Trouble in privatopia: residents check their rights at the gates.
Near Philadelphia, a homeowner paid a landscape architect to design and build a black fabric fence in his backyard to prevent his infant son from falling down a 400-foot slope at the rear edge of his lot. His homeowner association took him to court for violating a rule against fences. The owner fought back and won, saying, according to the Philadelphia Inquirer, "By God, when you have a 400-foot cliff, you need a fence."
These stories and many more like them are not just isolated neighborhood conflicts; they are examples of life at the cutting edge of a new civic culture. They represent business as usual in walled, private, urban and suburban enclaves called common-interest housing developments (CIDs). For some, CID living means having to fight to defend a semblance of privacy and personal freedom, while the few residents who enforce the rules enjoy a degree of personal power over their neighbors that the Constitution denies to public officials.
Over the last thirty years, an alternative to the city has risen to prominence in most rapidly growing areas. Since the early 1960s, large-scale "community builders" have constructed 150,000 common-interest housing developments, designed for hundreds or even hundreds of thousands of inhabitants.
CID housing is profitable because it allows builders to squeeze more people onto less land and makes housing a mass-produced commodity. Buyers and public officials are more likely to accept small individual lots, narrow streets, and higher density if the development contains open spaces and other facilities owned in common by all residents and maintained by a homeowner association.
Today, these developments house an estimated thirty million people, or almost one-eighth of the U.S. population. In many parts of the country, including much of the Sun Belt, nearly all new housing units are some form of CID.
The rapid spread of CID housing is the largest and most dramatic privatization of local government functions in American history. CID residents pay monthly assessments to a homeowner association that provides exclusive services. Within their gates and walls, CID dwellers are protected by their own private security guards. They drive on streets that are privately lit, cleaned, and maintained. Their swimming pools, gyms, parks, and golf courses are private. Many CIDs also have exclusive access to shopping centers and even their own schools.
City officials who grant building permits are tempted by this private infrastructure because it adds taxpayers at minimal public cost. However, this perspective may be shortsighted. With little notice or debate, CID housing has begun to undermine the basic assumptions of urban culture and establish a competing regime.
Millions of affluent homeowners are encouraged to secede from urban America, with its endless flux and ferment, its spontaneity and diversity and its unpredictable rewards and hazards. They are beckoned to a privatized, artificial, utopian environment I call "Privatopia," where master-planning, homogeneous populations, and private governments offer the affluent a chance to escape from urban reality.
But those who opt for the good life in Privatopia pay for their amenities in more ways than their monthly assessments. The price of a ticket to this Fantasyland includes a substantial loss of freedom and privacy. CID residents live under the rule of their corporate board of directors, an elected group of neighbors enforcing a set of restrictions created by the developer to ensure that his master plan will never be altered.
These private governments operate outside the constitutional limits that bind local authorities because CID activities are not "state action." Moreover, courts often accept the legal fiction that CID restrictions are private, voluntary arrangements among individuals. In truth, they are nonnegotiable boilerplate, drafted by the developer's lawyers and imposed on all residents.
In Rancho Bernardo, a large California development, there was a restriction stating that "no truck, camper, trailer, boat, or any kind or other form of recreational vehicle shall be parked" on the project. One of the residents bought a new pickup truck with a camper shell, which he used for personal transportation. The association took him to court to prevent him from parking it under his own carport and to recover $2,060 in fines it had assessed against him for this "violation." After losing in the trial court, the management company appealed, only to see the appellate court side with the resident and hold the company's action unreasonable.
Yet this sort of action does not seem unreasonable to many CID residents, particularly those who serve on boards of directors. They believe the restrictions are good for property values, and feel that losing some of your own freedom is a small price to pay for protection from the potential misdeeds of your neighbors. Richard Louv, in America II, quotes one Rancho Bernardo resident as saying, "Sure,they have some rules, like the one that regulates campers. But the community associations are here to protect our interests, not let the community deteriorate. That's not regulation; it's common sense. I don't know why anyone would look at it differently than I do, do you?"
To answer that question, consider these examples of CID activities, all reported in the press:
[paragraph] Some community associations have banned display of the American flag and political signs, prohibited distribution of newspapers, and barred political gatherings in the common areas.
[paragraph] In Ashland, Massachusetts, a Vietnam veteran was told that he could not fly the American flag on Flag Day. The board backed down only after he called the press and the story appeared on the front page of a local newspaper.
[paragraph] In Monroe, New Jersey, a home-owners association took a married couple to court because the wife, at age forty-five, was three years younger than the association's age-forty-eight minimum for residency. The association won in the trial court. The judge ordered the sixty-year-old husband to sell, rent the unit, or live without his wife.
