How Zoning Won—and Why It’s Now Losing Ground

This article is reprinted with permission from Bloomberg CityLab, where it originally appeared.

Of all the society-shaping US Supreme Court decisions of the 20th century, from Brown v. Board of Education to Roe v. Wade and beyond, one lesser-known ruling has had the greatest impact on the American landscape—not only the physical character of growth and development, but how we live and work, the lengths of our commutes, and the affordability of homes.

In Village of Euclid v. Ambler Realty Co., a suburb just east of Cleveland barred a real estate company from using their land for industrial use; the developers sued and brought it all the way to the nation’s highest court, which affirmed that municipalities could impose zoning to organize development, as a police power.

The 1926 ruling—garnished by Justice George Sutherland’s comment that a factory shouldn’t be in a residential area any more than “a pig in the parlor”—gave constitutional blessing to the establishment of permissible uses on specific properties, seen in color-coded maps to this day. From then on, the template for the built environment was set: residential homes in one part of town, commercial and retail in another, and manufacturing and industrial uses in yet another.

Codifying this separation of uses led to the unique phenomenon of American suburban sprawl, essentially requiring the use of the automobile to get around as the areas for life’s functions spread further apart. It also locked in the hegemony of the single-family home, at the expense of more affordable multifamily housing.

Now, on the 100th anniversary of the decision, what has come to be known as Euclidian zoning is under siege. Progressives and pro-housing advocates in the Yes in My Backyard (or YIMBY) movement have joined defenders of property rights and free-market libertarians in declaring zoning as hopelessly outdated. This somewhat unlikely alliance blames local land use regulations for blocking apartment construction, exacerbating the housing crisis and perpetuating racial disparities in home ownership. Zoning is one of the big villains in Abundance, Ezra Klein and Derek Thompson’s call to reassess the regulations that hinder infrastructure projects.

Some 33 states have passed reforms to allow more density in zones once reserved for single-family homes only, according to the Mercatus Center at George Mason University, which co-hosted a symposium reevaluating the Euclid case last month, with the Pacific Legal Foundation and the Journal of Law, Economics and Policy. Thousands of communities have re-legalized mixed-use development as well, seeking to blend housing with shops and restaurants in walking distance—the kind of neighborhood that Euclid made illegal.

The message is clear: The rules haven’t kept up with the times. And for some, they weren’t such a good idea in the first place.

To be fair, things were pretty messy at the turn of the 20th century, prompting local governments to try to impose order. During the Industrial Revolution, manufacturing facilities were marbled into fast-growing cities like Pittsburgh and Cleveland, leaving smelters and tanneries and brickyards next to worker housing and residential neighborhoods. Immigration and a rural-to-urban migration filled urban neighborhoods with people crowded into tenement houses. Density and mixed-use became associated with dangers to public health.

Beginning in earnest around 1904, municipalities endeavored to tidy up—“a place for everything, and everything in its place,” said Dartmouth professor emeritus and keynote presenter William Fischel, whose 2015 book Zoning Rules! is cited in the early pages of Abundance. (A trivia fact for the next cocktail party: The basic framework of zoning was imported, like the delicatessen, from Germany.) At the same time, Henry Ford’s Model T opened up all kinds of land for different forms of development, Fischel said. The new frontier needed to be organized.

There were also pernicious motivations. As George Mason University professor Olivia Gonzalez pointed out, the Cleveland area in the 1920s was rife with racist policies, like covenants and sundown curfews, but also attempts to control who lived where, through local rules forbidding multifamily housing, small lots, and even alleys.

The fundamental appeal of zoning was that it served multiple aims. Progressives, putting their faith in experts, saw it as a way to make America healthy again, by spreading out and keeping polluting industries away from residential areas; even as that stirred up worries about planned societies and socialism, the US Chamber of Commerce and the commerce secretary and future president Herbert Hoover backed it as good for business.

