The Experience of Racial and Ethnic Minorities with Zoning in the United States

Abstract

To date, scholars have examined two common effects of zoning that disproportionately impact racial and ethnic minorities in the United States: (1) exclusionary effects, resulting from zoning’s erection of direct, discriminatory barriers or indirect, economic barriers to geographic mobility; and (2) intensive and expulsive effects, resulting from zoning’s disproportionate targeting of minority residential neighborhoods for commercial and industrial development. In light of recent legal and federal policy developments, continued research is needed to better understand the scale of the gap between the treatment of white and minority communities and to better understand how zoning can reverse past injustices.

Keywords

gender/race/ethnicity land use planning history planning law

This article reviews literature on the experience of racial and ethnic minorities with zoning in the United States. Among the array of practices in the realms of housing and urban development that have enhanced segregation, the role of zoning is not consistently apparent: cities long ago learned to remove any language from their planning and zoning documents that hints at underlying racial sentiments (Fischel 2015). However, given the social and economic implications of land-use control, as well as the explicit use of zoning for segregationist purposes in the early twentieth century, many scholars have found it necessary to scrutinize zoning practice nonetheless. This article reviews these scholars’ contributions and identifies areas where future research is needed in order to better understand the historical and continuing role of zoning as one of whites’ many “strategies for class advantage” (Lipsits 2011, 28), as well as its utility as a tool of integration and protection for racial and ethnic minorities.

From before World War II, middle-class white urban Americans met the migration of African Americans into the cities with a flight to the suburbs subsidized by federal housing and transportation policy (Jackson 1985). There have at the same time been a host of practices that excluded minorities of all income levels from whites’ suburban destinations. Until Shelley v. Kramer (1948),¹ private racial covenants were legally enforceable (Fogelson 2005; Hirsch 1998), and racial covenants continued to be written into titles until the Fair Housing Act (FHA) of 1968 finally forbid them (Brooks and Rose 2013). Until the FHA, sales or rentals could be refused to minorities in white neighborhoods (Massey 2005). Until the Equal Credit Opportunity Act of 1974, it was legal for financial institutions to discriminate in lending (Massey and Denton 1993). Even after these acts, real estate agents could still steer minorities away from white neighborhoods (Danielson 1976; Massey and Denton 1993). In the 1990s and 2000s, even as lending to minorities increased, half or more of it was in the form of predatory “subprime” loans or loans for trailer homes (Massey 2005, 151). Other forms of deception, intimidation, and violence have been perennial (Rabin 1989; Connerly 2002).

As a result of these practices, racial and ethnic minorities often became trapped in areas of declining service quality, their neighborhoods redlined by banks (Hillier 2003), exploited by blockbusters (Mohl 1995), or when inconveniently located for white interests, bisected by freeways or flattened by renewal (Dubin 1992; Connerly 2002). Exclusion from homeownership in suburbia meant that, for example, African Americans ended up paying higher housing costs as renters in the long run, decreasing their chances of improving their economic and social status (Perin 1977, 69). There is a simple reason for such persistent discrimination: white Americans, at least throughout the twentieth century, preferred to live in neighborhoods with few to no minority households (Massey and Denton 1993). Whites were even willing to pay more to live in equivalent housing if it was in neighborhoods fitting their desired racial profile (Cutler, Glaeser, and Vigdor 1999).

