The Future of Exclusionary Zoning and Land Use in Colorado
| Publication year | 2023 |
| Citation | Vol. 52 No. 10 Pg. 34 |
| Pages | 34 |
REAL ESTATE LAW
BY AMY BRIMAH
This article discusses the origins of zoning laws and the effects of zoning on various societal issues.
Editors' Note: This article contains author opinion. Any statements of opinion are the author's own and do not necessarily reflect the views of Colorado Lawyer editors or the Colorado Bar Association.
Initially introduced in the early 20th century, zoning laws were designed to regulate land use and create distinct areas for residential, commercial, and industrial purposes. But exclusionary zoning—preventing certain types of land use in certain areas—has numerous negative societal consequences. This article traces the history of zoning laws; discusses how zoning has affected issues such as affordable housing, racial segregation, economic growth, and climate change; and describes some potential solutions for addressing the negative effects of exclusionary zoning.
What Is Zoning?
Zoning ordinances categorize land use into three broad uses—residential, commercial, and industrial—along with various subcategories to regulate land use by zone districts. Exclusionary zoning ordinances also regulate density, minimum lot size, setbacks, minimum structure size, minimum off-street parking spaces, and other structures. Planned unit developments (PUDs) are another example of zoning.[1] Governmental means of regulation other than zoning include comprehensive or master land use plans, building codes, historic designations, development and subdivision agreements, and environmental regulations. The impact of zoning regulations on housing supply and affordability, regional and national economic growth, social mobility, economic equality, racial integration, and the environment and climate change is being recognized across the country.[2] In most major US cities, including those in Colorado, the vast majority of land is zoned to permit only single-family homes.[3] For example, approximately 77% of land in Denver is zoned for single-unit residential use.[4] Across Colorado, land-use policies restrict the majority of land to a single use—as a single-family home.[5]
The Origins of Zoning Laws: Buchanan, Euclid, and Hoover
Zoning laws affect access to housing, open space, transportation, jobs, schools, food, water, and other necessities and amenities. Cities existed for thousands of years without zoning, and comprehensive zoning laws did not exist before the 20th century. In 1916, New York City became the first municipality to enact a comprehensive zoning law.[6] But for the most part, prior to the 1920s, there was widespread resistance to limiting the use of private land, and governmental regulation was minimal. Land use restrictions were largely imposed by private owners and enforced through the common law of nuisance. Nuisance claims were the primary way to restrict land use before the concept of zoning and are still used for that purpose in cities such as Houston that do not have zoning regulations.[7] Although Buchanan v. Warley prohibited restriction of property sales based on race, the later decision in Village of Euclid v. Ambler Realty Co., along with an effort led by Herbert Hoover, paved the way for many discriminatory local zoning ordinances.[8] The law evolved to uphold zoning as a permissible exercise of police power to exclude nuisances and regulate matters of local concern.
Buchanan v. Warley
The resistance to regulating private land use changed after the US Supreme Court's ruling in Buchanan v. Warleyin 1917,[9] which addressed a Louisville, Kentucky, city ordinance prohibiting the sale of real property to Black people in white-majority neighborhoods or buildings and vice versa. The Court unanimously held that the ordinance violated the Fourteenth Amendment's freedom to contract clause. But the right to own property without regard to race articulated in Buchanan was never fully realized because subsequent federal and local exclusionary zoning measures were upheld and fostered economic and racial segregation. Although local governments are required to comply with the Fourteenth Amendment,[10] many evaded this requirement through exclusionary zoning measures.[11]
Village of Euclid v. Ambler Realty Co.
