The 'Euclidean' Strategy: Authorizing and Implementing the Legislative Districting of Permissible Land Uses

AuthorCharles M. Haar/Michael Allan Wolf
Page 119
Chapter Three
The “Euclidean” Strategy: Authorizing and
Implementing the Legislative Districting of
Permissible Land Uses
I. A National Movement
Since the early decades of the 20th century, the most widely employed land use control has been
zoning; it is in fact the workhorse of the planning and, locally, the environmental movement in
this country. at it has gained acceptance as an indispensable tool of planning may be seen from
the gures: “According to a 1981 report, zoning codes had been adopted not only by 98% of all
cities with a population over 10,000 but also by nearly 90% of all suburban municipalities with
a population of at least 5,000 and by nearly half of suburban municipalities with less than 5,000
residents.1 Because zoning has achieved such general application, it is clearly the legislative process
most worthy of detailed consideration in this eld.
To formulate a practical system of zoning for American municipalities and to present a legal
theory to sustain such an exercise of power was a major creative achievement of the American bar.
is was no easy task. And, as with all social engineering, considerable ingenuity was required to
convert philosophy into legislation and implementation. An illuminating insight into the strategy
of litigation is provided by the annual discussions at the National Conference on City Planning.2
Given the popularity of zoning it is hard to conceive of an alternative system of land use control
that could have been devised and so widely accepted. It is equally challenging to formulate a set
of alternative rationales that might have been woven from existing legal doctrines and precedents.
During the decade preceding 1926, the advocates of zoning fought a vigorous battle for its
judicial recognition. At rst, some courts were loath to sustain a ny legislative attempt to restrict
or regulate the free exercise of what were then deemed the rights of property. Indeed, many states
considered, and a few adopted,3 constitutional amendments to permit zoning. But there always
remained the very real possibility that the U.S. Supreme Court would interpret the innovation as
an unconstitutional use of state power under the Fourteenth Amendment.
1. R’ T L  Z  P §1:3 (4th ed. 2009 ) (citing P W, L  A 140
2. See Alfred Bettman, Discussion, in N C  C P 111 (1914); Edward M. Bassett,
Legal Aspects of Zoning, id. at 193 (1919); Ernst Freund, Discussion, id. at 62 (1913); Ernst Freund, Discussion, id. at
73 (1926). For more on some of the early giants of planning and zoning, see William M. Randle, Professors, Reform-
ers, Bureaucrats, and Cronies: e Players in Euclid v. Ambler, in Z   A D 31-70 (Charles
M. Haar & Jerold S. Kayden eds., 1989). A valuable online resource for those interested in reading early planning
materials is U P, 1794-1918: A I A  A, C P, 
R (John W. Reps ed., 1999), available at
3. See, e.g., G. C. art. 3, §2-1923 (1945); L. C. art. 14, §29 (1921); M. C. art. 60, §190 (1918);
N.J. C. art. 4. §6, ¶ 2 (1928).
Page 120 Land Use Planning and the Environment: A Casebook
Zoning received only passing attention at the rst City Planning Conference in 1909.4 Although
in 1911 the Committee on Legislative and Administrative Methods presented model acts for other
aspects of city planning, it suggested no comprehensive zoning act; the reason given for this omis-
sion was that the views of conference members were as yet too undecided on the subject.5 However,
a paper the following year, e Control of Municipal Development by the “Zoning System and Its
Application in the United States,6 was followed up, in 1913, by the report, Districting, by the Height
of Buildings Commission.7
New York City is generally credited with enacting the rst comprehensive zoning ordinance, in
1916. Prior to this time, California’s high court had upheld use restrictions (at least, those enforced
against Chinese-Americans),8 and the U.S. Supreme Court had approved height restrictions in
Boston.9 e movement in favor of this new form of comprehensive zoning took on the aspects of
a fervid crusade.10 W hereas, in 1916, Lawrence Veiller had announced that zoning “sounds like
a beautiful dream,”11 by the following year George Ford was able to state that as a result of the
success in New York, zoning was being organized, actively promoted, or actually carried on in 20
municipalities.12 In 1922, Frank B. Williams published e Law of City Planning and Zoning, the
rst comprehensive American work in the eld. e same year eodora Kimball could write that
“[z]oning has taken the country by storm”; she reported 20 enabling acts, nearly 50 ordinances,
and about 100 zone plans in progress.13
4. See George B. Ford, e Scope of City Planning in the United States, S. Doc. No. 422, Hearing on City Planning, 61st
Cong., 2d Sess. 70 (1910); Henry Morgenthau, A National Constructive Programme for City Planning, id. at 59. A
news article covering the event carried the following headlines: “Cities Must Guard Health of Workers; Henry Morgen-
thau Outlines in Washington a Plan to Obtain Model Homes for Poor; Better Transit Needed; Present Conditions a
Crime, He Declares—Cabinet Ocers to Preside at Conference To-day,” N.Y. T, May 22, 1909, at 3.
5. See Andrew Wright Crawford, Certain Principles of a Uniform City Planning Code, in N C 
C P 231, 239 (1911). And see the comments by Ernst Freund, and the reactions thereto, id. at 241, 258.
