The History of Zoning Laws In America
A study of the laws that determine where people can live, work, and play and the effects it has had on America
Historically, America has been thought of as a land of freedom. People immigrated here from around the world for greater job opportunities and the believed freedom to pursue their happiness. These desires, however, have led to tension with the people who also live and share these neighborhoods. These conflicts, just like many other debates over the limits of individual versus community rights, have led to the limiting zoning laws across America.
Before the establishment of zoning laws, people were primarily concerned with the idea of a nuisance. A nuisance was any action, event, or behavior that prevented someone or society from fully using their property. These ordinances functioned to attempt to remove any behaviors or conditions that society considers repugnant. Even today people and businesses are ticketed until they solve the offending problem or abate the nuisance based on the policing power of government.
History of Zoning Laws
Zoning laws have a complicated history in America. The earliest known zoning law in America was in San Francisco in 1867 when they attempted to remove slaughterhouses from the rest of society. The law was upheld by the court case Ex parte Shrader.
The opposite outcome was experienced by San Francisco. Ostensibly to prevent fire hazards, the city required that laundries in wooden buildings have a license. The true nature of the law, however, was much darker. Any laundry business owned by a white proprietor received their license while none of the Chinese proprietors did. Thankfully, this racist interpretation was challenged by owner Yick Wo. He refused to close down his store and as a result, was imprisoned. His case, Yick Wo versus Hopkins, challenged the city’s interpretation of the law and the Supreme Court concurred stating that the equal protection clause of the 14th Amendment prevented him from being discriminated against. Unfortunately, this same standard was not applied to offer him citizenship in America.
Sadly, this was far from the last instance of racial discrimination in zoning laws. In 1910, the city of Baltimore established the first laws stipulating that African Americans should be forced to live in segregated neighborhoods with the fictitious reasoning of protecting public health, peace, and property value. The Supreme Court decided in Buchanan versus Warley in 1917, that refusing the rights of African Americans to buy and sell property violated the 14th Amendment, was unconstitutional, and therefore the government was separated from their policing power. Regrettably, just like Worchester versus Georgia that declared the Trail of Tears unconstitutional, this Supreme Court case was also generally ignored in wider society. Many northern cities also adopted zoning restrictions as African Americans began moving north as part of the Great Migration.
There were definitely instances when the Supreme Court ruled in favor of the zoning restrictions. In 1909, Los Angeles attempted to remove brickyards from specific residential areas of town as they considered them unsightly. Despite the fact that the brickyards predated the housing developments the Supreme Court ruled in Hadachek versus Sebastian in 1915 that the zoning law banning his brickyard was constitutional according to the 14th Amendment because he was still allowed to mine clay from his yard even though it was prohibitively expensive and therefore was not fully denied the use of his property.
Depending upon in which area of America you resided the purpose of zoning laws were different. Many credit Germany and the UK as two of the early ancestors of the land use zoning in America that sought to determine the uses for land and was common in the west while in the east the focus was much more on the building’s height, girth, and square footage. The eastern policy was upheld by the Supreme Court in Welch verses Swacey allowing for Massachusetts to use zoning to vary building heights by city region and then the court further approved the ability of the town to require buildings to be setback in the lot in Eubank versus Richmond in 1912.
New York City’s Role In Creating Zoning Laws
New York City played a major role in the progression of zoning rights in America. In 1885, New York City decided that tenement housing could only be one and a half times the width of the street. The city’s denizens continued to feel threatened, however, as ever taller buildings were causing a shadow over the city removing air and sunlight from the streets below. Additionally, factories and other industrial zones were ever more closely approaching the fashionable districts of the town much to the chagrin of the frequent attenders of those areas.
The attitudes of pro-zoning peoples also reflected a changing of conditions in America. From 1870 to 1920 America added a quarter of its population to Urban cities. Many clustered among ethnic populations that were like them or where affordable housing was present resulting in extremely population dense neighborhoods. The revolution in transportation that occurred with the introduction of streetcars and subways also allowed for people to live farther away from jobs and markets than previously possible.