The US Supreme Court first upheld a zoning ordinance in 1926 in Village of Euclid v. Ambler Realty,[12] when it recognized the legitimacy of state action to exclude certain types of land use from certain areas.[13] In Euclid, the Village of Euclid (village) had passed a zoning ordinance restricting land use in an attempt to prevent business development in nearby Cleveland, Ohio, including apartment buildings, from encroaching into Euclid and destroying the "rural character" of the village.[14] The ordinance excluded certain types of development, including apartments, from single-family residential areas.[15] Ambler Realty owned unimproved land in the village and argued that because the building restrictions prevented it from building apartments on its land, the ordinance reduced the normal value of its property and deprived it of liberty and property without due process of law under the Fourteenth Amendment.
The lower court extensively reviewed the existing case law on the exercise of police powers, the regulation of nuisances, and takings law and determined that the ordinance was an unconstitutional taking and found in favor of Ambler Realty, stating:
The plain truth is that the true object of the ordinance in question is to place all the property in an undeveloped area of 16 square miles in a strait-jacket. The purpose to be accomplished is really to regulate the mode of living of persons who may hereafter inhabit it. 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.[16]
The Supreme Court, however, found no taking and described an apartment building as a "mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district."[17] The Court noted that apartments in certain residential areas are "very near to being nuisances" because they cause increased traffic and noise and take up desirable open space.[18] Accordingly, the Court concluded that, like regulating nuisances, regulating where apartments could be built was a valid exercise of the state's police power.[19]The Supreme Court therefore reversed and held that a government's police power allowed it to separate land for different types of uses.[20]
Because the Supreme Court decision in Euclid failed to reference Buchanan, many scholars have opined that Euclid ratified racist exclusionary zoning policies enacted by local governments that evaded Buchanan's prohibition of explicit racial zoning ordinances.[21]Scholars likewise have suggested that the Court's language throughout the Euclid opinion—that apartments are "mere parasites," that one apartment brings others, and that apartments detract from the safety of single-family home areas until the "residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed"— conveyed an underlying attitude of excluding poor people and people of color from suburban life.[22] However, Euclid did not overturn or affect the opinion in Buchanan because no Fourteenth Amendment violations were alleged in Euclid, and the Supreme Court made no reference to Buchanan despite the analysis of Buchanan by the lower court.[23] Thus, Euclid gave local governments an avenue for implementing zoning regulations under police powers without running afoul of Buchanan.
Hoover's Standard State Zoning Enabling Act
By 1923, zoning ordinances existed in fewer than 300 municipalities and towns[24] and were primarily used to regulate traditional nuisances such as slaughterhouses and polluting factories. In the early 1920s, Department of Commerce Secretary Herbert Hoover led the federal government's push to adopt "A Standard State Zoning Enabling Act"[25] (SSZEA), which rapidly changed the prior limited regulation of land use and began to allow land use restrictions that resulted in excluding certain races, income classes, and occupations from desirable areas and areas zoned for single-family homes. Many scholars agree that Hoover's commission to draft the SSZEA and the rapid spread of zoning laws arose in response to Buchanan.[26]
Following the Euclid decision and Hoover's push to adopt the SSZEA, by 1930, 35 of the then 48 states had enacted SSZEA model legislation, allowing local governments the power to implement zoning. By 1936, over 1,000 local governments had adopted zoning regulations.[27] In the explanatory notes to the SSZEA, Hoover emphasized the desirability of permitting retroactive application of the act to address "local conditions of a peculiar character."[28] The SSZEA's footnotes pointed out that referring to the power to regulate "the density of population" in legislation would allow local governments to create and regulate single-family zone districts.[29] By 1925, Colorado had adopted a form of the SSZEA.[30]
Experts have maintained that local governments nationwide were empowered through Euclid and SSZEA to use zoning to achieve racial segregation[31] that they could not impose through direct bans[32] or by simply ignoring the ruling in Buchanan (even though many Jim Crow southern cities blatantly ignored Buchanan ).[33] Prioritizing single-family homes and banning many uses, including apartments, from single-family home districts are the pillars of zoning ordinances that continue to promote income and racial segregation today.[34]
The Evolution of Zoning as a Police Power
The power to adopt zoning regulations using police power is rooted in jurisprudence and not the text of...
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