Singling Out Single-Family Zoning

• Author: John Infranca
• Pages: 659-722

ARTICLES

Singling Out Single-Family Zoning

JOHN INFRANCA*

Single-family zoning is increasingly under attack in both the popular

press and scholarly journals. Critics highlight how zoning districts that

allow only detached, single-family homes exacerbate racial and eco-

nomic segregation and perpetuate wealth disparities. Although a few

local and state legislatures have eased regulations to permit denser de-

velopment in existing single-family neighborhoods, such neighborhoods

remain the dominant component of American zoning. The power of local

governments to impose zoning derives from the police power—tradition-

ally understood as the power to legislate in furtherance of health, safety,

and the public welfare. These traditional concerns seem to provide little

justification for prohibiting duplexes and triplexes in single-family

enclaves. Recognizing this, many early zoning proponents feared that

courts would strike down exclusively single-family districts. They con-

fronted criticism that such zoning was merely aesthetic in nature and any

actual benefits it conferred were problematically limited to those wealthy

enough to live in a single-family home.

This Article provides an intellectual and legal history of single-family zon-

ing districts. While others have documented the history of zoning generally,

the discrete justifications for single-family districts have not been closely

examined. This Article explains how a number of prominent early supporters

of zoning, through writings and speeches, formulated distinct arguments in

defense of single-family districting and refined those arguments in the face of

legal challenges. Supporters justified single-family zoning as one component

of a comprehensive zoning regime grounded in careful consideration of a

community’s existing needs and future demands. Because comprehensive

zoning itself constituted a valid exercise of the police power, they argued, it

rendered valid individual components, including single-family districts, that

may not have been independently justified.

* © 2023, John Infranca. Thanks to Dylan Akers, Michael Buccino, Mitchell Clark, Ronnie Farr,

Abigail Kaelberer, and Marissa Persichini for excellent research assistance and to Lillie Cox, Greg

Ewing, and Steven Keren for tracking down sources. Molly Brady, Stephen Cody, Nestor Davidson, Lee

Fennell, Sonia Hirt, Ezra Rosser, and Rich Schragger provided helpful comments. This Article also

benefited from comments received during presentations at the Annual International and Comparative

Urban Law Conference; the Association for Law, Property and Society Annual Meeting; the Law and

Society Association Annual Meeting; and a Boston College Law School faculty workshop. Thanks to

the Charles P. Kindregan Scholarship Award for supporting research related to this project and to the

staff and editors of The Georgetown Law Journal for their excellent work. A special thanks to Dana,

Erin and Sandy Braatz for invaluable support during the early research and writing.

659

Little contemporary zoning, however, reflects the comprehensive

approach espoused by these early proponents. This reality suggests that

even the fragile, early legal arguments for single-family districting can-

not withstand critique. By carefully documenting the intellectual and

legal history of single-family zoning, this Article sharpens contemporary

criticism and can inform the efforts of zoning reformers. Singling out sin-

gle-family zoning will enable scholars, reformers, and courts to both

unbundle a particularly questionable element of zoning and reemphasize

the importance of a more modestly comprehensive approach to zoning.

TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 661

I. THE SHAKY FOUNDATION OF SINGLE-FAMILY ZONING . . . . . . . . . . . . . . . . 666

A. QUESTIONING AN AMERICAN OBSESSION . . . . . . . . . . . . . . . . . . . . . . 666

B. SOCIAL AND CULTURAL CONTEXT . . . . . . . . . . . . . . . . . . . . . . . . . . . 672

II. THE FRAMING OF SINGLE-FAMILY ZONING. . . . . . . . . . . . . . . . . . . . . . . . .

.

676

A. EARLY TWENTIETH-CENTURY CONCEPTIONS OF THE POLICE POWER 677

B. PRE-ZONING LAND-USE CONTROLS . . . . . . . . . . . . . . . . . . . . . . . . . . . 679

C. THE DILEMMA OF RESIDENTIAL DISTRICTING. . . . . . . . . . . . . . . . . . . 682

1. Concerns Regarding the Police Power . . . . . . . . . . . . . . 683

2. Concerns Regarding Equal Treatment . . . . . . . . . . . . . . 688

D. THE IMPORTANCE OF COMPREHENSIVENESS. . . . . . . . . . . . . . . . . . . . 696

III. SINGLE-FAMILY ZONING IN THE COURTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 700

A. THE EARLY 1920S: ZONING ON THE RAZOR’S EDGE. . . . . . . . . . . . . . . 701

B. EUCLIDEAN AMBIGUITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 708

C. SOLIDIFYING THE SINGLE-FAMILY DISTRICT. . . . . . . . . . . . . . . . . . . . 711

IV. REFORMING SINGLE-FAMILY ZONING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717

A. EMPHASIZE COMPREHENSIVE PLANNING AND ZONING . . . . . . . . . . . . 717

B. CONSTRAIN THE SINGLE-FAMILY PRESERVE . . . . . . . . . . . . . . . . . . . . 719

C. PLAN AT A REGIONAL LEVEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 720

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722

660 THE GEORGETOWN LAW JOURNAL [Vol. 111:659

INTRODUCTION

In the court of public opinion, single-family zoning faces the fiercest test in its

century-long existence. Headlines declare “Americans Need More Neighbors,”

