¶ 18. (concurring). I join in the
result because we are bound by precedent. Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).
¶ 19. The lead opinion correctly points out that our decision is driven by Wisconsin's public policy favoring the free and unrestricted use of property. Majority at ¶ 17. This public policy has a long history in Wisconsin and played an important role in the economic development of this state. Since statehood, the demands of a burgeoning economy and population necessitated flexible land use. Without a public policy favoring the free and unrestricted use of land, changes *232in the use of land required to keep the economy growing would not have been possible. See Casey J. Little, Note & Comment, Riss v. Angel: Washington Remodels the Framework for Interpreting Restrictive Covenants, 73 Wash. L. Rev. 433, 449 (1998). The development of commercial and manufacturing areas in our urban areas would not have been possible if restrictive covenants banned the construction of tanneries, liveries, slaughterhouses or breweries.
¶ 20. The public policy favoring the free and unrestricted use of real property was dominant in the United States throughout the nineteenth century; even governments imposed few land use restrictions. See Kenneth H. Young, 1 Anderson's American Law of Zoning § 1.02 (4th ed. 1996). But, facing overcrowding, blight and dislocation of use, New York adopted the first comprehensive zoning ordinance in 1916. Id. Today, zoning ordinances' restrictions on the free use of land are generally accepted for the purpose of promoting the public health, safety and general welfare. Willow Creek Ranch v. Town of Shelby, 224 Wis. 2d 269, 276-77, 592 N.W.2d 15 (Ct. App. 1998), aff'd, 2000 WI 56, 235 Wis. 2d 409, 611 N.W.2d 693.
¶ 21. While zoning has been considered a legitimate restriction on the private use of real property, restrictive covenants imposed upon real property by owners and developers have not enjoyed the same status. As the lead opinion makes abundantly clear, Wisconsin disfavors privately imposed restrictions on the use of land. I believe that the time has come to abandon an out-of-date public policy in favor of a public policy that recognizes:
[H]ousing today is ordinarily developed by subdividers, who, through the use of restrictive covenants, guarantee to the homeowner that his house will be protected *233against adjacent construction which will impair its value, and that a general plan of construction will be followed. Restrictions enhance the value of the subdivision property and form an inducement for purchasers to buy lots within the subdivision. A covenant requiring submission of plans and prior approval before construction is one method by which guarantees of value and of adherence to a general scheme of development can be accomplished and maintained.
Davis v. Huey, 620 S.W.2d 561, 565 (Tex. 1981) (citations omitted).
¶ 22. The public policy favoring the free use of land has been abandoned in Restatement (Third) of Prop.: Servitudes § 4 (Introductory Note) (1998):
The general principles governing servitude interpretation . .. adopt the model of interpretation used in contract law and displace the older interpretive model used in servitudes law that emphasized the free use of land, sometimes at the expense of frustrating intent. In adopting this model, this Restatement follows the lead of courts that have recognized the important and useful role servitudes play in modern real-estate development. To the extent that the old canon favoring free use of land remains useful, its function is served in cautioning against finding that a servitude has been created where the parties' intent is unclear.. . and in construing servitudes to avoid violating public policy.... It also may play a role in limiting the creation of servitudes that burden fundamental rights... and limiting the rulemaking powers of community associations... . Aside from those situations, construing in favor of free use of land should play no role in interpreting modern servitudes. (Emphasis added.)
*234¶ 23. "[T]o ascertain and give effect to the likely intentions and legitimate expectations" of property owners, id., the Restatement adopts a new principle governing the interpretation of restrictive covenants:
Interpretation of Servitudes
(1) A servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created.
(2) Unless the purpose for which the servitude is created violates public policy, and unless contrary to the intent of the parties, a servitude should be interpreted to avoid violating public policy. Among reasonable interpretations, that which is more consonant with public policy should be preferred.
Id.
¶ 24. The justification for a new principle to guide the interpretation of restrictive covenants is provided in the commentary:
The rule that servitudes should be interpreted to carry out the intent of the parties and the purpose of the intended servitude departs from the often expressed view that servitudes should be narrowly construed to favor the free use of land. It is based in the recognition that servitudes are widely used in modern land development and ordinarily play a valuable role in utilization of land resources. The rule is supported by modern case law.
Id. § 4.1 cmt. a.
¶ 25. When this modern approach is employed by courts to review decisions of an architectural control committee, the question is no longer whether the *235committee's decision inhibits the free use of land but whether its decision is reasonable.1 See Allen Oshinski, Restrictive Covenants and Architectural Review: Some Suggested Standards, 27 J. Marshall L. Rev. 939, 941 (1994). The Restatement imposes a duty upon a committee "to act reasonably in the exercise of its discretionary powers including .. . design-control powers." Restatement (Third) of Prop.: Servitudes § 6.13(1)(c).2 See also Marvin J. Nodiff, Decision-Making in the Community Association: Do the Old Rules Still Apply?, 52 J. Mo. B. 141, 147 (1996). In applying the rule of reasonableness, one court places "special emphasis on arriving at an interpretation that protects the homeowners' collective interests." Riss v. Angel, 934 P.2d 669, 676 (Wash. 1997).
¶ 26. If I were to apply the modern approach to the decision of the Committee in this case, I would start with the discretion given to the Committee to grant permission to build a detached boathouse. Majority at ¶ 3. In exercising this discretion, the Committee's mandate is to enforce the restrictive covenants in such a manner as to give effect to the intent of the covenants *236and to protect the interest of all the homeowners in the subdivision. That there have been no other requests to construct detached boathouses in the subdivision, Majority at ¶ 4, demonstrates the collective interest of the members of the Upper Oconomowoc Lake Association that all boat storage structures be attached to a garage or home. Because the Committee must take into consideration the collective interest of the homeowners, the proposed boathouse's "harmony of external design with existing structures" and "location with respect to topograph," Majority at ¶ 3, it is reasonable for the Committee to decide that the intent of the restrictive covenants is not given effect by permitting the construction of a detached boathouse. Normandy Square Ass'n v. Ells, 327 N.W.2d 101, 104 (Neb. 1982) (it was reasonable for an architectural review committee to deny permission to build a fence because it violated the harmony of external design and location in relation to the surrounding structures and topography).
¶ 27. If I could use the modern approach to interpreting restrictive covenants, I would approve the action of the Committee because the proposed detached boathouse changed the neighborhood ambiance, backdrop and setting. The proposed boathouse would be the subdivision's only detached boat storage. These factors furnish an objective, reasonable and nonarbitrary basis for denying permission under the modern approach embodied in the Restatement.
The rule of reasonableness has been applied to decisions of architectural control committees in other jurisdictions. Riss v. Angel, 934 P.2d 669, 677 (Wash. 1997); Palmetto Dunes Resort v. Brown, 336 S.E.2d 15, 19 (S.C. App. 1985); Normandy Square Ass'n v. Ells, 327 N.W.2d 101, 104 (Neb. 1982); Davis v. Huey, 620 S.W.2d 561, 565 (Tex. 1981).
The case law and authorities applying the modern approach to interpreting restrictive covenants focus on common-interest communities, such as condominiums, cooperatives and homeowners associations. Casey J. Little, Note & Comment, Riss v. Angel: Washington Remodels the Framework for Interpreting Restrictive Covenants, 73 Wash. L. Rev. 433, 436 n.18; Restatement (ThiRd) op PROP.: Servitudes § 1.8 (1998).