Constitutional Law

Zoning Toward Oblivion

How the Supreme Court's decision in Euclid v. Ambler shaped modern America

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The Zoning of America: Euclid v. Ambler, by Michael Allan Wolf, Lawrence, Kan.: University Press of Kansas, 208 pages, $35/$16.95 paper.

On June 23, 2005, the U.S. Supreme Court announced one of its most notorious and divisive decisions in recent memory: Kelo v. City of New London. At issue was the Connecticut town's use of eminent domain to seize several private homes and commercial lots on behalf of the Pfizer Corporation, which had already built a large research complex nearby and intended to erect offices and research facilities on and around the residential properties.

Writing for the five-member majority, Justice John Paul Stevens argued that New London's redevelopment project qualified as a "public use" under the Fifth Amendment because the city was seeking to provide "appreciable benefits to the community," including "new jobs and increased tax revenue." Toward that end, it had drafted a "comprehensive redevelopment plan" and was "endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts."

As a precedent for this holding, Stevens cited Euclid v. Ambler, a 1926 case known mostly to law students, their professors, and city planners. As the legal scholar Michael Allan Wolf argues in The Zoning of America, his illuminating and richly detailed new book on the case, Euclid was one of the most far-reaching Supreme Court decisions of the last century. "If not for that key 1926 decision," he writes, "most Americans would not be living in 'zoned' cities."

At the heart of the case was Euclid, Ohio, an eastern suburb of metropolitan Cleveland. In 1922 Euclid's village council unanimously adopted a sweeping new plan that regulated the height, area, and use of all structures built on the land within its borders. As the law's preamble declared, village residents sought "to preserve the present character of said Village and the public improvements therein, to prevent congestion, and to promote and provide for the health, safety, convenience, and general welfare of the citizens thereof."

Among other things, the ordinance forbade the operation of veterinary hospitals, slaughterhouses,
tanneries, and stockyards within Euclid's limits. In general, the ordinance sought to minimize industry, apartment buildings, and the mixing of commercial and residential uses; it favored single-family homes surrounded by small lots—in other words, suburban living as we know it today.

The ordinance sailed through the village council, but not every landowner in town was thrilled. Foremost among the malcontents was the Ambler Realty Company, owner of a 68-acre tract intended for sale and development to meet the industrial and commercial needs of rapidly growing Cleveland. According to Ambler's attorneys, the effect of the ordinance was to "so limit, restrict and control the lawful use of its said lands as to confiscate and destroy a great part of the value thereof."

Prospective buyers would be "unwilling to consider land as to which it will be necessary for them to conduct burdensome and expensive litigation in order to vindicate their right to subject it to lawful and legitimate uses." The ordinance, Ambler concluded, deprived it and other landowners of their property rights without due process of law, in violation of the 14th Amendment. Within six months, Ambler Realty was spearheading the legal challenge that ultimately made its way to the nation's highest tribunal.

The Supreme Court rejected Ambler's claims, ruling six to three in favor of Euclidian zoning. "The
exclusion of buildings devoted to business, trade, etc., from residential districts," Justice George Sutherland wrote for the majority, "bears a rational relation to the health and safety of the community." This "rational basis" test is far less demanding than the "strict scrutiny" applied to government actions that impinge on "fundamental rights" such as freedom of speech; in those cases, the government has to prove that its actions are narrowly tailored to meet a necessary state interest.

Sutherland was signaling the Court's deference to local authority, its unwillingness to substitute its
judgment for the decisions reached by the village council after public hearings and careful deliberation. "If the validity of the legislative classification for zoning purposes be fairly debatable," Sutherland said, "the legislative judgment must be allowed to control."

Wolf, who teaches local government law at the University of Florida, traces the case from its origins in Cleveland's earliest suburban stirrings to its impact on urban planning today. As Wolf notes, Euclid v. Ambler was always about far more than the height of someone's house or the number of businesses permitted on a particular block. The real issue was "the essentially American give-and-take between private need and public benefit, between government obligations and individual rights." It was a question of the state's power to regulate for the health, welfare, safety, and morality of its residents vs. the individual's right to life, liberty, and property. "For eight succeeding decades," Wolf writes, Euclid "would provide the legal impetus not only for comprehensive planning and zoning but also for a broad array of local, state, and federal statutes, ordinances, and regulations designed to make the nation's communities more livable, safe, healthy, aesthetically pleasing, and self-sufficient."

Although he gives a fair hearing to both sides of the dispute, Wolf makes no secret of his sympathy for the village council and his support for the Supreme Court's decision, describing the ruling as "a model of pragmatic and well-balanced Progressive jurisprudence." It was also a necessary step on the road to New Deal economic regulations and today's environmental protections.

Wolf is not blind or indifferent, however, to the adverse consequences of Euclid. He devotes a full chapter to "the negative side of zoning that has always threatened its overall benefit to society." He notes several ill effects from the Court's endorsement of zoning, including legal exclusion of undesirable groups, collusion between business and government to drive out and keep out competition, and land use restrictions based solely on subjective aesthetic standards.