While unease continued to brew over the lack of zoning laws a new building inflamed the already tense situation. The newly constructed Equitable Building reached forty-two stories and towered over the rest of the city. As Zoning NYC described the building, “Rising without setbacks to its full height of 538 feet, the Equitable Building cast a seven-acre shadow over neighboring buildings, affecting their value and setting the stage for the nation’s first comprehensive zoning resolution.” The citizens' disgust against this new building led to New York City creating the first organized zoning code in any major city in 1916 that was championed by lawyer and inventor Edward Bassett.
The new zoning plan, created after the addition of a new amendment allowing it within the New York State Constitution, applied to every building in New York City. There were three primary focuses of the new zoning laws. The code created five different areas within the city that specified the heights that a building was allowed to climb before it had to become thinner to allow more light into the street below. The height that the building was allowed to rise before becoming thinner or pushed back, was proportional to the width of the street below. The city also created three different zones where different land use could occur especially residential, commercial, and unrestricted. The primary zone for New York City was commercial. Lastly, it regulated the amount of the plot of land that a building could take up organized by the respective district in an effort to control overcrowding.
In many cases, the effect of the new zoning laws was to maintain the city as it was. As author Jason Barr writes, “Tall buildings were permitted in Lower Manhattan and Midtown. And the far flung reaches of the city were to be set aside for one- and two-family homes. Factories were allowed to remain along the shores; and apartment buildings were to hug the subway lines.” Bassett hoped that the new zoning system would remove further skyscrapers from the city, a building type that he hated due to its high construction cost. But after a short period of calm during World War One the skyscrapers returned with the introduction of the Roaring Twenties. Many flouted the system by buying larger lots to lawfully allow for taller buildings.
For many people, the effort to promote zoning was a drop in a larger pool of progressive goals. Progressives saw zoning and the control of the uses of private property as the first step to creating a city that reflected good governance and good morals rather than simply submitting the city to what is. Even Herbert Hoover, at this time the commerce secretary, encouraged zoning laws from his position in the federal government by creating a pamphlet in 1920.
Effects of Zoning Laws
Despite the lofty goals of many of the progressive proponents of zoning, many problems abounded with the system. On the lighter end, many people appealed against the regulations that resulted in a patchwork system of laws. Economically, zoning has had many unintended consequences. Barr explains:
“By ossifying the real estate market, it contributes to the higher cost of housing in America’s large cities; it reduces employment and economic mobility; it increases income and wealth inequality; and it reduces economic growth more broadly. Though zoning is not the only reason for America’s problems, its ubiquity and entrenched nature is doing more than help.”
Regardless of its economic harm to the larger population, these laws stay on the books as they protect the property and housing investments made by the rich and middle class by removing the chance of anything unsightly moving into their neighborhood and lowering their property values.
Minorities are also most commonly adversely affected by zoning laws. Many zoning restrictions are known as exclusionary zoning that favor single-family homes that are at times prohibitively expensive and remove opportunities for cheaper high-density housing. As these homes are typically in the suburbs of a city minorities are confined to the urban center. Until the Fair Housing Act was signed many communities took the opportunity to limit sales to people of color and would create unofficial laws or covenants that protected their activities. Since single-family homes tend to be more expensive they also result in better school districts as the funds are gauged on the basis of their home value. These suffered educational effects leave minorities to at times receive a substandard education and to be prevented from attending college and the higher income levels that a degree offers. There are additional negative health effects that people of color suffer from living in the inner city due to greater amounts of pollution, congestion, and heat-related health effects as cities tend to be hotter due to a lack of trees and green spaces.
Across the political spectrum, other groups are presenting issues with zoning laws. Conservatives bemoan the government encroachment on their property rights. They highlight the lack of zoning laws in the city of Houston although they do engage in deed restrictions. Many are encouraging the creation of mixed-use developments that can be used for a variety of people for many purposes in the same area rather than the rigid segregation of land use purposes previously preferred. People are also often unable to move to areas where job markets are soaring to pursue opportunities due to artificially created high housing costs.
Zoning is a process that has a long and complicated history both noble and ignoble. It is commonly said that one man’s poison is another man’s pleasure and as such zoning is preferable and required if you want to maintain your property values or an effort to reduce the upward mobility of the poor and minorities if you are on the other side of the fence. In the 21st century, it is important to work to balance these goals and competing interests and to create a neighborhood that is safe, organized, and fair for all and to ensure that our zoning laws reflect our modern sensibilities rather than an unorganized warren of reactions to prior conditions and situations that result in benefits to no one.
Sources:
