Private Covenants and Local Zoning: Dual or Dueling Land Use Regulations?

Counties, cities, and towns in Washington have a responsibility to plan for and regulate land use and development under the state Growth Management Act and other statutes. These public regulations—such as zoning codes, building codes, and infrastructure standards—are enforced by local governments.

But there is a second set of private property regulations that apply to many properties. Private land use regulations, such as private covenants, are private contractual agreements between parties—for instance individual property owners or homeowners’ associations (HOA)— and property owners must navigate both sets of land use regulations.

When public and private regulations conflict, it can be confusing for everyone involved—property owners, contractors, HOAs, and local governments. This blog will provide an overview of private land use regulations, how they relate to public land use regulations, and how local governments can help clarify and improve how the two sets of regulations interact in their communities.

What Are Private Land Use Regulations?

Private land use regulations are agreements entered into by private parties that set out rules for how the property can be used or maintained. They can occur in several forms:

• Use Restrictions. Private use restrictions limit the types of activities or businesses that can operate on a property.
• Development Standards. Private development standards regulate structural style, height, and size to ensure architectural consistency within a neighborhood. They may also restrict lot size or dimension, design features, and building materials that can be used.
• Community Spaces. Private restrictions on community spaces govern the shared use and maintenance of private amenities and infrastructure (e.g., parks, trails, stormwater facilities, or private roads).
• Easements. Private easements are legal rights granted to others—such as utility companies or neighbors—to access or use a portion of a property for a specific purpose.
• Subdivision Restrictions. When a subdivision is created, restrictions for use of the newly created properties are often recorded on a plat map. Some of these restrictions may be required by the local government as conditions of approval of the subdivision application.
• Deed Restrictions. Private deed restrictions are recorded by a property owner to restrict future use of a property, often as part of an agreement to sell or donate it.

Private land use regulations are sometimes referred to as Covenants, Conditions, and Restrictions (CCRs) or simply as ‘covenants’. They are contractual agreements between property owners, and a local government is not involved unless it is a party to the contract (e.g., it owns property within a subdivision governed by CCRs).

Where Can They Be Found?

Private land use restrictions are typically recorded alongside other legal documents related to property ownership at a county clerk’s or auditor’s office. They may appear on plat maps, property deeds, or in private agreements between property owners.

Restrictions are also often embedded in HOA bylaws, which define the rules and responsibilities of HOA residents. Whether established by the initial developer or a successor HOA, these bylaws may have been recorded with the county and, as a result, are publicly accessible.

How Do Private and Public Land Use Regulations Coexist?

Four broad principles apply when trying to understand how public and private land use regulations interact:

1. Local governments do not enforce private land use regulations,
2. Local governments are not required to consider private covenants when permitting development,
3. Federal and state law limit what private covenants can regulate, and
4. Recent state laws prohibit CCRs that limit housing affordability.

Let’s look at each principle in greater detail.

Local governments don’t enforce private land use regulations

It is not the responsibility of cities, towns, or counties to enforce private covenants or other land use restrictions. The enforceability of covenants was addressed in Viking Properties, Inc., v. Holm (2005):

Moreover, the City has correctly conceded that it “has no authority” to enforce or invalidate restrictive covenants, CP at 201, and explicitly accounted for the existence of such covenants in its comprehensive plan by forecasting that areas subject to covenants would experience less future growth than other areas within the City

In another decision, the Washington State Court of Appeals, Division II makes clear that an issue related to a covenant is a private matter between private property owners, and, by implication, a city or county has no role in resolving a dispute between homeowners over whether a private covenant is being met. See unpublished decision at Oakbrook, 7th Addition Homeowners Ass'n v. Newhouse (2007). 

Local governments are not required to consider private covenants when permitting development

Counties, cities, and towns are not required to abide by CCRs in making their land use decisions. While local zoning or building codes could potentially conflict with CCRs, a county, city, or town applies its own development regulations to determine whether an applicant should be granted a permit.

RCW 64.38.160 explicitly protects local governments from civil liability if they issue a permit for an accessory dwelling unit (ADU) that is inconsistent with an HOA’s CCR. However, a property owner could still be subject to a private lawsuit if they build in violation of CCRs that their property is subject to.

There is one exception: RCW 58.17.215 requires that, if an application to amend a plat would result in the violation of a covenant, the local government must ensure the application includes an agreement signed by all parties subject to the covenant. See Jones v. Towns of Hunts Point (2011).

Federal and state law limit what private covenants can regulate

Private parties can enter into contractual agreements with each other regarding use of property, unless they are limited by state or federal law. For example, both federal and state law prohibits racial discrimination in real estate transactions, including CCRs.

RCW 49.60.224 prohibits discriminatory covenants, such as those based on race, creed, gender, sexual orientation, and national origin. All existing racial exclusion covenants are void and unenforceable and can be removed pursuant to RCW 64.38.028 and RCW 49.60.224. (For a more detailed explanation, see the 2021 MRSC Insight blog, The Lasting Impacts of Discriminatory Restrictive Covenants.)

In 2023, the Washington State Legislature established the Covenant Homeownership Program (HB 1474) to further address past discriminatory practices in lending and real estate transactions.

Chapter 64.38 RCW, which addresses HOAs, places additional limitations on what an HOA can privately regulate, but specifically prohibits CCRs from excluding:

• Solar panels (RCW 64.38.055);
• Pollinator habitat and certain types of drought and wildfire ignition resistant landscaping (RCW 64.38.057);
• Adult family homes (RCW 64.38.060);
• The display of flags or political signs (RCW 64.38.033 and .034); and
• Family day care providers/licensed child day care centers (RCW 64.38.140).

Recent laws prohibit CCRs that limit housing affordability

In recent years, the legislature has also adopted several limitations on HOAs to prevent them from creating new CCRs that make it difficult to introduce lower-cost housing options. Such barriers exacerbate socioeconomic disparities and make it harder for cities to meet housing demand at the differing income levels required by RCW 36.70A.070(2).

RCW 64.38.150 –.900 prohibit, with some exceptions, new CCRs from placing restrictions on middle housing, ADUs, occupancy limits, and multi-family housing or transit-oriented development density in designated station areas. These are prospective requirements rather than retroactive, so pre-existing limitations in CCRs could still be privately enforced.

Local governments should issue permits for these housing types when allowed by their local codes—regardless of CCR prohibitions. Any HOA-property owner dispute remaining from an older CCR is a private matter.

Local Governments Can Help Minimize Conflicts

Private land use restrictions could limit implementation of comprehensive plan goals for housing, land use, transportation, climate response, or economic growth. This could be especially true for jurisdictions planning for adequate housing as required by RCW 36.70A.070(2).

However, local governments can mitigate some of these conflicts by addressing them in their comprehensive planning and development permitting processes.

A recent publication by the American Planning Association, Hidden Controls: Private Covenants and Zoning, from Zoning Practice, Sept 2025, Vol. 42, No. 9 (subscription required), suggests steps that counties, cities, and towns can take, including:

• Identifying Potential Conflicts. Research private restrictions that affect land use in your jurisdiction. If researching restrictions on every individual parcel is too cumbersome, reviewing subdivision restrictions is manageable and important. The Racial Restrictive Covenants Project at the University of Washington and Eastern Washington University is identifying and mapping neighborhoods marked by racist deed provisions and covenants. Jurisdictions could also contact HOAs to request their CCRs and bylaws. Local governments should compare private restrictions to comprehensive plan goals and local development regulations and carefully consider them during plan or code updates.
• Verifying Actual Conflicts. Check whether state or federal law invalidates or limits some restrictions. Local governments should notify HOAs or property owners of any CCRs that are prohibited.
• Using Private Covenants to Advance Planning Objectives. Local governments often use covenants or plat conditions to achieve planning and public policy goals. To be effective, such covenants must be carefully structured with clear terms, measurable obligations, and well-defined enforcement mechanisms. Common uses include:
  • Affordable housing agreements tied to land use approvals
  • Easements for infrastructure or environmental purposes
  • Negotiated provisions in development agreements

Other best practices to consider regarding private land use restrictions are:

• Use Clear Disclaimer Language. Include statements on all land use applications that your jurisdiction does not enforce CCRs, and applicants should verify private restrictions independently. For example, Washington County, Maryland, includes disclaimer language on its Owner’s Representative Affidavit.
• Offer Training for Staff. Ensure permit reviewers understand they should evaluate applications solely against municipal codes, and not private covenants.
• Establish Notification Protocols. Establish procedures for alerting applicants when staff become aware of potentially conflicting covenants while making clear this is only a courtesy—property owners bear the responsibility of navigating compliance with CCRs.
• Adopt Plat Amendment Procedures. Adopt and implement clear administrative processes for determining CCR violations per RCW 58.17.215, potentially including:
  • Formal administrative determinations;
  • Appeals to a hearing examiner; and
  • Documentation requirements (for example, see those required by Clark County, Leavenworth, and Pomeroy).

Conclusion

Private land use restrictions can pose significant challenges for local governments when they conflict with local zoning, hinder affordable housing efforts, or reflect outdated and discriminatory practices.

Local governments should be equipped to explain these legal complexities to property owners, assess their implications during comprehensive planning and development review processes, and work collaboratively with their communities to help ensure that private restrictions do not significantly undermine broader public goals.

Covenants, deed restrictions, easements, and other private land use restrictions affect properties in most Washington jurisdictions, and property owners must navigate both public and private land use regulations. CCRs are enforced by the involved parties, such as HOAs, as private contracts, and local governments are not responsible for their enforcement.