The Urban Lawyer is the National Journal on State and Local Government Law published by the American Bar Association. The Fall 2006 issue (Volume 28, Number 4) of this publication included  an article by Steven Siegel entitled "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." Click here to view the article's Table of Contents.

ABA ABSTRACT

"This article examines the critical and insufficiently understood role that government plays in the widespread and ever-growing establishment of private residential communities in the United States, particularly in the high-growth Sunbelt states. The author argues 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, including such services as street maintenance, sewer service, water supply, drainage, curbside refuse collection, parks, and even traditional police patrols of public streets. This article aims to partly fill a gap in the literature and in the scholarly commentary.

Part I catalogs and assesses 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.

Part II traces the history of the 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.

Part III sets forth substantial evidence of the active and direct role played by local governments, through the exercise of their plenary regulation of new residential development, in the rise of the territorial community association as the standard template for new community development in the fastest growing areas of the United States.

In Part IV the focus of the inquiry shifts from the empirical to the normative. In particular, the author identifies the adverse effects of a municipal land use policy that effectuates the privatization of the operation and maintenance of traditionally municipal infrastructure by way of the de facto or de jure requirement that a subdivision developer establish a community association (to operate the infrastructure) as a condition of subdivision approval.

Part V explores 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.

If the public role in enabling private residential communities were to be more clearly delineated and analyzed (as this article seeks to do), then the groundwork can be laid for serious public discussion of the future of new community development in the United States and for a thorough and public assessment of what has been called 'the most significant privatization of local government responsibilities in recent times.'"