The public role in establishing private residential communities: Towards a new formulation of local government land-use policies that eliminate the legal requirements to privatize new communities in the United States

In this article, I examine the critical and insufficiently understood role that government plays in the widespread and ever-growing establishment of private residential communities (also referred to as "community associations") in the United States, particularly in the high-growth Sunbelt states. I argue that local governments, on a broad scale and independent of market forces, effectively have required developers of new subdivisions to create community associations to operate and maintain the subdivision in lieu of the municipality providing traditionally municipal services to the subdivision. The evident purpose of this policy has been to minimize municipal outlays while maximizing the municipal tax base. Local governments have been able to achieve this purpose--with virtually unfettered discretion and an absence of judicial review--through a robust application of their traditional land use powers: i.e., the power to zone and the power to approve the establishment of new subdivisions.; My treatment of this subject is in five parts. In Part I, I catalog and assess the significant demographic, social and economic factors that have contributed to the phenomenon of the explosive growth in the number of private communities in the United States. The purpose of this treatment is to place these factors in context, and to lay the groundwork for the public policy analysis that follows. In Part II, I trace the history of the planned unit development (PUD) zoning concept, and how this concept evolved from a mechanism to interject greater design flexibility into the zoning approval of new subdivisions into a vehicle for municipal privatization decisions affecting traditionally public facilities and services. In Part III, I set forth substantial contemporary evidence of the existence of municipal requirements to privatize new communities (referred to as "public service exactions"). In Part IV, I identify the adverse effects of a municipal land-use policy that imposes public service exactions. In Part V, I explore potential judicial remedies as well as legislative policy recommendations aimed at reducing the future municipal imposition of public service exactions in new community development, as well as mitigating the effects of public service exactions in existing communities.