Zoning

Premier land-use regulation method in the United States, which divides urban areas into different sectors or zones, with different uses and regulations and requirements.

The police powerPolice powers, which is the right of government to regulate public health, safety, and welfare, gives zoning its legitimacy. State constitutions and statutes enable local governments to create their own zoning ordinances. Some states also created state zoning laws. The exact limits of the zoning power may seem fluid in time and place. Zoning power is ultimately what the courts determine. Conservative courts tend to limit the zoning power, and liberal courts tend to expand it.

Euclid v. Ambler Realty Co.[case]Euclid v. Ambler Realty Co.[Euclid v. Ambler Realty Co.] (1926) was one of the most significant legal decisions by the Supreme Court in the history of zoning. Chief Justice George Sutherland concluded that each community had the right and responsibility to determine its own character. Zoning was a valid use of the police power as long as it did not disturb the orderly growth of the region or the nation. Justice Sutherland wrote, “But this village, though physically a suburb of Cleveland, is a separate municipality, with powers of its own and authority to govern itself…The will of its people determines, not that industrial development shall cease at its boundaries, but that such development shall proceed between fixed lines.”

The Court made it clear that a municipality may determine the nature of development within its boundaries and plan and regulate the use of land as the people within the community may consider it to be in the public interest. Justice Sutherland introduced the concept that a community must also relate its plans to the area outside its own boundaries. Thus, the Court sustained a village zoning ordinance that prevented Ambler Realty from building a commercial structure in a residential zone. This case first established the constitutionality of all parts of comprehensive zoning.

The courts continued to support the rights of municipalities to zone, and conventional “Euclidean zoning” became almost universal in both urban and suburban areas. The power to zone as well as to use other, more flexible land-use controls, has an ideological dimension because it conflicts with the ability of property owners to use their property as they see fit. Typically, zones have been devoted to commercial, industrial, and residential uses, with different density requirements and other regulations.

Relationship to Taking Cases

Takings clauseIn First English Evangelical Lutheran Church of Glendale v. County of Los Angeles[case]First English Evangelical Lutheran Church of Glendale v. County of Los Angeles[First English Evangelical Lutheran Church of Glendale v. County of Los Angeles] (1987), the Court ruled that if landowners had been unduly burdened by land-use control regulations, they should be compensated by the government. Before this case, it was understood that a property owner might sue to have a regulation overturned. However, it was not required that compensation be paid for losses incurred while the regulation was actually in force. The Court’s decision hinged on the last sentence of the Fifth Amendment, “nor shall private property be taken for public use, without just compensation.” Undue restriction of use in the Court’s view met the meaning of the word “taken” and therefore required compensation. Eventually when the case was sent back to a lower court, it was found that the taking had not occurred and that the church was not entitled to compensation. Despite the lower court’s decision, the Court’s ruling meant that a government might be forced to pay a large judgment if its actions were found to constitute a taking. Some feared the possibility that local governments might have to pay large judgments to litigants who could prove that zoning power had been overused.

Later, in Lucas v. South Carolina Coastal Council[case]Lucas v. South Carolina Coastal Council[Lucas v. South Carolina Coastal Council](1992) and Dolan v. City of Tigard[case]Dolan v. City of Tigard[Dolan v. City of Tigard] (1994), the Court upheld the limiting of the government’s authority to restrict the specific uses to which privately owned land could be devoted. For example, one opinion in the Lucas decision suggested that the one instance in which there might not need to be compensation (even though the property owner was deprived of all property use) was if that use might violate an established nuisance law. Some authorities speculated that the legal basis of zoning might be trimmed back to being totally dependent on nuisance law. Land-use regulations in Hadacheck v. Sebastian[case]Hadacheck v. Sebastian[Hadacheck v. Sebastian] (1915) had evolved from nuisance law but had been expanded well beyond these limited origins to a much more extensive notion of the public interest.

Aesthetics and Exclusionary Zoning

Many legal experts believe that zoning and other police power regulations may not be adopted when their sole basis lies in aesthetics. Proponents of this theory cite Welch v. Swasey[case]Welch v. Swasey[Welch v. Swasey] (1909) and decisions rendered by most of the state supreme courts. However, this view was challenged in Berman v. Parker[case]Berman v. Parker[Berman v. Parker] (1954), in which Justice William O. Douglas, speaking for the unanimous Court opinion, stated, “If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.” However, this case involved an effort to enjoin condemnation to preserve the natural beauty of urban renewal property. The Court was not confronted with a case in which police power was exercised in the form of a zoning ordinance and in which no compensation was paid. However, state courts have applied Berman in zoning cases. Douglas clearly affirmed that citizens need not tolerate an unsightly community and may take legal steps to change it.

Restrictive covenantsRestrictive convenants, which discriminate against minority groups through race-based zoning ordinances, were declared unconstitutional by the Court in 1927 in Buchanan v. Warley[case]Buchanan v. Warley[Buchanan v. Warley]. A Louisville, Kentucky, ordinance regulated the occupancy of city blocks; people of color could not reside in blocks where greater numbers of dwellings were occupied by whites and vice versa. This use of the police power was a violation of the Fourteenth Amendment because it prevented the use of property and deprived its owner of use without due process.

Years later the Court held in Arlington Heights v. Metropolitan Housing Development Corp.[case]Arlington Heights v. Metropolitan Housing Development Corp.[Arlington Heights v. Metropolitan Housing Development Corp.] (1977) that a zoning ordinance does not necessarily violate the Constitution by restricting minority and low-income people; it must be shown that there was a deliberate exclusionary intention.

Zoning Summary