Discriminatory Aspects of Zoning

Initial reasons for zoning

"...zoning caught on as an effective technique to further an eminently conservative purpose: the protection of the single-family house neighborhood. In spite of all the subsequent embellishments that objective remains paramount."¹

Initially the primary concern of the new zoning ordinances was to protect stable residential areas against incursion of commercial, industrial and even multi-family uses. As described in the Zoning Primer, published after the first comprehensive zoning ordinance (New York City, 1916) and the landmark Standard State Zoning Enabling Act (1922), the concern was stated as follows:

"Suppose you have just bought some land in a neighborhood of homes and built a cozy little house. There are two vacant lots south of you. If your town is zoned, no one can put up a large apartment house on those lots, overshadowing your home, stealing your sunshine and spoiling the investment of 20 years' saving. Nor is anyone at liberty to erect a noisy, malodorous public garage to keep you awake nights of to drive you to sell out for half of what you put into your home."²

These concerns were real and not unjustified. Thus, zoning was primarily intended initially to prevent undesirable uses from coming into stable residential areas. There was such concern over this possibility, and so many residential areas had been despoiled by inappropriate construction, that between 1916 and 1929 zoning was established in almost every community of any size. Little opposition was found to the new laws; rather there was almost universal support.

In large part zoning was a recognition that the rights of the neighborhood took precedence over the rights of individual property owners, and an acceptance of this fact. Neighborhood zoning was not seen as an infringement on property rights, but a reassertion of their importance on a collective level. It was also good for property owners individually, for stability of property values resulted directly from the protection offered through zoning.

The validity of zoning was established in a landmark Supreme Court decision in 1926, Euclid v. Ambler Realty Co.,³ in which it was determined that the exclusionary nature of zoning was appropriate and in the public interest as a means to reduce nuisances, and as such overrides the interests of individual property owners. This case almost by itself guaranteed the validity of zoning as a rightful use of the state's police power, and led to its importance as the most significant tool of land use, and of planning, yet devised. And it was popular not because of its sophistication, but because of its simplicity. The 1926 Supreme Court case upheld that land use could be controlled, and that "nuisance" uses could be kept out of designated areas. The question became, What determines a nuisance use? Alfred Bettman, a zoning advocate, felt zoning clarified this issue:

"The zone plan, by comprehensively districting the whole territory of the city and finding ample space and appropriate territory tor each type of use, is decidedly more just, intelligent, and reasonable than the system, if system it can be called, of spotty ordinances and uncertain litigations about the definition of a nuisance."⁴

Later cases determined that zoning could be used to control minimum lot sizes (Simon v. Town of Needham⁵) and minimum floor sizes (Dundee Realty Co. v. City of Omaha⁶), both illustrating that zoning was being used to prop up property valuations.

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¹Babcock, Richard F. The Zoning Game: Municipal Practices and Policies. Madison, WI: University of Wisconsin Press, 1966. p. 115.
²Zoning Primer, p. 2.
³Village of Euclid v. Ambler Realty Co., 272 US 365, 1926.
⁴Babcock. p. 4.
⁵Simon v. Town of Needham, 42 NE2d 516, 1942.
⁶Dundee Realty Co. v. City of Omaha, 13 NW2d 634, 1944.

Suggested other pages...

Purposes of Zoning	Brief History of Zoning