In fact, the couple that wanted to display the sign in their yard did sue the association; it took a while, but the couple prevailed and the association lost.  And, for good measure, the court ordered the association to recompense the couple for their costs in asserting their legal rights.  The association, whose stubbornness had gotten them in way over their heads, ended up having to pay $400,000 (including its own legal fees) and went bankrupt.  The lovely green square that has served as the heart of the community is now for sale.

In some cases, HOA rules go directly against individuals who wish to follow green practices.  Two years ago, for example, a Florida woman was hit by mounting fines from her HOA simply for gardening.  On the web site Food Renegade, writer “KristenM” described the situation:

“Imagine growing a lush, organic garden full of fruit trees and raised beds featuring edible flowers and vegetables.  It’s beautiful.  And it’s in your backyard.  Your slice of heaven.  Your respite.  The place where you can get your hands dirty growing wholesome, nourishing foods for you and your family.

“One day you stroll out to your mailbox to find a letter from your HOA telling you your garden is in violation of HOA rules.  According to your deed restrictions, all fruit trees and edible plants should be grown inside a screened in patio.  You face $100/day fines for each day that you refuse to tear up your fruit trees and remove your raised beds.”

Essentially, vegetation was allowed to be planted unless it was grown for food.  And this is Florida, where there are fruit trees, in particular, all over the place.  I don’t know how that case eventually turned out, but association restrictions on gardening are not unusual

backyard vegetable garden (by: Nate Swart Photo, creative commons)

Another way that HOA rules can get in the way of sustainability is by banning outdoor clothes-drying.  The energy savings from the practice can be substantial:  electric dryers burn a full 6 percent of our home energy (second among appliances after refrigerators).  Many would also argue that the way that people have sun-dried their laundry for millennia also produces, in the right climate, a freshness that hot-air dryers can’t match.  The problem, of course, is that once most middle-class homes had acquired indoor electric dryers in the second half of the last century, visible clotheslines became a sign of poverty, something that the kinds of subdivisions that have HOAs want no part of.  Most HOA-controlled neighborhoods now ban clotheslines.

Fortunately, concerns about energy consumption and increased environmental awareness have produced a sort of backlash in the form of a “right to dry” movement.  As a result, six states – Florida, Colorado, Hawaii, Maine, Maryland, and Vermont – have passed laws rendering these bans void and unenforceable.  Jim Howland, who maintains a research project called Making Sustainability Legal, reports that another 13 states have solar access laws that appear to protect solar drying.

Speaking of which, you can imagine what most HOAs not bound by the laws in those 13 states think of solar panels.  On the Green blog published by The New York Times, Kate Galbraith detailed several disputes between green-minded homeowners and their associations in a 2009 story.  Galbraith added that, for solar installers, the roadblocks can be frustrating:  “John Berger, the chief executive of Standard Renewable Energy, a Houston-based firm that designs and installs solar systems for homes, said that the homeowner associations’ prohibitions had already cost him more than $1 million in business.”  That’s a shame, because there are lots of ways that solar panels can be incorporated into roof design while maintaining a high level of aesthetic appeal.

rear-facing solar panels on a single-family home in the Netherlands (by: EnvironmentBlog, creative commons)

I’ll discuss one more issue.  Consider the matter of non-edible landscaping, which HOAs guard with an iron fist to ensure uniformity.  In one example, a Florida homeowner got hit with a lawsuit for planting non-conforming vegetation that did not need irrigation, conserving water.  Kevin Spear reported the story four months ago in the Orlando Sentinel:

“A homeowner near Windermere who happens to work for Orange County’s environmental department has been sued by her neighborhood association for replacing her thirsty grass with a water-conserving landscape.

“Renee Parker’s plants attract butterflies, blossom regularly in multiple colors and have an assortment of shapes and heights. For a meandering border, she planted Argentine bahia, a grass that’s hardier than the water-craving, fertilizer-loving St. Augustine variety commonly growing in Florida yards.”

In theory, a 2009 Florida statute prohibits homeowners associations from interfering with residents who pursue “Florida-friendly” landscapes that save water.  But Spear’s article says that associations retain their authority “to approve or reject lawn and yard modifications,” and there’s ambiguity in what kinds of plants the law protects.