In a reversal of this long-term preference, gentrification by some whites of traditionally minority neighborhoods (Freeman 2006; Hyra 2008) may indicate that at least some whites are now more comfortable living among African Americans and other minorities. But the better part of American history indicates that as long as most whites’ desire for segregation remains, planners, builders, bankers, brokers, politicians, and other development actors will find a way to achieve it in order to benefit from keeping the majority white real estate market satisfied. Thus, the overwhelming prevalence of white racism throughout the twentieth century led to the creation of a dual, segregated housing market: a geographical manifestation of racial animosity that Perin (1977, 172) called the country’s “social tranquilizer.” Local government’s use of zoning, with its ability to control the use and density of development, is not merely riddled with instances of apparent prejudice but is an effective tool in the generation of this dual urban housing market. In particular, scholars to date have focused on zoning’s role in the exclusion of minorities from areas whites found desirable and on its role in exploiting minority residential communities for commercial and industrial development. Consequently, this article focuses on two sets of effects: (1) exclusionary effects, resulting from the use of zoning to exclude minorities from white areas, first with explicitly discriminatory, and then with economic barriers to geographic mobility; and (2) intensive and expulsive effects, resulting from zoning’s inadequate protection or outright targeting of minority residential neighborhoods for intensive commercial and industrial development. This article also reviews scholars’ assessments of zoning as a tool for achieving greater integration and protection of minorities, these uses of zoning being increasingly common ventures for planners concerned with issues of equity in their cities. In consideration of the recent legal development of Inclusive Communities (US Supreme Court 2015)² and the Department of Housing and Urban Development’s (HUD 2015) recent “Affirmatively Furthering Fair Housing” (AFFH) rule, this article concludes with a call for more research into the roles of zoning in enhancing segregation and in encouraging the integration and protection of minority communities.

Exclusionary Zoning

Social reformers of the early twentieth century saw zoning as a means of improving the conditions of the working class in American cities and integrating immigrants. Charles H. Cheney, planning consultant for numerous western American cities, saw zoning for minimum densities and lot standards as a chance “to give the poor man, and particularly the foreign-born worker an equal opportunity to live and raise his family according to the most wholesome American standards…” (Cheney 1920, 275). Instead, real estate interests and homeowners were to seize upon zoning as a tool for maintaining property values and stymying the mobility of undesirable land uses and populations.

Economist William Fischel’s (2001) homevoter hypothesis provides a compelling theory of zoning in the United States, one attune to what zoning effectively became in the twentieth century. According to the hypothesis, zoning decisions are best understood through the mind-set of home owner occupiers, whose most significant asset is their home. Zoning decisions are therefore motivated by the desire to preserve home values and the quality of amenities and infrastructure that make for a desirable community. This explains why, in Fischel’s understanding (2004), zoning did not spread in the United States until the country’s first great suburban boom of the 1920s. It was a means of keeping industry, made footloose by trucking, out of the new residential areas. Suburban homeowners also feared renters would crowd into apartment buildings that blocked sunlight, and come in numbers that would overburden community services and roads.

Big real estate was homeowners’ ally in the push for zoning. The early twentieth-century “community builders” promoted zoning as a means by which their high-income developments could become surrounded by similar communities (Weiss 1987). With zoning, the police power of a municipality could be put to use preserving the quality of services and infrastructure and maintaining single-family residential property values across a far greater area than private covenants could cover. Municipalities thus use zoning to “screen” out anything they perceive to be a “quality-detracting user” and the perception of who or what is detracting may well be informed by prejudice (Fennell 2009, 43–45).

Therefore, it is not surprising that behind the apparent rationality of defending home values and managing the quality of services and infrastructure, there is an extensive history of racial and ethnic hatreds informing zoning and its precedents, reminding us of the intertwined nature of markets and culture. From the 1880s, California cities created limited areas in which laundries could operate, ostensibly for the purpose of controlling fire hazards and protecting property values. Chinese immigrants owned many laundries in the state’s cities at the time and used them as places for socializing (Pollard 1931). Young (2004, 671) argued that the survival of these laws through many early court challenges was due to a trio of factors, among which was the regulations’ “facial race neutrality.” Responding to an 1885 challenge, one court spoke to the facially race-neutral character of these laws, saying “the diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable” (quoted in Kosman 1993, 113). The US Supreme Court finally overturned one of the laundry ordinances the following year because it considered how often the ordinance was enforced against Chinese-operated laundries versus white-operated ones (Kosman 1993).

