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Homeowners associations, and their functional counterparts such as condominium or cooperative owners’ associations, have undergone explosive growth in the past few decades. In 1965 there were only 500 such associations. The latest information from the Community Associations Institute (CAI), the trade group for homeowners associations, indicates there are more than 250,000 associations in the United States. Approximately 50 million people now live in developments governed by homeowners associations. This growth is accelerating, with an estimated four out of every five housing starts included in a homeowners association.

Several factors are driving this phenomenal growth. One is the changing housing preferences of older adults who often leave the homes where they raised their children to move to no-maintenance condominium developments in the south and southwest. This trend is only likely to accelerate as the baby boomer generation reaches retirement age.

Another factor: in our largest cities, cyclical weaknesses in residential rental markets have led to the large-scale conversion of apartment buildings to condominium or cooperative ownership. Finally, developers have found that they enjoy a competitive advantage by constructing new subdivisions with common recreational amenities and provision of some services. In each instance, these forms of development will require some type of homeowners association to manage the common amenities or deal with maintenance and service issues.

In addition to providing amenities and/or services, homeowners associations function as a “private” government, setting rules and policies that govern many of the same concerns as zoning. For example, association rules will normally apply to: parking and storage of vehicles; the display of signs and flags; home occupations; accessory uses; fences; building additions; solar energy and telecommunications devices; and many other items.

Indeed, in the absence of state legislation to the contrary, an association’s rules will take precedence over less restrictive land use regulations because the residents of the association have agreed contractually to be bound by those rules. Thus, a homeowners association is able to restrict, or even prohibit, uses of property that would be allowed under local land use regulations. This article explores whether the potential clash between local land use regulations and homeowners association rules should be a matter of concern for planning commissions and, if so, what, if anything, commissioners might do about it. …

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