Lisa C. Young.J.D. Candidate, Harvard Law School, May 2005. The author would like to thank Nick Turner for his patience and support.
Equality of opportunity is the next goal that civil rights activists must fight for. Anti-discrimination laws, even if aggressively enforced, can only go so far. Activists must strive to provide minorities with the same educational, employment, and advancement opportunities as the majority of Americans. As many studies and scholars have shown, opportunity is inextricably linked to where one lives in this country.1 Where a family lives largely determines family members' educational and employment opportunities as well as their safety and exposure to harmful environmental agents.2 Certain areas-especially urban neighborhoods and inner-ring suburbs-are poor, dangerous, riddled with environmental problems, and served by underachieving schools. Other areas-mostly in the suburbs-are prosperous, safe, and served by excellent public schools.3 Many of these problems are due to economic Page 668 segregation, but American metropolitan areas are also racially segregated.4
Racial segregation is an overlapping, but separate problem5 that deserves the attention of policy makers.6 Granted, policies that break down economic segregation might also help break down racial segregation. Minorities are disproportionately poor in this country, so any policy that benefits the poor should disproportionately benefit minorities. Because racial segregation is so severe and harmful in this country, however, policies designed to help the poor should include mechanisms to maximize the chance that poor minorities will benefit from the policy.
This paper will examine the role that land use laws play in the division of race and opportunity in United States metropolitan areas.7 Part II of this paper explains how exclusionary land use laws impose requirements on new housing developments that restrict the supply of housing and indirectly increase the demand of housing, thus driving up the cost of housing in opportunity rich areas. Since minorities are disproportionately poor in this country, these laws disproportionately limit the opportunities of minorities. This section will also examine how zoning laws can harm poor minorities by placing noxious land uses in or near minority neighborhoods. Part III of this paper discusses methods of using zoning to create opportunity. This final section explains how the pent- up value created by exclusionary zoning can be manipulated to create affordable housing in opportunity-rich areas and concludes by offering suggestions for how inclusionary zoning laws can be designed to effectively decrease both economic and racial segregation.
Zoning laws harm minorities and the poor in two ways. First, they impose restrictions and requirements on housing development in exclusive neighborhoods, driving up the cost of housing in these areas.8 Laws that have the effect of excluding racial minorities or low-income residents from a Page 669community are called "exclusionary zoning laws."9 Because minorities are disproportionately poor in this country, these laws exacerbate racial segregation. Second, some zoning laws harm poor and minority neighborhoods by allowing noxious land uses to be placed near or in their communities, driving minorities from their homes or harming their quality of life.10 Zoning laws that place undesirable land uses near or in minority or low-income communities are called "expulsive zoning laws."11
Certainly, not all zoning is harmful. The concept of zoning is rooted in the idea that certain land uses are incompatible.12 Historically, zoning proponents wanted to segregate the noise, fumes, odors, and pollution produced by commerce and industry and prevent these externalities from encroaching upon residential areas.13 Planning urban landscapes to protect the environment, reduce traffic congestion, assure proper sewage and potable water, promote safety, and separate certain land uses are laudable goals.14 Before zoning became popular, the common law doctrine of nuisance protected the quality of life in residential neighborhoods.15 Zoning provided a method of Page 670 institutionalizing these common law principles.16 Areas were divided into "zones" and each zone was matched with a proper land use.17
In the past, many zoning laws have been designed to separate racial minority neighborhoods from white neighborhoods.18 But, even zoning laws that were meant only to protect special characteristics of an area sometimes have the effect of increasing housing costs and excluding minorities and the poor from opportunity rich areas.19 Civil rights activists must clearly articulate and prove these harmful effects in order to fight these exclusionary laws.
The story of the "Chinese Laundry Laws" provides an apt example of how communities used zoning laws to exclude outsiders.20 In the late 19th Century, in San Francisco, Chinese immigrants ran the vast majority of the laundry services in the city, and these laundries served as sites for Chinese social gatherings and clubs.21 At this time, Chinese resentment and discrimination pervaded California.22 Spurred by this popular resentment, several municipalities passed laws that directly discriminated against the Chinese, but California courts struck these laws down.23
Soon thereafter, San Francisco's local government promulgated laws that sharply restricted the location and operation of laundry facilities in the city.24The laws were facially race neutral and their supporters claimed that the laws were based on the fact that laundries (like most buildings at that time) were made of wood and operated open fires, thus creating a fire hazard.25 All laundry operators were required to obtain certification from the Board of Fire Page 671Wardens and the Board of Supervisors.26
The Supreme Court initially upheld several of these laws, holding that they were within the scope of a local government's general police powers and noting that the restrictions formally applied to all laundry operators, not only those run by Chinese.27 However, in 1886, in Yick Wo v. Hopkins the Supreme Court reversed these earlier decisions and struck down a California laundry ordinance.28 Criticizing the blatantly discriminatory motivation for the laws and the discriminatory method the local boards used in handing out certificates, the Court held that the ordinance violated the Equal Protection Clause of the Fourteenth Amendment.29
Despite this brief triumph over exclusionary land use laws, the spirit of these laws appears again in modern exclusionary zoning. The Chinese laundry laws and today's modern exclusionary laws are both based on deference to local police power, homage to a community's "general welfare," and facial race neutrality. This trio has led, in modern times, to the successful exclusion of countless minorities from opportunity rich areas.
The Supreme Court's decision in Yick Wo spurred challenges in state courts to land use laws that prohibited "colored" people from moving into "white" neighborhoods and vice versa.30 Laws of this type were passed in the early 1900s across the United States, especially in the South.31 These laws were ostensibly race neutral because they prevented both races from living in an area designated for the other race.32 Supporters also asserted that these laws promoted the public's general welfare by maintaining peace and harmony that could not be achieved if different races lived in close proximity to each other.33 At this time, proponents of residential segregation could bolster these arguments with the "separate but equal" doctrine of Plessy v. Ferguson.34
The Supreme Court formally put an end to racially explicit exclusionary Page 672land use laws in its 1917 opinion, Buchanan v. Warley.35 In this case, a white man sued for specific performance of his contract to sell his property to a black man.36 Lower courts denied the plaintiff's action because a Louisville, Kentucky ordinance forbade "colored persons" from "occupying as a residence" property on street blocks where the majority of residents were white.37 The ordinance also forbade whites from moving into majority "colored" areas.38 Although the case could be considered an important advancement of civil rights, the court may have missed an important opportunity in this opinion.39 Rather than criticizing the municipality's fears of integration and condemning racial segregation...