RESM 450 TEST 2 lecture 9

WV "Fundamental Rule" on private subdivisions

Intention of parties govern " 'The fundamental rule in construing covenants and restrictive agreements is that the intention of the parties governs. That intention is gathered from the entire instrument by which the restriction is created, the surrounding circumstances and the objects which the covenant is designed to accomplish.' Wallace v. St. Clair, 147 W. Va. 377, 390, 127 S.E.2d 742, 751 (1962)."

Importance of Shelley v. Kraemer

Invalidation race-restrictive covenants • Removal of covenant requires court action • Can be done for reasons of illegality, unenforceability, non-enforcement, impracticality o Change in community character o Vagueness in regulation o Invalidation of racial/ethnic restrictive covenants Supreme Court rules in Shelley v. Kraemer, 334, U.S. 1 (1948) that courts could not enforce such covenants

Importance of Rhue v. Cheynne Homes

Private subdivisions upheld o Prevented non-conforming style house o Cheyenne Homes obtained injunction against Rhue to prevent 30-year-old Spanish style house being moved into a neighborhood, said no rules prevented it. o Cheyenne Homes claimed new buildings to be approved by an architectural control committee. (80% improved/new modern ranch/split level homes). o Court said when a restrictive covenant required committee approval for plans prior to building, such an arrangement will be upheld, provided committee does not unreasonably withhold its consent or refuses plans in an arbitrary and capricious manner.

WV required elements

o Setback requirements o Lot sizes o Streets o Sidewalks o Walkways o Parking o Easements o Rights-of-way o Drainage o Utilities o Infrastructure o Curbs o Gutters o Street lights o Fire hydrants o Storm water management o Water services o Wastewater facilities o Standards for flood prone or subsidence areas

Declaration language

private contract telling the "whys" and the "hows" WHEREAS, Declarant is the owner in fee simple of real property described on EXHIBIT "A" attached hereto and incorporated herein by reference in Indian River County, Florida (hereafter referred to as the "Property"); and WHEREAS, Declarant desires to subject said Property to the provisions of this Declaration and to create on the Property a residential community on all or part of the Property described in EXHIBIT "A"; and WHEREAS, Declarant desires to create a harmonious and attractive development on the Property; and in addition, Declarant desires to provide a flexible and reasonable method for the administration, operation, maintenance, and development of such Property. NOW THEREFORE, for valuable consideration, in hand paid and received, the receipt and sufficiency of which are hereby acknowledged, and for the purposes of protecting the value, attractiveness, and desirability of the Property of the Declarant hereby declares that all of said Property shall be held, sold, and conveyed subjects to the following easements, covenants, conditions, restrictions, and limitations, which shall run with the Property submitted to this Declaration and which shall be binding on all parties having any right, title or interest in the Property or any part hereof, their heirs, successors, successors-in-titles, and assigns, and which shall inure to the benefit of each Owner thereof, as hereinafter defined, and to the Declarant, as more particularly provided, hereunder.

Rationale for private subdivisions

trade off of security for certainty • Protect present and future property value • Guarantee adjacent construction not impair value • Provide access to amenities • Promote community aesthetics • Give up some choice, rights • Receive certainty, security • Provides framework that does not exist in law • Provides framework that would not exist in law

Typical declaration issues

• Access to property and common areas guaranteed • Property lease limits (12 month minimum) • Residential only (no garage sales, home office limited) • Parking rules (non-cars in garage, no street parking) • Landscaping, sheds must be approved • Signage restrictions (standards, approval required) (Huntington Place, Vero Beach, FL) • Pet restrictions (dogs, cats, birds only) • Screening requirements for machinery, garbage • Behavior standards, adult supervision for children • Hurricane season departure preparations • Fence and wall changes require approval • Basketball hoops, skate ramps, clotheslines prohibited • Speed limit set at 15 MPH (Huntington Place, Vero Beach, FL)

SUBDIVISION LEGAL ISSUES SUMMARY OF FINDINGS/RULINGS

• Cases where action prescribed in law and requirement not overly onerous generally upheld • Cases where proposed regulation has no basis in authorizing statute (law) or where proposed requirement seen as undue burden on property owner generally overturned/disallowed • Cases decided in state courts based upon individual state laws and state constitutions • Results have been surprisingly consistent • Constitutionality (federal level) not in question

