Abolishing exclusionary zoning: A natural policy alliance for environmentalists and affordable housing advocates

Boston College Environmental Affairs Law Review, 2003 by Liberty, Robert L

Abstract: Exclusionary zoning limits residential development over large areas, and even entire cities or towns, to single-family housing on large lots. Exclusionary zoning is unfair to people and families of modest means (many of whom are members of racial or ethnic minorities) because it sharply limits where they can live and thus their access to jobs, education, and a good quality of life. For these reasons, exclusionary zoning was found to violate the New Jersey Constitution in the Mount Laurel case. But exclusionary zoning is also an environmental problem because it is a primary ingredient of the accelerating pace of urban and suburban sprawl. As a consequence, it is a major contributor to increased air and water pollution and habitat fragmentation. The Oregon planning program demonstrates how the abolition of exclusionary zoning promotes a more equitable range of housing choice in suburbs and simultaneously reduces environmental degradation associated with low-density urbanization.

INTRODUCTION: THE ORIGINS AND PRACTICE OF CLASS SEGREGATION BY RESIDENTIAL ZONING

The zoning in the suburb of the Township of Mount Laurel, which was challenged by the South Burlington County chapter of the NAACP in May, 1971, was typical of suburban zoning then and now.1 Most of the township's land was zoned for single-family homes on half-acre lots; apartments, duplexes, and mobile homes were prohibited.2 This kind of zoning practiced city-wide is known as "exclusionary zoning."3

In the first two decades of the twentieth century, city zoning was used to separate incompatible uses-noisy and polluting industrial and commercial uses were to be kept out of residential areas.4 But from the beginning, many city planners treated apartments and other kinds of multifamily housing as equally noxious, a threat to property values and the public welfare.5

State supreme court decisions upholding exclusionary zoning featured paeans to the superiority of single-family detached houses as the best way to advance civic virtue and public health.6 In many cases, this zoning had explicitly racist origins.7

Only rarely did courts acknowledge the class- and race-based animus underlying residential zoning, and question its constitutionality:

And no gift of second sight is required to foresee that if this Kentucky [racial zoning] statute had been sustained [by the Supreme Court in Buchanan v. Warley], its provisions would have spread from city to city throughout the length and breadth of the land. And it is equally apparent that the next step in the exercise of this police power would be to apply similar restrictions for the purpose of segregating in like manner various groups of newly arrived immigrants. The blighting of property values and the congesting of population, whenever the colored races or certain foreign races invade a residential section, are so well known as to be within judicial cognizance.

. . . .

. . . The purpose to be accomplished is really to regulate the mode of living of persons who may hereafter inhabit it. In the last analysis, the result to be accomplished is to classify the population and segregate them according to their income or situation in life.8

The decision of the district court in Ambler Realty Co. v. Village of Euclid was overturned by the Supreme Court in 1926 in the decision confirming the constitutionality of municipal zoning.9 Unlike the district court, the Supreme Court shared the prevailing view of apartments as a kind of spreading blight on the public good and property values.10 In addition, the segregation of Americans by class and race fostered by exclusionary zoning was powerfully reinforced by the 1938 Federal Mortgage Insurance Underwriting Manual11 and other public and private guidance.12

In the 1960s and 1970s, the impacts of class-based low-density suburban zoning on access of lower-income Americans to affordable housing, jobs, and schools became the focus of judicial review at the federal and state level.13

Those cases show the continued growth in residential minimum lot sizes that allowed segregation of the highest income suburbs.14 Examples include: one-acre minimum lot size in Bilbar Construction Co. v. Board of Adjustment15 and Agins v. City of Tiburon;16 three-acre minimum lot size in Appeal of Kit-Mar Builders, Inc.;17 four-acre minimum lot size in National Land & Investment Co. v. Kohn;18 five-acre minimum lot size in Robert E. Kurzius Inc. v. Incorporated Village of Upper Brooksville;19 and ten-acre minimum lot size in In re Application of Wetherill.20

And the lot size minimums continue to grow, with ten-, twenty-, and even forty-acre lots in new ranchette subdivisions around the country.21 If these trends continue, then an increasing share of our urban regions will be off limits to Americans who cannot afford a big house on a big lot.

In addition to judicial review, the social and political effects of exclusionary zoning have also been the subject of scholarly and political debate.22 Only recently, however, have the impacts of exclusionary zoning on the environment been examined.