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The Role of The Woodlands Restrictive Covenants and Development Standards in Sustaining George Mitchell’s Vision

by Mike Bass
The Woodlands Texas

Most Woodlands Residents normally pay little attention to the requirements of our Restrictive Covenants and Standards (collectively called Deed Restrictions) or their enforcement. At least until they want to make improvements or major repairs to their property. But when they purchased their homes they agreed to abide by the requirements of these Deed Restrictions. Standards have been developed for both Commercial and Residential Properties and are applied uniformly across all The Woodlands. These standards are updated from time to time to reflect new building practices, materials and architectural designs. Numerous HOAs exist within The Woodlands which also have their own Deed Restrictions. However, these individual HOA rules and regulations are subservient to The Woodlands Restrictive Covenants and Standards.

Our Restrictive Covenants and Standards are an integral part of the overall governance structure envisioned by George Mitchell. They were originally developed by The Woodlands Development Company to sustain his ideas and concepts. Our Restrictive Covenants and Standards are designed to:

  • Encourage environmental excellence 
  • Preserve the design integrity and architectural quality of Woodlands dwellings
  • Prevent the deterioration of neighborhoods that inevitably follows an unregulated, laissez-faire philosophy of construction, maintenance and property use
  • Uphold property values

For over forty years, our Restrictive Covenants and Standards have served us well. They have evolved and been adapted to keep pace with change.  

Will Our Current Restrictive Covenants and Standards Survive If We Incorporate?

When The Woodlands incorporates (we have until November 2057 to do so), the Texas Constitution requires that we first do so as a General Law City. General Law Cities are the most restrictive form of municipal government and only have the authority explicitly granted to them by the Legislature.

Once incorporated, the resulting City Council will have the authority to enact local laws-ordinances. These ordinances can include a few areas that cannot presently be regulated through our Restrictive Covenants and Standards. Examples are regulation of barking dogs, fireworks, parking on neighborhood streets and noise. By statue, ordinances are not subject to approval by voters.

The City Council may also adopt “land use ordinances” which include:

  • Planning and Zoning Regulations
    • Adopting a Comprehensive Zoning Plan
    • Enacting Zoning ordinances and codes
    • Adopting a process for handling local appeals, granting of variances and resolution of nonconforming properties
  • Building Ordinances
    • Adopting Subdivision and Platting Regulations
    • Adoption of Building Codes and building permit procedures

There is a great deal of redundancy and overlap between these sorts of ordinances and our Restrictive Covenants and Standards.  But these ordinances will not, and cannot, fully replace our Residential and Commercial Standards as being asserted by some. Municipal ordinances are subject to many federal and state statue and constitutional restrictions. The only constitutional restriction of our Restrictive Covenants is the Fourteenth Amendment- “Equal protection under the law.”  

Today, as a Master Planned Community, we are effectively zoned. Though the use of the platting process, Intended Land Use Designations (which specify how  a property may be used), and our Restrictive Covenants and Standards (including individual Neighborhood Criteria), we have achieved the benefits of zoning. In fact, our current land use regulations are materially far more encompassing than any city regulations. In addition, our Covenant Committees are responsible for issuing building permits, developing and adopting building codes, requiring building inspections and granting variances. This includes adopting flood mitigation building regulations. We can do anything, and more, than any municipal ordinances.

Granted, because they are civil contracts, our Restrictive Covenants and Standards are more cumbersome to enforce than city ordinances. Because they are private, civil contracts, Restrictive Covenants can only be enforced only through the civil legal process. Ordinances are enforced  through the criminal process by the levy of fines, but even if such fines are levied, the accused property owner still must have their day in Court. Our Restrictive Covenants do not provide, nor can they be changed, to allow for the use of fines to penalize violators.

Ultimately, we must be willing, which we have proven time and time again, to take violators to court as a last resort.  But our Restrictive Covenants and Standards have the advantage that they can cover a much wider range of issues to preserve our property values. Some Township Board Members assert we can solve the enforcement frustration and be more efficient in enforcing our Deed Restrictions by simply replicating all our Restrictive Covenants and Standards as municipal ordinances. Not true! For example, a City cannot tell a property owner:

  • They cannot have yard sign in their yard
  • What color to paint their house
  • Not to store a RV or trailer in their driveway.
  • They must cut their grass
  • They must repair their house (unless the City can show the house is a health/safety issue)
  • They cannot leave their trash cans in public view
  • They must remove mold from their house or repaint their house

A city cannot choose to enforce both Restrictive Covenants and Planning and Zoning ordinances. Technically, even if a future City Council chose to adopt Planning and Zoning rather than continue to enforce our current Restrictive Covenants, our Restrictive Covenants can not be eliminated. They just  must be enforced differently than we do today. To continue to enforce the Restrictive Covenants would require we revert to the old Association organizations and use property owner assessments to cover the cost of the continued enforcement of our Restrictive Covenants. This would be a step background from the changes made in 2010 when the Associations were disbanded. At that time, The Township assumed the role of funding all of Covenant enforcement and the cost of doing so was included in your property taxes.

