The tragedy of low-density, large-lot zoning

• Pages: 1-45
• Date: 01 April 2025
• Published date: 01 April 2025
• Author: Daniel R. Mandelker
• Subject Matter: Administrative & Public Law

THE TRAGEDY OF LOW-DENSITY,

LARGE-LOT ZONING

Daniel R. Mandelker

Synopsis: Low-density, large-lot residential zoning of more than three

acres perpetuates economic and racial inequality, constrains housing

supply and housing markets, and makes housing costs unaffordable. It

covers much of suburban America, contributing to a litany of harms in

our housing system, but it has survived judicial challenges with few

exceptions. This Article considers the judicial treatment of large-lot

residential zoning and suggests how it can be reformed.

I. THE LEGALITY OF LARGE-LOT ZONING AND

ITS ADVERSE SOCIAL IMPACTS........................................................ 2

A. Definition and Extent of Large-Lot Zoning ................................. 2

B. Legal Basis and Treatment of Large-Lot Zoning ........................ 7

C. The Judicial Response to Large-Lot Zoning ................................ 9

D. Social and Racial Segregation ................................................... 12

E. Character of the Area ................................................................. 19

II. SUPPLY AND PRICE EFFECTS ......................................................... 24

A. Constraints on Supply and Price ................................................ 24

B. The Effect of Increasing Density on Increasing

Housing Supply.......................................................................... 29

C. Justifications for Large-Lot Zoning. .......................................... 30

1. Managing Growth ............................................................... 30

2. Onsite Wells and Septic Systems ........................................ 31

3. Environmental and Ecological Preservation ....................... 34

4. Agricultural Zoning ............................................................. 37

III. THE PATH TO REFORM ................................................................... 39

A. Judicial Reform .......................................................................... 39

B. Statutory Reform........................................................................ 44

IV. CONCLUSION ................................................................................... 45

 Daniel R. Mandelker, Stamper Professor Law Emeritus, Washington University

School of Law. I would like to thank Salim Furth, Charles Gardner, Ed Sullivan, and Dan

Tarlock for their help in finding references, and Billy Gutierrez for his editorial help.

Andrea Boyak, Salim Furth, Charles Gardner, and Dan Tarlock read the Article and made

helpful comments. Citations to statutes were current on the date this Article was submitted

for publication.

2 60 REAL PROPERTY, TRUST AND ESTATE LAW JOURNAL

A common zoning feature restriction in the United States perpetuates

economic and racial inequality, constrains housing supply, and makes

housing costs unaffordable. Low-density, large-lot residential zoning

(“Large-Lot Zoning”) does all this, and yet it remains ubiquitous across

the country. Because Large-Lot Zoning contributes to a litany of harms in

our housing system and because its costs outweigh its plausible benefits,

the question is: why does it persist and how can we rid ourselves of it?

Although exclusionary zoning recently has come under fire, scant

attention has been paid to Large-Lot Zoning and the damage it does to

housing markets. This Article zeroes in on the tragedy of Large-Lot Zon-

ing in the American suburbs and recommends needed reform.

Part I discusses the legal and social origins of Large-Lot Zoning and

its many adverse social impacts, intended and inadvertent. Part II explores

the economic and environmental impacts of Large-Lot Zoning as well as

its assumed justifications. Part III considers the path to reform.

I. THE LEGALITY OF LARGE-LOT ZONING AND

ITS ADVERSE SOCIAL IMPACTS

A. Definition and Extent of Large-Lot Zoning

“Exclusionary zoning is traditionally discussed in terms of minimum

lot requirements, crafted to create economically homogenous suburban

communities.”

1

Minimum lot requirements have been called the dominant

form of residential exclusion,

2

and they attract local political support as an

effective way to stop housing development.

3

Large-Lot Zoning is low-

1

Christopher Serkin & Leslie Wellington, Putting Exclusionary Zoning in Its Place:

Affordable Housing and Geographical Scale, 40 FORDHAM URB. L.J. 1667, 1695 n.43

(2013); see also Charles Gardner, Cutting Zoning Down to Size: Reevaluating the Legal

Vulnerability o f Urban Minimum Lot S izes, 61 SAN DIEGO L. REV. 231, 236–46 (2024)

(discussing the history of Large-Lot Zoning).

