Covenants are a Sacred Cow, but they Should be Gone

This article was first published in the Santa Fe New Mexican, Building Santa Fe on June 3, 2021.

by Kim Shanahan

Virtually every politician loves to claim bold ideas. Most aren’t. But former mayoral candidate and current Public Regulations Commissioner Joseph Maestas certainly had one when he ran for mayor in 2018 and lost to Alan Webber.

I don’t know if it was the idea that led to the loss, but I know it was pretty darn bold and even more controversial. His idea? Eliminate all zoning regulations in Santa Fe.

The following term might have come from local affordable housing experts, or maybe it was someone else. But when I first heard the claim “zoning is inherently racist,” it came as an intellectual challenge. I had to be convinced. And then I was.

Maestas was both bold and prescient. Since 2018, more and more communities in America are taking hard looks at their zoning laws in the light of systemic exclusions they perpetuate. One single-family detached home per lot is bad enough, but when zoned so each lot must be at least an acre in size, the vast majority of Santa Feans are excluded. Not by race, but by income.

Maestas represented City Council District 2 when he ran for mayor. It’s the district with precincts inhabited by the oldest and wealthiest of any of the city’s four districts and the most living on 1-acre lot minimums. It’s where the mayor lives. But the tail of District 2 also captures the so-called Triangle District north of St. Michael’s Drive, a neighborhood with the highest density and poverty levels of any in the city. Some apartment complexes there are 30 dwelling units to the acre.

Some good rules help overcome underlying zoning restrictions with “by right” laws. Except for historic districts, every lot has a “by right” to have a second story. Every lot has a “by right” to have an accessory dwelling unit. Every lot has a “by right” to fence itself for privacy or security. Every lot has a “by right” to be rented for income.

Unfortunately “by right” is trumped by private and officially recorded “protective” (read restrictive) neighborhood covenants.

Covenant: Sounds sacred. A promise. A bond. A golden rule to promote harmony.

And often more classist and discriminatory than any zoning law could ever be written.

A landmark case in 1948, before a Supreme Court just beginning to struggle with a post-Jim Crow America, ruled governments could not enforce restrictive and racist covenants or covenants of any kind. It was considered progressive for the time.

Left unsaid in the ruling, however, was the wink and the nod that governments would also not step in and prohibit covenants that limited what otherwise was “by right” for everybody else.

Got some covenants that say single story, flat roofs, one house per lot, no accessory dwelling units, earth-tone stucco and nothing smaller than 1,800 square feet? Knock yourself out. The government won’t enforce them if a rebel in the neighborhood pops up to challenge them, but the government also will not defend the rebel trying to do what other neighborhoods have a “by right” to do.

Sorry, uptight neighbors, you’ll have to sue to stop your rebellious neighbor. But don’t worry, you’re likely to win in court.

Covenants are sacred cows that should be put out to pasture. Full disclosure: I live in a neighborhood with pages of protective covenants. Do I feel protected? No, but I sure do feel restricted. With homes selling for more than I could now afford to purchase, they’re working as intended.

About the Author

Kim Shanahan has been a Santa Fe green builder since 1986 and a sustainability consultant since 2019. He is recognized as a national expert on Green Building Codes after 35 years of general contracting in Santa Fe, New Mexico. With a career spanning hands-on remodeling, luxury custom homes, and affordable housing subdivisions – all encompassing the best thinking in sustainable construction practices—he is well-suited to understand the complexities of 21st century homebuilding. He also writes a weekly column for the Santa Fe New Mexican real estate section titled Building Santa Fe.