Monday, February 1, 2016

Zoning’s Centennial, Part 4: The Unintended Consequences of Euclidian Zoning: A Series by John R. Nolon

Part 4 

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center


The Unintended Consequences of Euclidian Zoning


Following the decision in Euclid v. Ambler Realty Co. in 1926, land use lawyers and planners celebrated the advent of a new, comprehensive method of shaping human settlements and protecting investments in the built environment. Their excitement was short-lived.  In 1929, the stock market crashed and land development moved at a snail’s pace until the end of World War II. The growth rate in housing units in the 1950s increased by 40% over the 1940s, putting much more pressure on the land use regulatory system at mid-century. We had to wait until this growth was absorbed to see what zoning had wrought.

The Standard Zoning Enabling Act (SZEA), as adopted by most state legislatures, seemed simple enough. It permitted local governments to separate land uses into use districts or zones within which they regulate the construction and the use of buildings or land. The Act stipulated that “regulations shall be uniform for each class or kind of buildings throughout [each] district.” This was in contrast to existing patterns of land use in the 1920s, which were disorganized and chaotic in urban areas, a consequence of the unplanned results of countless unguided private sector land use decisions.

What would neighborhoods look like after being filtered through a zoning ordinance that channeled like-kind land uses into geometric-shaped districts, governed by bulk and area standards, limiting lot sizes and coverage, and building heights and set-backs: standards that must apply uniformly to all parcels within the district? Much of what concerned zoning in its inception had to do with civil engineering, fire-safety, and related concerns, such as ensuring fire truck access to buildings during fires, designing streets and driveways to reduce accidents, and limiting house heights to 35 feet, so that they were tucked under the tree canopy of the neighborhood to preserve community character.

Euclidian zoning seemed well named, as lawyers and planners first drew the shapes this law seemed to dictate. The geometry was not flexible, due in part to the adherence of judges to Dillon’s Rule, under which courts were obliged to read literally the laws that delegate power to local governments. How much uniformity was optimal; what would the legacy of uniformly regulated neighborhoods be? 

After World War II, growth pressures in suburban communities intensified due to the return of the soldiers, affordable federal mortgages, and the 1956 Federal Highway Act that allowed city dwellers to abandon cities in record numbers. This migration rapidly revealed the designs that zoning created. Much of the land in developing communities was zoned for single-family housing on relatively large lots, large enough to permit builders to use septic systems and individual wells, thereby reducing the capital infrastructure costs to the municipality. These mostly single-family homes were uniformly sized and their shape was dictated by zoning’s area and bulk requirements.  

There was a certain sameness to many of these emerging neighborhoods. As they expanded outward, commutes lengthened, increasing vehicle miles travelled and CO2 emissions; impermeable lot coverage intensified stormwater runoff and flooding; open space shrunk and, with it, wetlands and habitats; housing became less affordable, creating racially imbalanced neighborhoods; the lack of workers repelled employers, reducing jobs and limiting property tax revenues; municipal services became more expensive; and the character of communities changed, not always to the liking of those who lived there. NIMBYism set in and land use lawyers and planners began to tweak the legal framework to achieve more flexibility in permitted development.

As the century progressed, zoning’s weaker sibling--land use planning--became a larger factor in land use law.  The adverse effects of promulgating the Standard City Planning Enabling Act (SCPEA) after, instead of before, the SZEA were better understood. Day-to-day zoning decisions needed to be guided by a vision for the city or town’s future;  adopting a comprehensive land use plan gave citizens and local officials a method of realizing that vision, in addition to mitigating the unintended consequences of Euclidian zoning. Some states stipulated that the local planning commission or a special advisory committee should formulate and adopt the comprehensive plan, insulating the planning process somewhat from electoral politics and tying zoning’s conformance to an apolitical document. Communities that took planning seriously and conformed their zoning to their plan learned that they had protected zoning from a variety of challenges, including due process and ultra vires claims. If a zoning provision accomplishes a comprehensive plan objective, it is less likely to be invalidated for failing to further a legitimate public objective or failing to be within the legal power of the locality to enact.

That zoning was to reach beyond civil engineering and fire safety was embedded in the SCPEA. As a predicate for zoning, it provided that plans will, “in accordance with present and future needs, best promote health, safety, order, morals, convenience, prosperity, and general welfare as well as efficiency and economy in the process of development….” The purposes of planning were broad. Zoning had to conform. The stage was set for the adoption of flexible zoning and land use strategies that moved beyond the rigid contours of Euclidian zoning.

The Neo-Euclidian era began as zoning turned 40, roughly a decade after the post-war experiments with the original model. Its failures led to a variety of legal remedies; all experiments in search of proper development patterns. Courts slowly moved past Dillon’s Rule and some state legislatures changed the law, calling for a liberal interpretation of the strict language of the enabling act, while others delegated new powers to localities to mitigate the unintended consequences of the Euclidian era.

For more information, see John Nolon, Comprehensive Land Use Planning: Learning How and Where to Grow, 13 Pace N.Y. L. Rev. 151 (1993-94).


Links to previous posts in the Zoning Centennial’s 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

 Part 3: Zoning Was Contagious, But Was It Constitutional?

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