Zoning’s Forgotten Man

         We commend our fellow blogger, Robert H. Thomas of www.inversecondemnation.com for his post (The Dark Side of Zoning, December 14, 2008) on the background of Euclid v. Ambler, the first-impression U.S. Supreme Court case dealing with zoning. In it, a split Court voted 5 to 4, to reverse the trial court’s decision and to uphold zoning as constitutional. Thus, zoning is not, as is at times tacitly assumed, some sort of unchallegeable ancient doctrine, but a relatively recent notion endorsed by the U.S. Supreme Court in 1926, by a razor-thin, one-vote majority. You can read the Court’s opinion at 272 U.S. 356, but Thomas gets our attaboy for noting what does not appear in the opinion – that at first, the Court voted (also 5 to 4) to affirm the trial court and to hold zoning unconstitutional.

          It was only after some suspicious departures from the Court’s usual procedures that the author of that opinion, Justice Sutherland, changed his vote, thus converting the dissent into a majority opinion. It appears that this judicial change of heart took place only after Justice Stone had a private chat with Sutherland and persuaded him to change sides. The consensus of the informed members of the land-use bar is that Stone stressed the need to uphold a regulatory regime that would protect the homes of the well to do from proximity to the hoi polloi. A significant clue may be found in Sutherland’s Euclid opinion. Although in that case, the landowner wanted to use his land for industrial purposes, whereas the Village of Euclid zoned it single-family residential, in the midst of his opinion Sutherland launched a vitriolic attack on – are you ready? – apartments which he depicted as corrupters of society and destroyers of good neighborhoods, even though this had nothing to do with the issue before the Court. Sure enough, after the Euclid opinion came down and gave its imprimatur to zoning, zoning promptly became the subject of abuse as a tool of socio-economic segregation, used to keep immigrants and minorities from desirable areas. We recommend the discussion of this phenomenon in Dennis J. Coyle’s book, Property Rights and the Constitution (1993) at p. 22 et seq. 

         But all that does not do justice to zoning’s forgotten man, U.S. District Judge David Westenhaver who presided over the trial of Euclid, and who after holding zoning unconstitutional, concluded his opinion with the observation that the true purpose of zoning was to provide social and economic segregation; see Ambler Realty v. Euclid, 297 F. 307, 316 (N.D. Ohio 1924). Unfortunately, zoning is so used at times until this day. Thus, in Dews v. City of Sunnyvale, 109 F.Supp.2d 526 (N.D. Tex. 2000) the court found the local zoning scheme to be an illegal, invidiously racially discriminatory device that – in the court’s blunt words – was the equivalent to a sign reading “niggers keep out.” (Ibid at 533). 

        Does all this mean that we are doctrinally opposed to zoning? Not necessarily, though traditional, horizontal Euclidian zoning leaves much to be desired. It is difficult to see how allowing, say, some two-family homes, or a few convenience stores and cafes in single-family residential areas would corrupt the order of things. It seems to us that the steep price in money and municipal corruption exacted by so many municipal zoning practices may not be worth the benefit. The city of Houston has no zoning but it basically looks no different than other, similar cities. That fact makes one wonder what is actually being accomplished by zoning. A number of knowledgeable, respected scholars have made cogent arguments for the abolition of zoning, at least in its present form. It is certainly a valid question, that should be the subject of a thoughtful public debate, whether zoning and the myriad intrusive land-use regulations associated with it, that transfer virtually unlimited power over private housing choices and lifestyles into the hands of the lowest form of political life, are the way to go.  

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