The Centrality of Exclusion: Legal Impediments to Keeping 'Undesirable' People and Uses Out of the Community

AuthorCharles M. Haar/Michael Allan Wolf
Page 453
Chapter Six
The Centrality of Exclusion: Legal Impediments
to Keeping “Undesirable” People and Uses Out
of the Community
Exclusion is the essence of Euclidean zoning. Structures and lots are classied according to the
height, area, and use deemed appropriate for the specic location. e Euclid majority had no
trouble with the village’s segregation of residential and industrial uses, a course of separation con-
sistent with and abetted by the then-current state of nuisance law. Exclusion of apartment houses
and hotels posed the “serious question” left unresolved in “numerous and conicting” state court
decisions. In the name of health, safety, morals, and general welfare—the legitimate goals of the
police power—and with the blessings of “commissions and experts,” Justice George Sutherland
and his colleagues refused to nd that setting apart single-family housing, in theory, necessarily
violated Fourteenth Amendment due process and equal protection strictures.
In many ways Euclidean zoning is a quintessential Progressive concept. Several of the key
components are present: (1) the reliance on experts to craft and enforce a regulatory scheme1; (2)
the belief that a pleasant environment would foster healthy, responsible citizens2; (3) the trust in
decentralized control; and (4) the dream that the city, in the words of one prominent reformer,
could be the “hope of democracy.3 But there was another sentiment shared by many active in the
Progressive movement that underlay zoning and that contributed to its approval and popularity
in the conservative climate of the 1920s: a decidedly negative view of the immigrants, particularly
southern and eastern Europeans, who from the 1880s to the mid-1920s poured into America’s cit-
ies in “alarming” numbers.4
e less-than-holy alliance between zoning as a particular land use planning tool and anti-
immigration sentiment dates back to the birthplace of American height, area, and use zoning—
New York City. As demonstrated by Seymour Toll in his insightful Zoned American 110 (1969),
one of the driving forces behind passage of New York’s 1916 ordinance was a coalition of Fifth
Avenue retailers. e garment industry that had worked its way up the avenue over the previous
1. See R H, T A  R 155 (1955):
Reform brought with it the brain trust. In Wisconsin even before the turn of the century there was an intimate
union between the La Follette regime and the state university at Madison that foreshadowed all later brain trusts.
National recognition of the importance of the academic scholar came in 1918 under Woodrow Wilson, himself
an ex-professor, when the President took with him as counselors to Paris that grand conclave of expert advisers
from several elds of knowledge which was known to contemporaries as e Inquiry.
2. See, e.g., A A. E J., P  A 77-78 (1974).
3. F H, T C: T H  D (1909).
4. See, e.g., G E. M, T E  T R   B  M A, 1900-1912,
at 91-94 (1958); B S, A  I: A C N E T (1956).
Of course, there were many reformers who were dedicated to “Americanizing” the nation’s newcomers, and oth-
ers who, “[l]ike the rest of their generation . . . felt little enmity toward the immigrants but little identication with
them either.” J H, S   L: P  A N 1860-1925, at 118 (2d ed.
Page 454 Land Use Planning and the Environment: A Casebook
few decades, with its mass of eastern European workers, posed a serious threat to the future of
high-class retailing:
What was coming up the avenue in hot pursuit was the garment industry. It sought the
same thing as the carriage trade merchant—gain—but its route was lower Fifth Avenue,
its great weapon was the tall loft building, its generals were real estate speculators, and
its troops were lower East Side immigrants.
at the Justices who participated in the Euclid case (at least those who studied the lower
court opinion) were aware of the socioeconomic ramications of their holding is undeniable. As
the members of the Court reviewed Judge David Westenhaver’s opinion in Ambler Realty Co. v.
Village of Euclid, 297 F. 307, 313, 316 (N.D. Ohio 1924), they should have pondered this direct
allusion to the exclusionary purpose and potential of land use controls:
e purpose to be accomplished [by Euclid’s zoning ordinance] is really to regulate the
mode of living of persons who may hereafter inhabit [the village]. 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. e true reason why some persons live in a mansion
and others in a shack, why some live in a single-family dwelling and others in a double-
family dwelling, why some live in a two-family dwelling and others in an apartment, or
why some live in a well-kept apartment and others in a tenement, is primarily economic.
Indeed, Judge Westenhaver provided his reader with an important clue as to zoning’s exclu-
sionary potential:
[I]t 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. e blighting of property values and the congesting of
population, whenever the colored or certain foreign races invade a residential section, are
so well known as to be within the judicial cognizance.
