Zoning’s Centennial, Part 3: Zoning was Contagious, but was it Constitutional?: A Series by John R. Nolon

[This post is part of an on-going series on the 100th anniversary of the first zoning law.  Links to previous posts in this series are at the bottom of this post.] 

 

 

Part 3

 Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

 

Zoning was Contagious, but was it Constitutional?

The first two blogs in this series discussed the adoption of the first zoning ordinance in 1916, and the subsequent delegation of land use control to local governments under an enabling act promulgated by the federal government in 1922. The second blog ended by describing the rapid spread of zoning under this enabling legislation, as well as a number of issues that zoning had to confront--not the least of which was whether it was constitutional.

By the mid-1920s, zoning had been challenged in several state courts with split results. A majority of the courts that considered early zoning laws agreed with State ex rel. Carter v. Harper (Wisconsin, 1923), which upheld “so-called zoning” against takings, equal protection, and due process claims. Several quotes from the case explain this result: In Harper, the court established that ”…the rights preserved to the individual by these constitutional provisions are held in subordination to the rights of society.”  Further, the case held that “[t]he purpose of the law is to bring about an orderly development of our cities….Everyone who has observed the haphazard development of cities…has appreciated the desirability of regulating the growth and development of our urban communities.” Ultimately, the court raised a critical question: “When we reflect that one has always been required to use his property so as not to injure his neighbors...can it be said that an effort to preserve various sections of a city [from harmful intrusions] is unreasonable?”

Other courts agreed with Judge Offutt, who wrote in Goldman v. Crowther (Maryland 1925): “This ordinance at a stroke arrests that process of natural evolution and growth, and substitutes for it an artificial and arbitrary plan of segregation….” He further noted “…it has never been supposed in this State that the police power is a universal solvent by which all constitutional guarantees and limitations can be loosed and set aside regardless of their clear and plain meaning…. [T]hose limits must bear some substantial relation to the public health, morals, safety, comfort or welfare.” Thus, “…so much of the ordinance as attempts to regulate and restrict the use of property in Baltimore City is void.” The court found that the ordinance itself did not contain adequate provisions demonstrating that it was bottomed on legitimate public interests. On its face, the separation of land uses into zones was void in Maryland.

Such was the legal background when, in my imagination, the CEO of Ambler Realty Co. awoke one morning in the early 1920s to learn from the local newspaper that its 68-acre property in the Village of Euclid, Ohio had been divided the night before into three separate zoning districts under the zoning ordinance adopted by the Village Board of Trustees. Outraged by this unprecedented interference with his industrial development plans and the resulting substantial diminution of the value of his property, he brought suit claiming that zoning, on its face, was a deprivation of private property without due process. The affected parcel had been listed and sold for industrial development. It was situated next to a railroad and in the “path of progressive industrial development.” Yet, the new zoning law limited its use, in substantial part, to residential and retail purposes at significantly lower market values. The question, wrote the U.S. Supreme Court, was whether “the ordinance is invalid, in that it violates the constitutional protection to the right of property in [Ambler Realty] by attempted regulations under the guise of the police power, which are unreasonable and confiscatory.”

The Court noted that ”while the meaning of constitutional guarantees never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operations.” Invoking the law of nuisance and the “painstaking considerations” found in the reports of various planning and land use commissions and experts, which concur in the view that the segregation of different land uses serve many public interests, the Court found zoning constitutional. And, it did so by firmly establishing the standard still used today in determining whether a zoning regulation is valid exercise of local police power: “The reasons supporting the separation of land uses could not be said to be clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.”

In this way, the judicial attitude toward zoning was fixed: courts would presume the constitutional validity of zoning, defer to the findings of local legislatures, and impose on the challenger a heavy burden of proving that zoning was unreasonable and arbitrary. However, when a property owner challenges zoning not on its face, as in these cases, but rather as applied to a particular parcel, it is somewhat easier to carry this burden of proof.  In Nectow v. City of Cambridge (1928), the Supreme Court invalidated a zoning ordinance that subjected the petitioner’s property to use restrictions that were unreasonable. The petitioner’s burden of proof was carried when it demonstrated to the satisfaction of the Court that “no practical use can be made of the land in question,” and that the use permitted “would not promote the health, safety, convenience, and general welfare of the inhabitants of that part of the defendant city….”

These bookend principles raised countless questions, the answer to which would have to wait two decades while land use law essentially slumbered during the Great Depression and World War II. At that point, after a decade of post-war development, the consequences of what became known as Euclidian Zoning could be assessed. Was the rigid separation of land uses into discrete zones effective or, in Judge Offutt’s terms, did it arrest “that process of natural evolution and growth” to the detriment of society?

For more information, see John Nolon, Comprehensive Land Use Planning: Learning How and Where To Grow.

Links to previous posts in the Zoning's Centennial series:

Part 1:  The Need for Public Regulation of Land Use:  The First Comprehensive Zoning Law

Part 2:  The Delegation of Legal Authority to Adopt Zoning