Private Covenants Still Restrict Development

Private Covenants Still Restrict Development

It’s tempting to call Berkeley, California, the Mecca of NIMBYism, but the point of Mecca was to bring people in, while Berkeleyans are famous for fighting tooth and nail to keep out new developments.

Most of these fights are over specific apartment buildings or other housing projects, but the most recent battle takes the form of a town-gown conflict between UC Berkeley and local residents. What is the university building to ruffle local residents’ feathers? A volleyball court. Writes Kate Darby Rauch of Berkeleyside:

The Clark Kerr Campus at 2601 Warring St. — home to student housing, shared UC-community recreational facilities, and university meeting space — currently has two beach volleyball courts. The new plan is to replace these with four new courts, a locker-bathroom-storage facility, updated lighting, and a grass spectator area…

But many neighbors of Clark Kerr are calling foul of the plan, saying it violates a set of agreements or covenants on use and development of the 50-acre site, which was transferred to UC from the state in 1982.

The conflict involves a familiar list of NIMBY complaints related to declining quality of life or property values, but the legal status of Berkeley’s ability to develop adds an interesting twist.

A covenant, though not necessarily a replacement for more traditional land-use and zoning codes, is a legal arrangement between residents of a given neighborhood that sets rules for what types of developments are or aren’t allowed there. Unlike with regulations, the resolution of any dispute is a legal matter to be settled among covenant members.

Covenants can be a more efficient alternative to regulation, but that depends entirely on the character of the regulations and covenant. In the case of Berkeley, irate residents (who also seem to have an ax to grind due to nonspecific complaints about previous violations of the covenant) are, “waiting to see how much backing [they’re] going to get from the surrounding community.”

“They break [the covenants] knowing they break them and saying, ‘Let the neighbors come after us,’” said one resident, “knowing that coming after them is going to take money for lawyers, and they have more money than we do.” Without going into the complexities of the covenant in question, this quality of requiring a development critic to be motivated enough to pay for a lawyer does seem to be one edge covenants have over more traditional regulations, all else being equal.

It’s easy for NIMBYs to get together and testify at a local zoning board meeting (giving them an outsized influence on policy), but the burden of a lawsuit imposes some barrier to restricting development that may deter antidevelopment forces from taking action.

Lest you get too depressed, there’s at least one resident who’s excited for the new development. “I have a 6-year-old daughter who loves Cal women’s athletics and it would be great just to be able to walk up the hill to have a terrific sporting experience with her,” said Patrick Kennedy, a resident of the neighborhood. “I understand that there are covenants in place with the neighborhood groups but I can certainly understand Cal wanting to put this scarce resource [available space] to work. Awesome to see investment in women’s athletics after so much has been spent [on] the Memorial Stadium project.”

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By |2018-09-27T07:19:29-07:00September 27th, 2018|Blog, Land Use Regulation|