In 1926, despite this warning, the Supreme Court allowed the bold experiment in urban and
suburban planning to continue.
e careful student of the Court’s opinion in Euclid should not be surprised at the most recent
developments described in the following section—eorts (primarily by courts, with the occasional
legislative encouragement) to sanction the abusive use of ostensibly neutral zoning and planning
tools to exclude the poor, minorities, and other “undesirable” groups and uses. For the potential use
of governmental property restrictions to exclude those “not like us”—not unlike private restrictions
before Shelley v. Kraemer, 334 U.S. 1 (1948)—is one of the seeds of Euclid.
I. Excluding People I: The Mount Laurel Experiment
Nearly ve decades after the Supreme Court approved the work of Euclid’s planners, the New
Jersey Supreme Court dropped a bombshell on the law and planning community. In their 1975
opinion in Southern Burlington County NAACP v. Township of Mount Laurel, the justices recog-
nized and attacked the link between land use restrictions and socioeconomic segregation, a tie that
was particularly distasteful because of the state’s “crisis”—a “desperate need for housing, especially
of decent living accommodations economically suitable for low and moderate income families.” To
commentators who had perceived this connection two decades before—for example, Charles M.
Haar, Zoning for Minimum Standards: e Wayne Township Case, 66 Harv. L. Rev. 1051 (1953),
and Norman Williams Jr., Planning Law and Democratic Living, 20 Law & Contemp. Probs. 316
Chapter Six: The Centrality of Exclusion Page 455
(1955)—Mount Laurel was an appropriate, if somewhat delayed, judicial response. To a number of
critics, particularly local and state legislators and skeptical judges from other jurisdictions, those
who sat on New Jersey’s high court were mistaken arbiters at best, socialist usurpers at worst.
During the more than three succeeding decades, the legacy of Mount Laurel has been impres-
sive: some corrective legislation, replication and modication in a number of state courts, oceans of
ink in planning and law journals, and stubborn resistance leading to a second (more restrictive and
demanding) supreme court decision in the Garden State. Even if one opposed the court’s activism
and social tampering, it was now evident that zoning and socioeconomic exclusion were intertwined.
67 N.J. 151, 336 A.2d 713, appeal dismissed & cert. denied, 423 U.S. 808 (1975)
e opinion of the Court was delivered by HALL, J. . . .
Plaintis represent the minority group poor (black and Hispanic) seeking such [aordable]
quarters. But they are not the only category of persons barred from so many municipalities by
reason of restrictive land use regulations. We have reference to young and elderly couples, sin-
gle persons and large, growing families not in the poverty class, but who still cannot aord the
only kinds of housing realistically permitted in most places—relatively high-priced, single-family
detached dwellings on sizeable lots and, in some municipalities, expensive apartments. We will,
therefore, consider the ca se from the wider viewpoint that the eect of Mount Laurel’s land use
regulation has been to prevent various categories of persons from living in the township because of
the limited extent of their income and resources. In this connection, we accept the representation
of the municipality’s counsel at oral argument that the regulatory scheme was not adopted with
any desire or intent to exclude prospective residents on the obviously illegal bases of race, origin or
believed social incompatibility.
As already intimated, the issue here is not conned to Mount Laurel. e same question arises
with respect to any number of other municipalities of sizeable land area outside the central cities
and older built-up suburbs of our North and South Jersey metropolitan areas (and surrounding
some of the smaller cities outside those areas as well) which, like Mount Laurel, have substantially
shed rural characteristics and have undergone great population increase since World War II, or are
now in the process of doing so, but still are not completely developed and remain in the path of
inevitable future residential, commercial and industrial demand and growth. Most such munici-
palities, with but relatively insignicant variation in details, present generally comparable physical
situations, courses of municipal policies, practices, enactments and results and human, govern-
mental and legal problems arising therefrom. It is in the context of communities now of this type
or which become so in the future, rather than with central cities or older builtup suburbs or areas
still rural and likely to continue to be for some time yet, that we deal with the question raised. . . .
Mount Laurel is a at, sprawling township, 22 square miles, or about 14,000 acres, in area,
on the west central edge of Burlington County. It is roughly triangular in shape, with its base,
approximately eight miles long, extending in a northeasterly-southwesterly direction roughly par-
allel with and a few miles east of the Delaware River. Part of its southerly side abuts Cherry Hill
in Camden County. at section of the township is about seven miles from the boundary line of
the city of Camden and not more than 10 miles from the Benjamin Franklin Bridge crossing the
river to Philadelphia.
In 1950, the township had a population of 2817, only about 600 more people than it had in
1940. It was then, as it had been for decades, primarily a rura l agricultura l area with no sizeable
settlements or commercial or industrial enterprises. e populace generally lived in individual

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