These are all valid objections, but Wolf does not assign them enough weight in his overall calculus.
Take the exclusion of undesirables. Since well before 1926, zoning and proto-zoning ordinances have been used to legally separate, harass, or exclude various unpopular groups, including African Americans, recent immigrants, Muslims, gays, and assorted religious minorities.

To take just one of many examples, in 1870 California passed a law requiring every lodging house in the state to provide a minimum of 500 cubic feet of air for every inhabitant. While the legislation did not mention race or ethnicity, it was obviously aimed at the state's Chinese immigrants, particularly men living in San Francisco's crowded Chinatown, which just happened to be almost the only place where the law was enforced.

Then, when it turned out that men prosecuted under the law typically accepted short jail terms rather than paying fines, San Francisco's Board of Supervisors mandated that jailers cut the hair of every male prisoner to the length of one inch. Many Chinese at the time wore their hair in long braids. The ordinance thus served to further harass and humiliate an already victimized and despised minority.

More recently, the New Jersey Supreme Court ruled that Mount Laurel's land use restrictions, which included a ban on mobile homes, discriminated against blacks and other disadvantaged groups. "Papered over with studies, rationalized by hired experts, the ordinance at its core is true to nothing but Mount Laurel's determination to exclude the poor," the majority declared in a 1983 decision.

For Wolf, zoning laws themselves aren't the problem. The problem is that such laws sometimes fall into "the hands of less enlightened public officials." But that's a common and inadequate response to all sorts of government malfeasance. Let's test it against the career of America's most accomplished city planner, New York's Robert Moses.

As biographer Robert Caro notes in his indispensable portrait, The Power Broker (1974), Moses, who held numerous unelected positions, including New York City parks commissioner and chairman of the Triborough Bridge and Tunnel Authority, built hundreds of playgrounds, tennis courts, and baseball diamonds in New York City; carved out hundreds of thousands of acres of parks throughout New York state; put up thousands of apartment buildings and public housing projects; laid tens of thousands of miles of highways and parkways; erected the United Nations and New York's Lincoln Center for the Performing Arts; and constructed vast bridges connecting Manhattan and its boroughs to each other and to the mainland of the United States. He personally conceived and completed public works projects costing $27 billion in 1968 dollars, which would be nearly $168 billion today.

Yet for all those accomplishments, including the parkway, power dam, and other structures that bear his name, not to mention the company he kept with mayors, governors, and U.S. presidents, Moses was a villain to as many as half a million citizens, most of whom were poor, black, or brown, who watched Moses send his bulldozers, blasting crews, and wrecking balls to destroy their homes, churches, and businesses. "To clear the land for these improvements," Caro writes, Moses "evicted the city's people, not thousands of them or tens of thousands but hundreds of thousands, from their homes and tore the homes down. Neighborhoods were obliterated by his edict to make room for new neighborhoods reared at his command."

Zoning ordinances alone didn't provide Moses with the muscle needed to accomplish all of this, but
such laws undoubtedly played their part in driving out residents or businesses that stood in his way, both by harassing those who held on and by remaking their neighborhoods for the worse. The Supreme Court's decision in Euclid v. Ambler played a role too, throwing the door wide open for the bulldozers of urban renewal while simultaneously affording city planners far more than the mere benefit of the doubt. Planners and the developers they worked with now had the implied consent of America's highest court.

Which brings us back to the eminent domain abuse at the heart of the Kelo case. For many observers at the time, New London's plans were so far out of constitutional bounds as to beggar belief. How could it possibly be OK for the government to seize somebody's house and give the land to a powerful private interest? But as Wolf 's account of the Euclid case makes clear, the Kelo Court approached the issue with eight decades of deference to "comprehensive" urban planning under its belt.

Despite all the conservative complaining you hear about the evils of judicial activism, it would have required an activist Court to save those homes in New London. As the libertarian legal scholar Richard Epstein has observed, ruling against the city would have required the Court to "take an activist stance by striking down a comprehensive plan that had survived endless rounds of public hearings." Which is precisely why Justice Stevens (along with Ruth Bader Ginsburg, Stephen Breyer, David Souter, and Anthony Kennedy) didn't interfere with the redevelopment project, just as the Ambler majority didn't nullify Euclid's zoning law. In both cases, the Court ruled that local officials were entitled to a presumption of constitutionality that trumped the claims of property owners who believed their rights had been violated.

The Zoning of America does much to clarify these and other issues. For anyone wondering how the Supreme Court could get things so wrong in Kelo, or how the Robert Moseses of the world could play such a monumental role in the death and life of great American cities, this informative and well written book is an excellent place to start.

Damon W. Root is an associate editor of reason.

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  1. Root tries to boostrap too much onto Euclid. The connection between Euclid and urban renewal and Kelo is said to be the Euclid majority’s decision to use the rationality test rather than the strict scrutiny test, but Euclid was certainly not breaking any new ground in not recognizing the occupation and use of land to be a fundamental right, comparable to free speech or association or worship or the right to counsel. That was long-established jurisprudence.

