As first reported by the Cap Times, more than two-thirds of property owners in Madison’s Highlands neighborhood recently signed protective covenants to restrict how many homes can be built on their property and the minimum lot size. The unusual move, to counter zoning changes proposed in the city’s West Area Plan, raised questions even for City Attorney Mike Haas.
“When I read that article, I was curious myself about what governs if there’s a conflict between zoning ordinances and restrictive covenants,” says Haas.
Haas suggested this reporter talk with assistant city attorney Kate Smith, who handles zoning and planning issues. Smith says she also hasn’t seen the issue come up often in her work with the city: “Since I took over this practice area a few years ago, I haven’t had to deal with many restrictive covenant issues,” she says.
That’s in part because the agreements are between property owners who place additional restrictions on the future use of their property, and the city is not involved in enforcement. “You can think of them like contracts — the parties who ‘sign’ a contract are the only ones involved,” says Smith.
The covenants signed by the Highlands property owners spell out minimum lot size and what can be built on the property — these homeowners are not happy with the proposed zoning change in the West Area Plan that would allow, but not require, smaller lot sizes in the neighborhood.
But covenants can’t be used to expand what can be built on a property beyond what’s allowable by law.
“Covenants don’t really impact the city planning process,” says Smith. “Property owners are free to impose additional restrictions through covenants, but that does not change the underlying zoning. Since restrictive covenants are private party agreements, resolution is typically through civil litigation, and the city is not involved in that dispute.”
But due to the vociferous opposition from some area residents, the city is now making changes to its West Area Plan, including removing the proposed proactive rezoning of the Highlands neighborhood, a victory for covenant signers.
“Rather than being addressed proactively in this planning process, rezoning requests would be addressed if and when they are proposed,” the city said in a May 2 statement. “Proactive rezoning has only been incorporated into planning processes in the last few years, and the city is continuing to evaluate how much detail to include in area plans.”
A revised draft of the West Area Plan will be released May 10. After a series of additional public meetings, a final draft will go before city boards, committees, and commissions for final changes and approval.
[Editor’s note: This article was updated to reflect changes, announced on May 2, in the city's draft West Area Plan.]