Euclid wasn’t the first US city to implement zoning: New York City passed the first citywide ordinance in 1916. But the village was an especially enthusiastic early adopter. Its founders included a bunch of surveyors from Connecticut, who had a thing for geometrical arrangements and named the town after the Greek mathematician. Euclid’s response to Ambler’s lawsuit was that the local government was doing what everyone else was doing, guiding growth with practical principles.

Justice Sutherland agreed, characterizing an apartment building in a single-family neighborhood as a sinister “parasite”—a line that planted seeds for the bias and fear related to density that endures to this day. A central theme of NIMBYism, after all, is that new housing is a threat to community well-being, like soot from smokestacks.

With the Supreme Court’s endorsement, zoning was off and running, through the development of single-family suburbs like Levittown and beyond. Around 1970, as Fischel noted, land use regulation got another powerful ally in the form of the growth management movement, with its urban growth boundaries and elaborate environmental protocols aimed at preserving wetlands and open space.

Then zoning came face to face with affordability.

In my 2006 book This Land: The Battle over Sprawl and the Future of America, I predicted that compact, walkable neighborhoods would become more appealing as residents in far-flung, car-dependent subdivisions got tired of paying so much for gasoline. Today the more existential dilemma is that millions of people can’t afford a home or pay the rent. Desirable areas are dominated by single-family homes on large lots, fiercely defended by the current occupants against further development—those parasite apartment buildings—that could accommodate a wider range of incomes. In this view, Euclidian zoning has been weaponized as a tool to lock in the status quo.

In a reveal of how entrenched zoning has been, the regulatory regime has only recently been effectively challenged. Credit goes to YIMBYism and the abundance movement, as well as scholars like Harvard’s Edward Glaeser, who has documented how restrictive land use regulations are stifling urban economies, for finally bringing about what Charles Gardner, senior research fellow at the Mercatus Center, calls “the great land use realignment.”

In addition to the zoning and code reforms already enacted in those 33 states, some 200 more bills have been introduced so far this year, he said. The measures—allowing accessory dwelling units, reducing minimum parking requirements, banning single-family-only zoning, increasing density at transit stations, and streamlining permitting—are getting support in red and blue states alike, including Utah, Texas, Montana, and Indiana.

“It’s a genuine groundswell,” Gardner said, comparing zoning reform efforts to the growth management movement of the 1970s that Fischel referenced. “We might look back on this as a transformative time.”

George Washington University’s Sara Bronin, founder of the National Zoning Atlas, said the first step is to figure out what’s actually in place in the 9,000-plus jurisdictions her team has studied. “We now have the receipts,” she said. “Zoning is here to stay. Our question is how do you make it better.”

But free-market libertarians don’t want to just tweak zoning—they’d rather see Euclid overturned. (Mind you, this was a symposium that handed out keychains with a plastic cut-out likeness of Milton Friedman.) Just like some believe all zoning is racist, these property rights defenders say all zoning can be seen as a regulatory taking in violation of the 5th Amendment (“nor shall private property be taken for public use, without just compensation”).

The standard established in the 1978 case Penn Central Transportation v. City of New York is that regulation of land and property is permissible as long as it is reasonable. But an increasingly conservative Supreme Court has been expanding the definition of what constitutes a taking, in cases like Nollan v. California Coastal Commission, Dolan v. City of Tigard, and Sheetz vs El Dorado County. A free-market dream would be a new legal challenge that would force local governments to broadly reimagine how they manage growth and development.

A seismic overturning may not be necessary. Legislative action is clearly prompting a major overhaul of Euclidian zoning, in a nice reflection of democracy’s push and pull. When it comes to land policy, a little fluidity is a virtue—an interplay between foundational principles and adjustments, given how times have changed. So keep the critiques of zoning coming. As a practical matter, a more perfect system awaits. It just might be a better version of everything in its place.

Anthony Flint is a senior fellow at the Lincoln Institute of Land Policy, host of the Land Matters podcast, and a contributing editor of Land Lines.

Lead image: Kirkland Urban, a high-density, mixed-use development in Kirkland, Washington, where zoning reform has been a hot topic in recent elections. Credit: Colleen Michaels via iStock Editorial/Getty Images Plus.