At Strong Towns, we talk a lot about zoning. Most people have a vague idea what it is, but where did it come from? Why do we do it? This is the first in a three-part series where we will examine the history of zoning, its growth throughout the last century, and its implications for building strong towns today.
Let’s start with a basic overview. Zoning is an umbrella term for a (usually) vast set of regulations that determine where you can build, what you can build, and what activities you can engage in on your property. Some common building elements that are covered by zoning include:
Setbacks (how far from the property line your building can be)
Lot coverage (how much of your land can be used for buildings)
The conditions above are generally accompanied by a host of additional rules. Do you want to start a coffee shop? Check your zoning. Looking to build an addition on your house? Check your zoning. Planning to construct a nuclear reactor in the basement? You get the idea.
To understand the legal underpinnings of US zoning, it is important to understand two legal concepts: nuisance and police power. In essence, nuisance law concerns cases where one person’s activity has a negative effect on another person’s property. Under nuisance law, if you dump toxic chemicals that leach onto my land, I can sue you in court for damages.
Police power refers to the ability of a government to regulate the affairs of its citizens in order to ensure the “health, safety, morals, and general welfare” of its people. That phrase is important and one we will revisit on occasion throughout this series. Police power is important because it represents a proactive action to prevent or eliminate harm. For zoning, the idea is that a city can regulate the use of land in order to avoid the nuisance conditions before they happen. This is a concept we will investigate further in part two of this series.
Given its theoretical underpinnings in nuisance and police power, modern zoning was not invented out of thin air. There are many examples of regulations, foreign and domestic, even from pre-Constitutional times, dictating the legal use of real property and the form of buildings thereon. James Metzenbaum, lawyer for the Village of Euclid, OH (which we’ll revisit momentarily) lists several precedents in a 1957 article on the history of zoning. Gordon Whitnall points to an 1885 ordinance banishing washhouses from certain parts of Modesto, CA as the first true American zoning ordinance (Whitnall, Gordon. History of Zoning. The Annals of the American Academy of Political and Social Science. May 1931). Germany is often cited as the model on which American zoning was built, having had zoning ordinances since the 1870s.
Euclid, OH is significant in the history of zoning because a challenge to its zoning ordinance was the case under which the US Supreme Court granted its official stamp of approval to zoning powers. Euclid was not the first municipality to enact a comprehensive zoning ordinance, and not even the first one to be challenged in court. It was simply the one that made it to the Supreme Court.
It is notable that Mr. Metzenbaum, the lawyer who argued in favor of zoning for Euclid before the US Supreme Court, ends his article by pointing to several cases where a zoning ordinance was upheld by courts but where he felt the city had abused its zoning power. Like Dr. Frankenstein’s monster, zoning had taken on a life of its own.
Many proponents of zoning, at its conception and even now, root their arguments squarely within the language of the police power. If you look at your city’s zoning code, you will undoubtedly find the magic police power words “health, safety, and welfare” in the opening section. (We’ve generally dropped the part about morals, recognizing that to be troublesome.) As an example, the threat of fire is often given as a reason for setback requirements--by separating buildings from each other, the citizenry is safer.
Like most systems, zoning has become far more complicated over time. With each new regulation, new justification for even more regulation tends to arise. Zoning’s ability to proactively curb nuisances makes it an ideal outlet for cities to eliminate the presence of unwanted activities, hazards, and even people. Modern zoning codes can span hundreds of pages and dictate everything from whether you can own a chicken to whether you can hang laundry out to dry.
In part two (which will be published in a couple weeks), we’re going to examine how zoning has been used historically in the United States and how this relates to its supposed grounding in the police power. (Spoiler alert: the connection is often tenuous.)
(Top image source: Manitoba Historical Maps)