covenants. These covenants limited what people could do with their land, who they could sell it to, and how common areas would be managed. Nichols also created homeowners associations to manage and enforce the covenants. By prohibiting nonresidential uses in residential areas, Nichols’s covenants assured middle-class homebuyers that their neighborhoods would not be invaded by industrial or retail shops. Moreover, by specifying the minimum cost of building a new home or the use of high-cost materials, the covenants assured homebuyers that their neighborhoods would not be invaded by working-class families whose tastes were significantly different from their own.
Nichols was far from the first to use protective covenants. As early as 1749, the Penn family used deed restrictions in some of their land sales requiring buyers to build homes of brick or stone, not wood, within one or two years of purchase.22 In 1837, homebuyers in a development called Rock Park Estate in Cheshire, England, had to agree to have no fences taller than three feet, to have no businesses other than medicine or teaching, to set homes and other buildings back from streets, and to share in the cost of a community water supply.23
In the mid 1850s, a New York City businessman named Llewellyn Haskell put together 350 hilly, wooded acres near West Orange, New Jersey—which at that time would have been a long commute from New York City—and subdivided it into 130 lots of at least 1 acre each. He set aside 50 acres along a creek as a common area and restricted the lots he sold to residential purposes.24
Haskell turned out to be ahead of his time, or at least he timed his project badly. He lost control of the project during the recession of 1857, and the Civil War also put a damper on land sales. By 1886, only 38 out of 130 lots had sold.25
Nichols was more influenced by Kansas City developer Kersey Coates who, in 1857, put a deed restriction on some of his subdivisions requiring that homes be built of brick, which cost five times as much as wood homes. These subdivisions became known as “Quality Hill.” Coates, an abolitionist, also designed subdivisions for working-class families and donated land in one neighborhood to a black Baptist church and a black elementary school. Ironically, Coates’s well-intentioned efforts effectively segregated blacks from whites in Kansas City.26
In 1868, Frederick Law Olmstead helped design Riverside, a suburb of Chicago whose restrictive covenants required minimum lot sizes of one-half acre and homes costing no less than $3,000 (about $50,000 today using the consumer price index and $350,000 using the unskilled wage index). Also influential was Roland Park, a suburb of Baltimore planned in the early 1890s. Roland Park included a small shopping area that today might be called a strip mall. Deed restrictions forbade nonresidential uses in the rest of the subdivision. Depending on the lot, the minimum cost of houses was set at $2,000 to $5,000 ($50,000 to $125,000 today using the consumer price index and $240,000 to $600,000 using the unskilled wage index). Initially, deed restrictions were perpetual, but the developer later changed them to last for 25 years and be renewable after a vote of the homeowners.27
As it happened, Roland Park was managed by Edward Bouton, a Kansas City native, and was designed with the help of George Kessler, a Kansas City engineer. Kessler would later work with J. C. Nichols, and Nichols would credit Roland Park as one of his main inspirations.
Nichols’s ability to learn from each new subdivision can be seen in the evolution of the deed restrictions he wrote for them. In 1908, the restrictions for one of his first developments were written to last 25 years.28 Such restrictions were common to many planned communities, but they created a problem at the end of those 25 years. Developers were reluctant to make restrictions perpetual, because no one could foresee what people in the distant future would want. Some developers urged cities to pass zoning ordinances to take control when the deed restrictions expired.
Starting in 1909, deed restrictions written by Nichols lasted 25 years with an optional renewal by the homeowners association. Nichols thought this option still created a problem because the homeowner association would have to take a positive action to renew the restrictions or they would lapse. So he hit on the idea of having the restrictions renew automatically unless the homeowners association voted not to renew them.29
By 1922, Nichols had developed what he considered the optimal set of restrictions, and so he went to the homeowners associations of his already-completed subdivisions, as well as some nearby developments done by others, and urged them to adopt his new restrictions. They all agreed to do so, although a minority group at one subdivision protested as far as the Missouri Supreme Court, which agreed with the majority.30 Nichols also created deed restrictions and a merchants association for Country Club Plaza, his pioneering shopping mall.
Nichols considered deed restrictions to be such a powerful selling tool that all his advertising emphasized that property values would be “protected” by the restrictions. His restrictions did not specify any particular architectural styles, but they did require that his company approve all building designs. He also included minimum costs for homes and various other limits on uses. “Every year we are planning and studying as to how we can impose upon that property more conditions, and more restrictions,” he told other developers in 1921, “and it has paid and it is paying.”31 Restrictions cost the developer almost nothing, but they could add considerably to the value of property by assuring buyers that their land values would not be reduced by undesirable intrusions.
Among the other common areas included in Nichols’s developments were “interior parks” in the middle of some blocks, with playground equipment and other features accessible only through the back doors of people’s homes. Similar parks had previously been included in Roland Park and were later a part of the much-lauded Radburn, a planned development in New Jersey designed by architect Clarence Stein. Stein treated the streets as service areas only and faced the fronts of the homes in Radburn toward the parks, which included walking paths that connected the homes with the outside world. Nichols also oriented his homes toward the side away from the street.
The problem with interior parks, as Country Club District residents found, is that they expose homes to potential intruders on two fronts: the front and back of the homes. If the interior parks are common areas, as at Radburn and in some Country Club subdivisions, as opposed to private backyards as in more conventional suburbs, then no one can tell if someone walking in the common area is a resident or a potential burglar. Because of residents’ concerns about vandalism and break-ins, all but one interior park in the Country Club District were resubdivided among homeowners. Many of the Roland Park interior parks were also eliminated.32
The solution to this dilemma turned out to be gated communities. Sometimes decried as enclaves for the rich, a gated community is one way homeowners can protect themselves from turning interior common areas into pathways for crime; without such common areas, there would be no need for gated communities. The first planned community with a common area, Llewellyn Park, is a gated community, and no one from outside the community, except guests of the residents, may visit the common areas without written permission from the community association.33
One constant in Nichols’s deed restrictions was a provision forbidding homeowners to sell to blacks and, in his early developments, Jews. Some writers have challenged the entire idea of protective covenants based on the fact that some of them included such racial restrictions.34 Although America’s racist past is shameful, covenants and deed restrictions can’t be blamed for it any more than today’s transit agencies can be blamed for the Montgomery, Alabama, bus company that was required by Jim Crow laws to order Rosa Lee Parks to sit in the back of the bus.
Racial restrictions were actually rare to nonexistent in protective covenants before 1908. Instead, developers implicitly assumed that other restrictions, such as minimum-cost requirements for homes, would effectively prevent blacks and other minorities from moving into their subdivisions.
Zoning and Land-Use Restrictions
The