1

Editorial, Americans Need More Neighbors, N.Y. TIMES (June 15, 2019), https://www.nytimes.

com/2019/06/15/opinion/sunday/minneapolis-ends-single-family-zoning.html (praising Minneapolis’s

decision to eliminate exclusively single-family zoning districts).

“America’s Future Depends on the Death of the Single-Family Home,”

2

Tanza Loudenback, America’s Future Depends on the Death of the Single-Family Home, BUS.

INSIDER (Dec. 4, 2017, 1:50 PM), https://www.businessinsider.com/us-housing-crisis-homeownership-

single-family-home-2017-12 [https://perma.cc/ERL3-EY6G].

and “It’s

Time to Abolish Single-Family Zoning.”

3

Charles Marohn, It’s Time to Abolish Single-Family Zoning, AM. CONSERVATIVE (July 3, 2020,

12:01 AM), https://www.theamericanconservative.com/urbs/its-time-to-abolish-sing le-family-zoning/

[https://perma.cc/77N2-NQTW].

The roots of single-family zoning (and

much of zoning more generally) in efforts to exclude on the bases of race, ethnicity,

and class are increasingly widely discussed,

4

See Emily Badger & Quoctrung Bui, Cities Start to Question an American Ideal: A House With a

Yard on Every Lot, N.Y. TIMES: THE UPSHOT (June 18, 2019), https://www.nytimes.com/interactive/

2019/06/18/upshot/cities-across-america-question-single-family-zoning.html (discussing how concerns

over housing affordability, racial inequality, and climate change have led to a reckoning with single-

family zoning). See generally RICHARD ROTHSTEIN, THE COLOR OF LAW: A FORGOTTEN HISTORY OF

HOW OUR GOVERNMENT SEGREGATED AMERICA (2017) (examining the role of land-use regulations,

including single-family zoning, in establishing and exacerbating segregation).

as are the ways in which this zoning

preserves segregated housing patterns and exacerbates racial wealth disparities.

5

See Michael Manville, Paavo Monkkonen & Michael Lens, Viewpoint: It’s Time to End Single-

Family Zoning, 86 J. AM. PLAN. ASS’N 106, 106–07, 109 (2020) (discussing relationship between single-

family zoning and segregation and housing affordability); Jake Wegmann, Viewpoint: Death to Single-

Family Zoning . . . and New Life to the Missing Middle, 86 J. AM. PLAN. ASS’N 113, 117 (2020) (“For

decades planners have been at the forefront of lambasting the most destructive consequences of single-

family zoning, from automobile dependence to racial segregation.”); see also Katherine Shaver, Single-

Family Zoning Preserves Century-Old Segregation, Planners Say. A Proposal to Add Density Is

Dividing Neighborhoods., WASH. POST (Nov. 20, 2021, 6:00 AM), https://www.washingtonpost.com/

transportation/2021/11/20/single-family-zoning-race-equity/ (discussing efforts to allow duplexes,

triplexes, and quadplexes in single-family neighborhoods of Montgomery County, Maryland).

These and other concerns led local and state legislatures in Minneapolis, Oregon,

California, and elsewhere to ease zoning restraints and permit greater density in

existing single-family neighborhoods.

6

Despite these efforts, much of the land in

urban and suburban areas of the United States, including major cities, remains

zoned exclusively for detached, single-family residences.

7

See, e.g., Sara C. Bronin, Zoning by a Thousand Cuts, 50 PEPP. L. REV. (forthcoming 2023)

(available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3792544 [https://perma.cc/DZ2H-

J67A]) (finding that 90.6% of Connecticut’s land is zoned for single-family housing only); see also

infra notes 31–33 and accompanying text (describing the prevalence of detached, single-family

housing in the United States).

Even with a Supreme

Court critical of restraints on property rights in other contexts, it is unlikely that sin-

gle-family zoning will be declared invalid by the judiciary.

8

1.

2.

3.

4.

5.

6. See infra Section I.A.

7.

8. See, e.g., Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2069, 2072 (2021) (holding California

regulation granting unions right to access agricultural land constituted per se physical taking); Horne v.

Dep’t of Agric., 576 U.S. 350, 367 (2015) (declaring regulatory requirement that raisin farmers set aside

percentage of crop constituted physical taking, requiring compensation). See generally John G.

2023] SINGLING OUT SINGLE-FAMILY ZONING 661