African Americans were another group that suffered unfair treatment at the hands of land-use laws early on. In the decades after the Civil War, though it was hardly an indication of racial equality, the small populations of African Americans living in cities existed in relative integration with their white urban neighbors (Hanchett 1998). But at the end of the nineteenth century, as the first Great Migration of southern rural African Americans to the country’s cities began, urban whites increasingly chose to leave neighborhoods settled by the new immigrants, anxious over the prospect of sharing schools and other facilities with the new arrivals (Bruce 1926). Whites regarded as facts their beliefs that African Americans posed health threats and depressed property values (Nightingale 2012). DuBois countered that prejudice was the only factor depressing property values (Nightingale 2012, 305) but to no avail.

The migration brought African Americans to southern cities first (Taylor 2014), and many of these cities responded with racial zoning. This was within the wider context of Jim Crow legislation aimed at segregating every facet of urban life (Nightingale 2012; Brooks and Rose 2013). Baltimore instituted racial zoning in 1910 for the stated purposes of protecting property values and preventing conflict and disease (Silver 1991). The ordinance and its ensuing modifications made it illegal for African Americans to live or assemble on white-majority blocks and for whites to live or assemble on African American–majority blocks (Taylor 2014).

Legal doctrine at the time held that the separation of residential areas was not discriminatory, as African Americans should be able to improve their neighborhoods just as whites presumably had (Dubin 1992). Courts thus relied on the doctrine of “separate but equal,” legitimized by the Supreme Court with its 1896 decision in Plessy v. Ferguson (Brooks and Rose 2013). Contemporary promoters of the legislation, however, knew black and white blocks would not be of equal quality: the new migrants would have to crowd into already majority African American areas, creating unhealthy slums (Power 1983). The Maryland Supreme Court upheld Baltimore’s scheme because it purportedly promoted the valid state interest of preventing violence (Taylor 2014). Numerous other southern cities followed Baltimore’s lead. Racial zoning was overturned by the US Supreme Court in Buchanan v. Warley (1917)³ not for the purpose of protecting the rights of African Americans but on the grounds that it had prevented a white Louisville man from selling his property in a white zone because the buyer and prospective resident was African American (Sager 1969; Dubin 1992).

The Buchanan case did not put an end to southern cities’ implementation of racial zoning: they continued their efforts by tying segregation to wider planning goals, for example, by associating areas for white or African American residence with particular land-use districts (Silver 1991). Alabama’s 1922 zoning enabling statute explicitly stated that the purpose of zoning was to apportion residential areas to different “classes” but, invoking “separate but equal” doctrine, that this did not authorize discrimination “in favor of or against any class of inhabitants” (qtd. in Connerly 2005, 42). The northern city of Indianapolis instituted racial zoning in 1926, though it was struck down in the same year (Taylor 2014). The Chicago Real Estate Board campaigned for a racial zoning scheme in that northern city, ultimately turning to the promotion of racial covenants when it did not get its way (Nightingale 2012). Some cities, including Winston-Salem and Miami, had racial zoning ordinances into the 1940s (Silver 1991; Mohl 2001); Birmingham’s survived until 1951 (Connerly 2005). Atlanta’s racial zoning did not withstand a 1924 court challenge, but planners continued to make decisions on improvements based on what areas had been designated for whose use and pursued policies of disconnecting roads between African American and white neighborhoods (Bayor 1988). The segregationist effort in the mid-twentieth century simply transformed into a broader “race-based planning process,” with differential implementation of services across cities’ commonly understood color lines (Silver 1991, 201).

Although most northern cities never had explicit racial zoning, zoning’s establishment was certainly in part motivated by racial and ethnic hatreds there too, along with class prejudice. Early zoning advocates including Robert H. Whitten argued that class and racial segregation benefited society, as white single-family homeowners would lose their stake in their community’s welfare should it be degraded by apartments and their occupants (Kosman 1993, 81–82). New York’s first-in-the-nation comprehensive zoning ordinance of 1916, though facially neutral in regard to race and ethnicity, was in part motivated by a desire to distance factories employing Southern and Eastern European garment workers from the fashionable Fifth Avenue retail district (Toll 1969; Hirt 2014).