Vested Right

• Creates a more extensive process for major subdivision creation and approval (WVC §8A-5-6) • Outlines appeals process (WVC §8A-5-10) • Creates vested property right for five years (WV Subdivision elements and common theme)

subdivisions description

• General Land Management Activity o Act of dividing land into parcels to develop o Also includes joining land into a single parcel • Subdivisions Found Virtually Everywhere o Housing developments (suburban, exurban) o Retail centers o Industrial parks • Traditional Approach to Regulation o Based on late 19th century ideas o Connection to police power o Emphasis on orderly development o Regulation of land characteristics - NOT USE • General Characteristics o Authorize division of land into lots and blocks o Require infrastructure improvement o Often include set-asides for public uses o Coordinated with other land use regulations • Unintended Consequences o Disjointedness Within community Between communities o Sameness to development

Importance of Windsor v. Whitney

• Held dedication of streets as a prerequisite to platting was not unconstitutional. • Related decision to other court cases on land use issues and exercise of police power over definition of taking • US Supreme Court never ruled on subdivisions separately but concepts found in many cases

Minor Subdivisions, Major Subdivisions

• Minor and major processes discussed (WVC §8A-4-2(a)(1)&(3)) o Size and scope between two defined locally o Minor usually limited to a "few" lots created (WV Subdivision elements and common theme)

PRIVATE SUBDIVISIONS

• Non-governmental rules & regulations placed on property to protect its value & characteristics • Include conveyances, covenants, and other restrictions placed on the deed • Done by the seller (developer) • Enforced by homeowners groups/associations o Committee action o Legal action (lawsuit) o NOT directly enforced by government

Elements, Theme

• Related to preparing (breaking up or sometimes combining) property for use and/or development • Powerful tool as it gives localities authority to set minimum standards for developments • Works with code section on plans and plats (WVC §8A-5) • Plan and plat review gives jurisdiction to Planning Commission (WVC §8A-5-1) • Describes minor subdivision as limited number and not adding infrastructure (WVC §8A-5-2) • Sets application process (WVC §8A-5-3) (WV Subdivision elements and common theme)

Plan and plat process

• Subdivision and Land Development Ordinance (SALDO) (WVC §8A-4) • Subdivision or Land Development Plan or Plat (WVC §8A-5) • Previous code focused on these review procedures rather than subdivision details (Repealed §8-24) (WV Subdivision elements and common theme)

Link to plan

• Subdivision and Land Development Ordinance (SALDO) modern form of subdivision ordinance • Linked to having or enacting plan (WVC §8A-4-1) o Plan already in place (original law) OR o Three years to enact a plan (as amended) (WV Subdivision elements and common theme)

SUBDIVISION LEGAL ISSUES CURRENT CALIFORNIA MAP FIGHTS

• Subdivisions Recorded Since Statehood • First Law in 1893: "Subdivision Map Act" o Dealt with drafting accurate map • Modern Law in 1929: "Subdivision Map Act" o Covered design and improvement of subdivisions • Gardner v. County of Sonoma 29 Cal. 4th 990 (2003) o Court stated maps recorded prior to 1893 do not create legal, developable lots for today's purposes o Hinted that maps recorded between 1893 and 1929 might not be valid unless a city or county somehow exercised discretion in approving the map. •Subsequent Cases Ruled Against Pre-1929 maps o No real discretion in approval process o Lack modern process ("design & improvement")

subdivisions definition

• US Dept. of Commerce, Advisory (1928) A Standard City Planning Enabling Act, Sec. 1 o "_______________" means the division of a lot, tract, or parcel of land into two ore more lots, plats, sites, or other divisions of land for the purpose, whether immediate or future, of sale or of building development. • WV Code §8A-1-2(cc) (2004) o "__________________ or partition" means division of a lot, tract or parcel of land into two or more lots, tracts or parcels of land, or the recombination of existing lots, tracts, or parcels.