2

See Robert C. Ellickson, Zoning and the Cost of Housing: Evidence from Silicon

Valley, Greater New Haven, and Greater Austin, 42 CARDOZO L. REV. 1 611, 1624 (2021)

(“Drafters o f zoning ordinances typically regard minimum lot-size requ irements as the

most salient of their zoning controls.”); Alan Tarr & Russell S. Harrison, Legitimacy and

Capacity in State Supreme Court Policymaking: The New Jersey Court and Exclusionary

Zoning, 15 RUTGERS L.J. 513, 531 (1984) (large-lot zoning is the dominant form of

residential exclusion); see also Paul Boudreaux, Lotting Large: The Phenomenon of

Minimum Lot Size Laws, 68 ME. L. REV. 1, 8 (2016) (“[T]he practice of large-lot zoning is

best explained by the desire of existing homeowners to restrain population density.”).

3

See Michael Sasso & Shelly Hogan, 'I Live in Hell': Anti-Growth Fervor Grips U.S.

South After Pandemic Boom, BLOOMBERG NEWS (June 18, 2024), https://shorturl.at/dPFFN

[https://perma.cc/S442-KVPH] (“At a planning board meeting in May, the pressing agenda

SPRING 2025 LARGE-LOT ZONING 3

density residential zoning. There is no consensus on the density at which

low-density residential zoning becomes Large-Lot Zoning,

4

but there is

support for one-acre residential density as the breakpoint after which

Large-Lot Zoning begins.

5

Large-Lot Zoning is a suburban exclusionary zoning problem.

6

The

problem is made worse because two-thirds of the population lives in the

suburbs, the share of the population living in the suburbs increased signif-

icantly in recent decades,

7

and a majority of the Black, Hispanic, and

Asian population lives in the suburbs.

8

The average Black and Hispanic

households earn about half as much as the average white household and

item was whether to boost minimum lot sizes in rural areas to at least 2.3 acres; big enough

to ward off housing developers who need more density.”).

4

See URB. LAND INST., THE EFFE CTS OF LARGE-LOT SIZE ON RESIDENTIAL DEV. 11

(1958) (suggesting selection of optimum related to community costs is not possible, but

middle range of lot sizes greater than those for which public sewerage is needed but below

the point where the cost curve commences its more noticeable rise is the most lot area for

the least cost to the community); see also HAW. REV. STAT. ANN. § 205-5 (2012)

(“[M]inimum lot size fo r any low-density residential use shall be one-half acre and there

shall be but one dwelling house per one-half acre . . . .”).

5

See Ellickson, supra note 2, at 1627 (“A focal choice is a minimum lot of one-acre,

a size that obviates the presence of sidewalks and trick-or-treaters.”); URB. LAND INST.,

THE EFFECTS OF LARGE-LOT SIZE ON RESIDENTIAL DEVELOPMENT 7 (1958) (describing large

lots as lots of one acre or more).

6

See Serkin & Wellington, supra note 1, at 1682 (“Traditional exclusionary zoning

at the local scale consists, generally, of large-lot zoning in outer-ring suburbs.”); A. Dan

Tarlock, Zoning Not Planned, 13 PLAN. THEORY 99, 103–05 (2014) (discussing America’s

love affair with suburbia); see also John Ottensmann, Suburbs Defined Using Density,

URBAN PATTERNS (Nov. 28, 2020), https://shorturl.at/QNID7 [https://perma.cc/CU3X-

BEMV].

7

See Daniel T. Lichter et al., Racial Diversity and Segregation: Comparing Principal

Cities, Inner-Ri ng Suburbs, Outlying Suburbs, a nd the Urban Fringe, 9 RSF: RUSSELL

SAGE FOUND. J. SOC. SCIS. 26, 34–35 (2023), https://tinyurl.com/orag22

[https://perma.cc/3QLD-AKEK] (“suburban population share increased by 6.9 percentage

points between 1990 and 2020, from 59.1 to 66.0 percent,” and noting that suburbanization

had noticeably slowed in the last decade); see also Thomas B. Edsall, As the Suburbs Go,

So Goes America, N.Y. TIMES (June 7, 2023), (reviewing articles discussing trends in

suburban areas), https://shorturl.at/OJSo8 [https://perma.cc/WC8H-K84D].

8

The Black suburban population exceeded 5 0% (51.1%) for the first time in 2020.

This population was least suburbanized but experienced a 17.2 percentage point increase

in suburban share, the largest of any ethnoracial group. The Hispanic share was 57.8%, the

Asian share was 62.5%, and the non-Hispanic white share was 73.1%. Racial minority

suburbanization far exceeded the 7.2 percentage point increase for non-Hispanic whites.

Extraordinary increases in Black, Hispanic, and Asian suburbanization since 1990 changed

suburban racial makeup overall. See Lichter, supra note 7, at 34.