Public Actors, Private Law: Local Governments’ Use of Covenants to Regulate Land Use

Abstract

Though covenants are usually considered the private sector’s alternative to zoning, governments also use covenants to control land use. Governments choose between zoning and covenants, and this choice illuminates the legal differences between the two tools. Covenants and zoning are not distinguished by the substantive restrictions each tool can impose on land use. Rather, a critical distinction between the two is that governments use the customizability of covenants, as tools of private law, to limit citizen enforcement of the covenants’ land use provisions. Zoning, by contrast, allows for citizen enforcement. Zoning also requires greater public participation and involves different amendment procedures.

Keywords: Land Use, Property, Covenants, Zoning, Citizen Suits