    Heck, look at the Takings Clause. The Constitution doesn’t allow the government to violate your fundamental rights by paying you off.

  2. And now pharma is cutting back – perhaps the property will be rezoned for residential use in a few years…

  3. Despite all the conservative complaining you hear about the evils of judicial activism, it would have required an activist Court to save those homes in New London.

    And for Root, it always comes back to arguing about the definition of a term that not everyone, and certainly not law dictionaries, agrees with.

    As I recall, Ambler argued under 14th Amendment rights to due process, arguing that there was not a rational basis for zoning. That’s an argument one is bound to lose especially when, as in that case, there was little to no evidence at the time (and none presented at the trial) as to the effect of zoning on property values.

    The case would have had a better chance of winning if he could have established the effect on land prices and the lack of compensation. Restoring the takings clause would be, IMO, a very good idea, but I dispute the value of arguing over whether requiring that government follow the Constitution is “activism.”

  4. I work in a county planning office specifically tasked with processing applications to amend the county’s zoning code. Earlier today I had to explain to the owner of a mobile home park that it’s against the law for him to keep an RV on his property. I have no idea what proper public purpose that serves. Neither does my boss but she was insistent that this will not change. I had to tell the guy if he wants to do something about it it will take probably three months and cost him $250 and the attendance of at least three meetings of planning subcommittees, the planning commission and the county council. And it’s not likely that he would be successful.

    This is a small southern town with a very distinctive architectural character. To ‘preserve’ that, there are regulations in place that any property owner along any of the six major arteries into the area has to meet certain design guidelines. These include a “local character” color palette for their paintwork. Recently I attended a meeting of the design review board called because the owner of a hardware store along one of the corridors wanted to paint a small blue stripe across the front of his building. The color was too blue or something and was not in the palette so this guy got to sit there for an hour trying fruitlessly to negotiate with some asshole architects telling him that, even though it was the color of the franchise logo and the company was requiring him to paint it, that stripe was contrary to the public interest.

    There is no Home Depot here because orange is unacceptable. Fortunately, the county didn’t have a problem with Lowe’s blue.

    I’m going to get into another line of work.

  5. I’m going to get into another line of work.

    When will they learn that America doesn’t *like* character.

  6. Hogan,

    Isnt an RV a mobile home? Wouldnt a mobile home park be the right place for it?

    Maybe its a manufactured housing park.

    I had a friend in the manufactured housing business – they were not allowed to call them trailers or mobile homes. BTW, unless you live in a cave, isnt your housing “manufactured”.

  7. robc, forgive me yes I meant manufactured housing park. That is apparently the crucial difference. Trailers with wheels are not to mix with trailers without wheels.

  8. Most mobile home zoning regs specify that the homes have to be non-mobile, so that they don’t become de facto camp grounds.

    FYI.

  9. Most mobile home zoning regs specify that the homes have to be non-mobile, so that they don’t become de facto camp grounds.

    Yep. Because the very serious public consequences of blurring the distinction between a manufactured housing park and a campground are…? Both are already (in most zoning codes) given basically identical district restrictions, i.e. siting them out in rural, cheap, undesirable land. In my jurisdiction, at least, you can have a campground right next to a manufactured housing park and the only difference would be that the campground could have a small, unadvertised store for campers.

    My problem with extremely precise zoning requirements (not general future land use guidelines, which I think there is a legitimate case for) is that (and I shouldn’t have to even type this out at reason) they try to micromanage people’s property uses with ultimately specious justifications.

  10. they try to micromanage people’s property uses with ultimately specious justifications

    Who’s to say the restriction wasn’t raised by the other residents themselves? That’s how these things usually start.

  11. Who’s to say the restriction wasn’t raised by the other residents themselves? That’s how these things usually start.

    Our ordinance was written by a consulting firm from Chicago. As far as I know, this might be the first time a violation of this particular provision has come up (we’ve only had zoning for about 10 years). Occasionally violations are reported by neighbors, but in this case it was a Codes Enforcement guy who noticed the nonconformity and ordered the guy to remove the RV. But even if some neighbor wanted to complain – could they make a legitimate case that the neighbor’s property use somehow violated a right of theirs? To the extent that there “oughta be a law”…? This isn’t like a coke smelting blast furnace or a livestock feedlot, it’s an RV in a trailer park. What’s the negative externality here that requires state interference?

  12. What’s the negative externality here that requires state interference?

    I dunno – maybe these guys have a history of dealing with complaints from trailer owners against RV owners in other towns…? It’s probably part of the standard package for “jurisdiction between 10,000 and 50,000 inhabitants” or whatnot.

  13. Zoning continues to rot America, as it is one of the chief unrecognized causes of distortions in the valuations of home values. The areas of the country hardest hit by the “sub-prime” crisis are the areas of the country most over-regulated with exclusionary zoning, rent control, growth restrictions, and nonsensical environmental transfers. This is not a coincidence; it was the statutory inflation of real estate prices that created the need for the sub-prime market in the first place. Until these local mechanisms are either controlled, or the localities again made responsible for their consequences, this “crisis” will never resolve.

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