[paragraph] In Fairbanks Ranch, an affluent CID in Southern California, behind six locked gates, there are forty-five private streets patrolled by private security officers who enforce a private speed limit. First-time speeders get a warning; the second offense brings a hearing before the board and a reprimand; a third offense means a $500 fine, and the car and driver are banned from the private streets for a month.
[paragraph] In Vista, California, a homeowner whose income dropped because of a lost job and a divorce temporarily fell behind in paying her monthly association dues. The association obtained a lien on her property for the $192.04 in dues, plus attorneys' fees and costs. She resumed paying the dues on time, but when she disputed the amount of fees, late charges, and costs (which eventually brought the lien to $857.13), the association served her with a foreclosure summons. In desperation, the homeowner got an advance on a credit card and paid the full amount, but said, "To think that for a few dollars, they can come in and take your house out from under you - I can't believe it."
[paragraph] In Fort Lauderdale, Florida, condominium managers ordered a couple to stop entering and leaving their unit through their back door, claiming that they were wearing an unsightly path in the lawn by taking a short cut to the parking lot. The couple retained an attorney, who filed a lawsuit seeking a court's permission for the couple to use their own back door.
[paragraph] In Boca Raton, Florida, an association took a homeowner to court for having a dog weighing more than thirty pounds, in violation of association rules. A court-ordered weighing ceremony was inconclusive, with the scales hovering around the thirty-pound mark. The association persisted with the suit nonetheless - willing to pay an attorney and use the courts to exclude a dog from the development for being even an ounce over the limit.
[paragraph] In Bucks County, Pennsylvania, a woman bought a twenty-two-room stone farmhouse in 1980. Six years later, a CID was completed next to her property and a homeowner association was formed. In 1988, a CID resident reviewed the plans for the development and discovered that the farmhouse was within the borders of the CID. The association began assessing the woman for membership dues and contended that she had to live by the association's rules. She refused, and the association sued her. A judge ordered her to pay $2,000 in fees and late charge& When she still refused to pay, the association obtained a lien on her house and scheduled a sheriff's sale at which it attempted to sell two of her cars and a lawn mower. When there were no takers, the association had to pay towing fees for the cars.
[paragraph] Near Philadelphia is a development of $225,000 homes begun in the late 1980s. A family bought one in 1989, and brought their sons' metal swing set with them. One year later, the association told them to take it down, even though there were as yet no written rules regarding swing sets. When the rules finally appeared, they prescribed that all swing sets must be made of wood. Why? "It has to do with what the overall community should look like," said an attorney for the association. The family then submitted a petition from three-fourths of the homeowners supporting their swing set, along with data from the Environmental Protection Agency warning against the danger to children (theirs were aged two and four) from the poisonous chemicals used in pressure-treated wood, such as that needed for outdoor swing sets. The association's response was to impose a daily fine of ten dollars until the set was removed, and to refuse offers to compromise, such as by painting the swing set in earth tones.
For those who live outside CIDs, in America's beleaguered cities, the rapid spread of CIDs threatens to transform urban culture in ways some find deeply disturbing. This "secession of the successful," as Robert Reich calls it, deprives urban America of a vast amount of human and economic resources. It promotes a two-class society of haves and have-nots, the former enjoying a privatized set of what were formerly public services, and the latter struggling to survive in cities faced with increasing responsibilities and shriveling revenues.
The city, Lewis Mumford tells us, is "a structure specially equipped to store and transmit the goods of civilization." Cities are dense concentrations of a society's population, wealth and power - assets which, for 6,000 years, have enabled cities to create, reflect, amplify, and communicate whatever a society has to offer the world.
Conservative scholar Charles Murray views CIDs as symbols of an emerging caste society in which the affluent, freed from dependency on public institutions, may come to regard cities as "an urban analog of the Indian reservation" - places of deprivation and dysfunction for which they feel no responsibility.
Urban theorist Mike Davis, in City of Quartz, paints the picture of a privatized Los Angeles, architecturally redesigned to physically separate the two classes and protect the rich from the rest. He saw in this separation the potential for "approaching Helter-Skelter," even before 1992 brought the most intense urban riot in American history.
CIDs are, in a sense, a privatized, master-planned version of the village-centered life that our species led for millennia, and that many romanticize today. For the rest of us, CIDs may speed the decline of cities as centers of cultural, political, and economic power. Cities may come to resemble the future Los Angeles of Blade Runner - desperate holding pens, struggling to provide mere physical security and unable to afford other social services to all.
Ebenezer Howard, the Nineteenth Century English utopian whose vision of a master-planned "Garden City" launched the CID idea, was explicit about his intentions: "London must die," he wrote, "and a new city rise on the ashes of the old."
It is time to ask whether corporate builders should be allowed to continue spreading CIDs across the country, guided only by the calculus of private profit, or whether we should have an open, public discussion of the consequences - before the metropolis becomes a necropolis.
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|Title Annotation:||common-interest housing developments|
|Date:||Oct 1, 1993|
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