Meanwhile, in Arizona a homeowner was slapped with fines for planting a native habitat garden featuring Arizona wildflowers.  To the HOA, they were just “weeds,” prohibited by the rules.  A story posted on the web site of the Windstar Wildlife Institute says that the owner’s landscaping choices were lauded in the magazine Phoenix Home and Garden, which noted that the property “embraces the Sonoran Desert with a landscape rich in indigenous plants.”  The Windstar story reports that the case has drawn support from the Tucson Botanical Gardens and the Arizona Native Plant Society.  It was unsettled as of the time the story was written.

Pasco County, FL (by: Daniel Oines, creative commons)

Do these associations go too far?  Do a web search for the phrase “HOA tyranny” and you’ll get an astounding number of results.  Among the more extensive is a book-length bill of particulars called The HOA Primer, in which the writer details the horror stories at some length, saying that covenant enforcement “can become an absolute obsession.”  AlterNet has a very good story from 2007 (“The Property Cops”), written by Stan Cox, detailing how a variety of HOA and other community rules ban a range of green practices, with examples from across the country. 

I suspect – and certainly hope – that it is just a matter of time before HOAs catch up to emerging social values and become more tolerant of new practices to protect ecological values.  Maybe the biggest danger will become that the fixation with mandates will remain, but some of those mandates will become pro- rather than anti-environment.  That’s certainly better as to substance, but I’m less sure that it would be a great thing as to style.

Meanwhile, The HOA Primer cites real estate agent, consultant and author Joni Greenwalt (Homeowner Associations: A Nightmare or a Dream Come True?), for the point that the best HOA board members actually may be those who are hesitant to serve because they have full lives with work and families, but do so anyway out of a sense of duty.  They are less likely to fret about the smaller stuff or have time to go on frequent patrols searching for, say, nonconforming birdhouses.

Taking this thought into account, perhaps my Russian neighbor Alex would have made a great condo board member and we should have recruited him harder.  As I recall, he was too busy writing books and having a good time to oppress anybody.

This post originally appeared in The Switchboard on February 19, 2013. Reprinted with permission of the author.

Tuesday, October 18th, 2011

A Beginning Agenda for Making Smart Growth Legal by Kaid Benfield

[ Kaid Benfield is Director of Sustainable Communities for the Natural Resources Defense Council. He also writes what I consider the best blog out there by anyone who is institutionally affiliated. I'd encourage you to check it out. And more institutions who want to do social media well should learn from Kaid's example.

I'd like to preface this article with an editorial comment that I'll stress is mine, not Kaid's. I sometimes get grief for saying that we are drowning in regulation in this country and it is killing our ability to get things done. But I'm more and more seeing writings from even clear liberals who increasingly see that this regulation doesn't just stop bad stuff, it stops the good stuff too. Here Kaid explains how smart growth is actually illegal in most places. Reading the news we also hear about things like organic raw milk farms in Wisconsin getting shut down or how Occupy Charlotte protestors can't bring in port-a-potties (a basic sanitary measure) because it is against code. And of course try to build a transit line and see how long it takes to clear the review. Hopefully at some point we'll see some sort of bi-partisan consensus around dialing back at least the worst of this regulatory insanity - Aaron. ]

historic Annapolis (by: Kevin Wilson, creative commons license)

When then-governor Parris Glendening announced a key portion of what was to become Maryland’s path-breaking land use legislation in the 1990s, he stood in the historic district of Annapolis, where Maryland’s State House is located.  He told the crowd that the best parts of downtown Annapolis – a picturesque, highly walkable and much-loved collection of 17th- and 18th-century homes, apartments, shops, civic and church buildings, restaurants and small offices just above the city’s harbor – could not have been built in the late 20th century. 

Modern zoning and building codes wouldn’t allow it.  There are too many uses mixed together, insufficient setbacks from the street, not enough parking, stairways that don’t meet modern building codes, streets too narrow, and so on.  The implication was clear:  there is something very wrong with a system of laws that has deviated so far from our intrinsic instincts that it has, perhaps unwittingly but nevertheless effectively, outlawed the very things that have made Maryland’s state capital so popular with residents and visitors.

Maryland Ave, Annapolis (by: Mr T in DC, creative commons license)This blog is replete with great examples of more recent development that attempts to recapture some of the attributes that make historic districts so loved.  We are pleased to celebrate these new examples of sustainability, places that make walking a viable option for going about one’s life, that shrink the footprint of development, conserving land and infrastructure.

But, in almost every case, those exemplary new developments have required special exceptions from the building and zoning codes in effect in their municipalities.  This has basically made sustainability much harder to build than sprawl, when our regulatory system should be doing just the opposite.

