The Dark Side of Zoning

An interesting op-ed piece in Sunday's Honolulu Star-Bulletin, "Thank zoning laws for your peaceful home," extols the virtues of zoning:

It has now been more than 85 years since the residents and city council of the little village of Euclid, Ohio, found that their quiet neighborhoods, where their children played, where they walked their dogs and spent their quiet hours after a hard day's work, had no legal government protection from what could be built next door; not from a horse stable, a cement factory or even a slaughterhouse. So to their credit, Euclidian zoning was born, and upheld by the courts as a reasonable protection for residential areas.

The case the author is referring to, of course, is Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), the case in which the U.S. Supreme Court first upheld the segregation of land uses in an Ohio suburban town into districts against a substantive due process challenge. Law students study the case, land use lawyers and planners know it intimately, and "Euclidean" zoning has become the shorthand for district-based single use zoning.

Overall the author's points are valid, as zoning has become so well accepted as the norm that its general validity is not often questioned. (Only one major U.S. city -- Houston, Texas -- has no formal zoning code, although it does have land use and other regulations governing the use of property.)  However, before thanking Euclid and zoning for too much, a couple of points should be clarified, because zoning has a dark side which has been present since its inception. 

First, the contention that before zoning, the residents of Euclid had no legal protection against a slaughterhouse or cement factory being located next door is not quite right: the law of public and private nuisance allowed (and still allow) property owners to go to court to prevent uses of property that injure their own property. At common law, no one had the right to make use of their property in such a way to injure their neighbors. The government's police powers could also be used to protect against nuisances. See, e.g., Hadachek v. Sebastian, 239 U.S. 394 (1915).

Second, the nuisance principle played an important part in convincing a very conservative Supreme Court to produce a surprisingly Progressive decision. After all, Euclid was decided during a time in which the Court routinely struck down all sorts of government regulations on the basis that they violated economic rights or the freedom to contract. Given the Court's philosophical leanings, it was even more surprising that the Euclid decision was authored by one of the "Four Horsemen," Justice Sutherland. These Justices were apparently convinced to treat zoning as a form of nuisance prevention. What was the "nuisance" being prevented?  Apartments. Specifically, apartments near single family homes.

In a carefully worded after-the-deadline amicus brief filed by Alfred Bettman (who just happened to be a good friend of Chief Justice Taft) on behalf of the National Conference on City Planning, he argued that zoning was simply the "modern mode" of nuisance law, and thus validly could keep "residential" uses separate from apartments which are "disorderly, noisy, slovenly, blighted and slum-like districts" in the same fashion as nuisance law. 

In those days, "slums" and "tenements" were code words for "immigrants" and "minorities," and it should not be a big jump to see how the conservative Justices received what we would today call the "meta-message" loud and clear: if you uphold zoning, we can keep "those" kind of people away from "our" kind of people. With those of roots, it should be no surprise that in the intervening 85 years, zoning has sometimes been to keep "undesirables" out of the neighborhood, to validate NIMBYism, or even as a weapon for out-and-out racial discrimination and segregation of races and classes. The district judge had invalidated Euclid's ordinance for the latter reason, but was reversed by the Supreme Court.

Interesting historical note: the first vote by the Court was 5-4 to affirm the district court's decision, but after Bettman contacted Chief Justice Taft and suggested that his brief was important enough to be filed after the deadline (and after oral argument), the case was reargued, this time with a different result. I guess back then, this is what was meant by "friend of the court." Today, we'd call it an ex parte contact.

If you want the Bettman brief, let me know and I will send you a copy. Professor Gideon Kanner posts his thoughts on the case here. For more about the Euclid case, pick up a copy of The Zoning of America: Euclid v. Ambler, available from Amazon.