6. Id. at 173 (1912).
7. Reprinted in Commission on Building Districts and Restrictions, Final Report, app. III, at 51 (1916).
8. In the case of In re Hang Kie, 69 Cal. 149, 10 P. 327 (1886), the court turned down a habeas corpus challenge to an
ordinance that read:
It shall be unlawful for any person to establish, maintain, or carry on the business of a public laundry or wash-
house where articles are washed and cleansed for hire, within the city of Modesto, except within that part of the
city which lies west of the railroad track and south of G Street.
9. Welch v. Swasey, 214 U.S. 91 (1909) (rejecting a taking and equal protection challenge to “a discrimination or clas-
sication between sections of the city, one of which, the business or commercial part, has a limitation of one hundred
and twenty-ve feet, and the other, used for residential purposes, has a permitted height of buildings from eighty to
one hundred feet”). irteen years before the Pennsylvania Coal decision, Justice Rufus Peckham, the author of the
anti-regulation, majority opinion in Lochner, wrote for a unanimous Court:
We are not prepared to hold that this limitation of eighty to one hundred feet, while in fact a discrimination
or classication, is so unreasonable that it deprives the owner of the property of its protable use without justi-
cation, and that he is therefore entitled under the Constitution to compensation for such invasion of his rights.
e discrimination thus made is, as we think, reasonable, and is justied by the police power.
Id. at 107.
On October 17, 1791, President George Washington issued a regulation “that the wall of no House shall be
higher than forty feet to the Roof, in any part of the City, nor shall any be lower than thirty-ve feet on any of
the avenues.” In order to attract the settlement of “Mechanics and others whose Circumstances did not admit of
erecting Houses authorized by the said Regulations,” they were suspended in 1796. See T J 
 N C 197 (Saul K. Padover ed., 1946).
10. James Metzenbaum, the successful attorney for the Village of Euclid in the case establishing the constitutional valid-
ity of zoning, expounded on “the great sacrice and eorts on the part of many noble men who consecrated them-
selves.” 1 L  Z 52 (2d ed. 1955).
11. Districting by Municipal Regulation, in N C  C P 147 (1916).
12. What Has Been Accomplished in City Planning During the Past Year, 6 N’ M. R. 346 (1917).
13. Review of Planning in the United States, 1920-1921, 11 N’ M. R. 27, 32 (1922).
Chapter Three: The “Euclidean” Strategy Page 121
Perhaps the most noteworthy advance in zoning in the pre-Euclid v. Ambler period was the
appointment, by Secretary of Commerce Herbert Hoover, of an Advisory Committee on Build-
ing Codes and Zoning. e committee published much valuable material designed to acquaint
interested parties with sound zoning techniques and related legal issues. It drafted a Standard State
Zoning Enabling Act which was adopted, in whole or in part, by 19 states in 1925, and which is
still the model for much state enabling legislation.14
e readings in this chapter are concerned with the legislative and administrative structure
of Euclidean zoning and of some of the alternative land use regulatory structures proered by
planners and lawmakers. W hile the primary emphasis in the preceding chapter was on the active
formulation and adaptation of common-law rules and principles by members of the judiciary, the
cases and materials that follow reect a more discrete, interpretive mode of decisionmaking, as
judges subject the work of the co-equal branches to a mild degree of judicial scrutiny, in harmony
with the deferential tone set by the Supreme Court’s landmark holding in Euclid v. Ambler.
Before one can evaluate in a meaningful way the criticisms of zoning–raised not only by those
who would have us return to something approaching a free market in land values, but also by
those who propose stricter state and federal oversight of permissive local authorities—we must
rst understand the structure of height, bulk, and use regulation and the relationship of zoning to
comprehensive planning. Morever, in the chapter following this one, we will study the mechanisms
for modif ying or avoiding the initial assignment of categories and the avenues of judicial relief
should local decisionmakers fail to perform their tasks satisfactorily. Likewise, before we study in
subsequent chapters the increasingly active role recent courts have taken in the area of planning
and zoning, we need to understand the statutes and ordinances by which signicant public control
of land development was attempted and, despite some pockets of resistance, achieved.
e major cases in this chapter have comprised the introduction to the mechanics of zoning
for thousands of law students in all regions of the nation (and, in turn, thousands of land use
attorneys and planners) over the past 50 years. Despite the passage of time and changes in public
attitudes toward government regulation, judicial consideration of local zoning ordinances, on their
face and as applied, strays very little from the approaches of these classic cases. e major inquiries
remain important: Is the local government authorized to engage in this regulatory activity? How
deferential should the judiciary be to elected ocials and to the experts who advise them? When
does a regulation move from being legitimate to being conscatory? What do we mean by “com-
prehensive” zoning and planning? What is the optimum amount of exibility that benets devel-
opers, neighbors, and the public good? How far from the comfortable and traditional Euclidean
paradigm should courts allow localities to stray?
II. From Where Does the Power to Zone Derive?
Often lost sight of in academic and jurisprudential discussions of the nature and import of the
American brand of federalism—that is, the role of sovereign states in our national system—are the
14. See Ruth Knack, Stuart Meck & Israel Stollman, e Real Story Behind the Standard Planning and Zoning Acts of the
1920s, L U L.  Z D., Feb. 1996, at 3.

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