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Abstract

It is a commonplace to note that with an ever-increasing birth rate and decreasing death rate, as well as concomitant increases in demand for food, fiber, mineral resources, and space, effective land use control is a most important problem in our society. The problem is exacerbated by accompanying shifts in population concentrations—first from rural to urban and then from urban to suburban communities. Under our system these problems are handled at least partly (but not wholly) by resort to legal devices. The law has developed three categories of such devices for land use control: (1) those arrived at by consensual arrangements of the landowners, the covenant and the related equitable servitude; (2) those arising from common law doctrines of private liability, the nuisance; and (3) those arising from direct governmental regulatory controls over land use, the zoning and allied laws. The rules of law relating to the first two categories are the result of the evolution of hundreds of years of case controversy and decision. Zoning and allied laws are a more recent development and in a short amount of time have become an almost universally utilized vehicle for handling municipal land use problems. Occasionally over the years there have been collisions between the different devices. In such cases, there are obviously involved clashes between private land use arrangements and the public will as expressed by the city or state. Such collisions pose most serious problems in constitutional and statutory interpretation and judge-made law formulation. Should there be a rule superimposing public will over private arrangement? What factors should the court consider in determining which device and under what limitations that device shall prevail? In this article, an endeavor is made to explore one highly litigated set of these conflicts—that between restrictive covenants and zoning ordinances. First, the present governing law is examined. Then an attempt is made to formulate some general principles which should govern adjudications in the area.

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