This brings me to a simple set of recommendations by “a roundtable of interested parties” constituted in Seattle.  My friend Chuck Wolfe is a member of that roundtable, and he has very helpfully summarized the group’s key findings in a post on the Seattle blog Crosscut.  (Chuck also writes his own blog MyUrbanist, and we are both writers in The Sustainable Cities Collective.)  The recommendations are not radical but, rather, all grounded in pragmatism and, if I may say so, common sense:

Encourage home entrepreneurship.  Home-based businesses should be freely allowed so long as impacts to surrounding properties are minimized.  I have to note that I am writing this blog from my home right now (it’s 10.30pm); I have no idea whether that is technically legal or not.  The large government agency where my wife works has such an aggressive telecommuting program that some 80 percent of agency employees now work from their residences most of the time.  living above the store in Kentlands, MD (by: EPA Smart Growth)It’s time for our laws to catch up with reality, save the transportation energy and congestion associated with commuting, and allow people to work and serve customers from home again, as we did routinely for centuries.

Concentrate street-level commercial uses in pedestrian zones.  On this issue, Seattle’s current law is actually more progressive than most:  street-level commercial uses have been required for some time in larger new buildings.  The roundtable, working from experience, is recommending that the requirement become more nuanced and be made applicable primarily to buildings in designated pedestrian zones, not uniformly applied outside of those areas as well. 

Enhance the flexibility of parking requirements.  “As Seattle’s transit service improves, demand for on-site parking will shrink. This recommendation will allow the market to determine how much parking should be provided in locations within one quarter mile of good transit service (generally, those with at least 15 minute headways). It eliminates minimum parking requirements for residential or non-residential uses in such locations.”  Personally, I might apply a nuanced approach here as well, with perhaps some limited minimum requirements for larger buildings that abut single-family residential areas.  There doesn’t need to be an all-or-nothing approach, and we want neighbors to feel comfortable with nearby intensification where it makes sense.

corner store in Georgetown, DC (by: M.V. Jantzen, creative commons license)Allow small commercial uses in multifamily zones.  This should be a no-brainer; bring back the corner store, please.  The recommendation in Seattle is to allow small corner stores in two- and three-story multifamily zones in certain designated districts; the city already allows them in “mid-rise” and high-rise districts. 

Expand options for accessory dwelling units.  I believe accessory units – garage and basement apartments, “granny flats” and the like – should be allowed most everywhere.  They allow a bit more density with very little change to the look and feel of a neighborhood.  In this case, the roundtable is recommending expansion of Seattle’s excellent “backyard cottages” concept.

Allow mobile food vending and similar temporary uses.  Another no-brainer.  Food trucks and farmers’ markets are springing up everywhere in America.  And it’s not exactly a radical idea: ever hear of the Good Humor man?  But it some places it is restricted, common sense notwithstanding.  (Reminds me of the recent local case in suburban DC where a kids’ lemonade stand set up outside the US Open Golf Tournament was shut down by the authorities.  Jeez.)  food truck in Miami (by: muy yum/Larry, creative commons license)In Seattle, the roundtable would allow vending carts on private property where other commercial uses are permitted and extend the permitted days and hours of farmers markets.  Sounds like a baby step to me, but at least it’s in the right direction..

Change state environmental law to obviate redundant review of projects.  “The Roundtable recommended that the city take advantage of opportunities to streamline and combine SEPA review with other aspects of regulatory review for proposed residential and mixed-use projects in designated growth centers, such as urban centers and light rail station areas.”  This one may be controversial with some of my environmental colleagues and partners, but the angel can be in the details – if, for example, the impacts of area plans have been reviewed, review of the same issues may not need to be repeated for projects that conform to those plans, especially in places where we have determined that growth should occur and where mitigation is built into the project.  I don’t pretend to know the specifics of applicable city and state law in Seattle and how the recommendations would modify it, but I do think some degree of relaxation can be appropriate in designated growth centers, when the proposed project conforms to the desired types of growth as articulated in earlier legal documents.

As noted earlier in the post, these are hardly radical proposals.  As my title suggests, they represent “beginning” steps.  The real stunner is that our laws have become so contorted and restrictive that they are needed.  The roundtable has done the citizens of Seattle a service by undertaking their study and making the recommendations, and Chuck as done us all a favor by spreading the word.

Note: Hover over photos for image credits.

Editorial Note: For more information about what’s going on in Seattle, see:

Seattle Starts Making Sustainability Legal
Seattle Government Regulatory Reform

This post originally appeared in The Switchboard on July 27, 2011. Reprinted with permission of the author.

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