But we are lucky in this respect. If we chose to incorporate, the option by a new city to adopt planning and zoning regulations is a moot point. In January 2007, as part of the transition away from the previous Associations, The Township legally obligated itself, and any successor General Law or Home Rule city, to the continued enforcement of our Restrictive Covenants. Since 2007, The Township has also assumed the responsibility to enforce the covenants for the Lake Woodlands Property Owners Association. These legal obligations will obligate a future city and will prevent a future city council from ever adopting planning and zoning regulations, since there is no option for a city to do both. At least, as long as our Restrictive Covenants remain in place.

How are our Restrictive Covenants and Development Standards managed and enforced?

The effective enforcement of The Woodlands Restrictive Covenants and Residential Standards, which are also referred to as Deed Restrictions, is extremely important to the maintenance of property values in The Woodlands. (For a copy of the standards, call 281-210-3973 or go to The Township Web site here.) These protective deed restrictions set the standards for property maintenance and apply the acceptable standards for physical changes made to properties. In enforcing our Restrictive Covenants and standards, there is an inherent tension between achieving a balance between the rights of individual property owners and the desires of the neighborhood and community at large.

Our Restrictive Covenants and Standards are civil contracts with each property owner. Thus, they can only be enforced through a civil due process rather than the use of “tickets” and fines used by cities to enforce their municipal ordinances. For neighbors this can sometimes be a lengthy, frustrating process. On the other hand, these private contracts allow The Woodlands to enforce an all-inclusive set of standards important to maintaining the quality of the look and feel of our community.

Our deed restrictions require that properties be kept in good order and repair. For example, that includes yard maintenance. If a yard is becoming overgrown, it may mean that the residents have moved out and the new owners were delayed in moving in, or that a lawnmower has broken, and so on, or the property is being rented by an absentee property owner. It may also simply be a matter of individual style. In fact, The Woodlands philosophy even encourages "natural yards" with less grass and more forest. Whatever the reason, if the situation is not temporary and once a deed restriction violation has been established, notices are sent to the owner, and if there is not compliance, the Township Board of Directors can authorize litigation to cure the violation.

The Restrictive Covenants are designed to be difficult to change or eliminate. To do so requires a vote by two-thirds of all property owners, not just those who may vote in such an election. However, the standards can be changed as needed to keep pace with changes in building materials, technology, business practices and property owner desires. The Restrictive Covenants grant the Covenant Committees the authority to make such changes

When a property is sold, it is encumbered with one of the following Restrictive Covenants:

  1. 1. The Woodlands Community Association (WCA)
    1. a .Restrictive Covenants are monitored and enforced by the Design Standards Committee (DSC) and controlled by the Residents
    2. b. Responsible for all commercial and residential properties with the WCA area
  2. 2. The Woodlands Association (TWA)
    1. a. Restrictive Covenants monitored and enforced by the developer-controlled Development Review Committee (DRC) and controlled by the Development Company
    2. b. Today, the DRC has delegated its responsibility for monitoring and enforcement of Restrictive Covenants for all occupied properties to the DSC, greatly simplifying the process and achieving greater consistency in decision making. Responsibility for approving all new construction has been retained by the DRC.
  3. 3. The Woodlands Association of Neighborhoods (encompasses the Windsor Hills and Windsor Lakes Neighborhoods)
    1. a. Separate Restrictive Covenants and standards enforced by their respective HOAs
  4. 4. Trade Center (encompass the industrial area around Harper’s Landing)
    1. a. Separate Restrictive Covenants and standards enforced by respective property owner association
  5. 5. The Woodlands Commercial Owners Association (encompasses the Commercial Property with the Town Center and along portions of Research Forest)
    1. a. Separate Restrictive Covenants and standards enforced by respective property owner association

The following map shows which of the above Restrictive Covenants apply to properties within The Woodlands. Most residential property in The Woodlands fall either under the DSC or DRC Covenant Committees (Click to enlarge).

The Development Standards Committee (DSC) has the responsibility to adopt and enforce standards governing property use and maintenance. The committee promulgates rules and regulations that govern The Woodlands. The DSC, which is made up of four residents appointed by the Township Board and three Woodlands Development Company appointees, is the only committee with the power to grant variances. The DSC also reviews requests for improvements on all existing commercial properties. The DRC still has the authority to approve all new construction with its area. The Township Board of Directors have no authority over the DSC or DRC but are required by the Restrictive Covenants to fund the activities of the DSC. The developer is responsible for funding the activities of the DRC.

The Residential Standards, which apply to all properties in The Woodlands, require that the placement, construction, alteration or repair of any temporary or permanent structure or improvement on a lot with an existing single-family dwelling must have the prior written approval of the Residential Design Review Committee (RDRC) or their designated staff. In addition to the Standards, Neighborhood Criteria establish more specific regulations, which vary from one neighborhood to another. All improvements must comply with the Neighborhood Criteria applicable to that lot.

Each RDRC is made up of at least three people elected by the Village residents and property owners to serve one-year terms. RDRC members serve in a volunteer capacity and represent the resident viewpoint essential to the evaluation and approval process. Each RDRC meets at least once a month to review property owners' applications for modifications or additions to their properties.

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