Davidoff and Davidoff (1970) and Ritzdorf (1997) discussed Euclid v. Ambler,⁴ the US Supreme Court’s (1926) test of zoning, within the wider context of the contemporary racist and nativist backlash against African Americans, Asian immigrants, and Southern and Eastern European immigrants. The lower court ruled against zoning because it would effectively segregate people according to their “income or situation in life,” though the court admitted the supposedly blighting influence of racial and ethnic minorities on residential property. The Supreme Court was, however, in the end swayed by the desire for “neighborhood racial and ethnic purity” (Ritzdorf 1997, 44). The Supreme Court revealed a clear bias, framing apartment buildings as parasites that deprived single-family homeowners and their children of freely circulating air and uncrowded streets, while saying nothing of the needs of families living in apartment buildings (Young 2004). The plaintiff, Ambler Realty, argued that what was suitable for the health, safety, and welfare of an apartment-dwelling family should be good enough for that of a wealthier one (Hirt 2015).Thus, it was only the privileging of one group over another that in the end trumped the right of individuals to unrestrained property use in favor of “the community of property owners” (Kosman 1993, 87). Euclid thus reframed homeowners’ and community builders’ wishes to exclude the lower classes and racial and ethnic minorities as “acceptable, neutral bureaucratic” decisions (Kosman 1993, 62) regarding property values.

Exclusionary zoning measures, specifically those involving minimal provision for multifamily construction, large minimum lot sizes, and so on, grew immensely in popularity after Shelley v. Kramer (1948), which denied the enforceability of racial covenants (Davidoff and Davidoff 1970). Private racial covenants prohibiting African American purchase or residence had become commonplace in residential subdivisions after the turn of the twentieth century, as African Americans’ migration to the cities gained momentum. Such covenants were prevalent not only in the Jim Crow south but throughout the country (Fogelson 2005). In Chicago, already in the first decade of the twentieth century, covenants were being used to counter the rumors of African American move-in spread by blockbusters (Nightingale 2012). Restrictive covenants also prohibited occupancy by Hispanic groups, Asians, and even white ethnic or national groups including Hungarians, Italians, Greeks, Jews, Slavs, and Armenians (Fogelson 2005; Hirt 2015). The National Association of Realty Boards and the Federal Housing Administration promoted racial covenants in the early twentieth century (Brooks and Rose 2013). While sapped of enforceability in 1948, racial covenants remained common for the purpose of marketing a community’s racial preferences, until finally outlawed by the FHA (Brooks and Rose 2013).

After 1948, suburban jurisdictions had the option of legally restricting nearly all types of development via zoning (Fischel 2004). While explicit racial zoning was not still in the cards then for most cities (Birmingham remained the exception for a few more years), zoning still had the advantage of being able to cover all of a jurisdiction’s territory with density, lot, and even home size restrictions. Such restrictions could eliminate move-in by all except those who could afford the mandated minimum development standards, and according to contemporary postwar observers these households were very likely white (Aloi, Goldberg, and White 1969; Downs 1973).

Critiques of so-called exclusionary zoning measures have existed since zoning’s inception: the lower court’s ruling against the town of Euclid in Euclid v. Ambler, along with other contemporary decisions, reveal that the exclusive effects of zoning were evident from the start (King 1978). King (1978) documented how after World War II, sentiments against exclusionary practices yielded a series of rulings in New Jersey and Pennsylvania against local bans on trailer parks and against one-, two-, and three-acre minimum lot sizes. The New Jersey Supreme Court’s 1951 validation of Wayne Township’s minimum house size rules, despite effectively segregating the township by household income (Aloi, Goldberg, and White 1969), demonstrated the limits of this sentiment, however. Haar (1953, 1063) lamented that in deference to a local definition of a desirable community, the New Jersey court had effectively blessed segregation with the “progressive polish” of zoning. “The preservation of expensive homes,” wrote Haar (1953, 1056) “apparently becomes a proper function [of government] if suitably dressed up as a zoning ordinance.” Comprehensive definitions of exclusionary zoning followed in the 1960s. According to Lyndon B. Johnson’s National Commission on Urban Problems (1968) exclusionary measures included large-lot zoning, exclusion of multiple-dwelling units, minimum house-size requirements, exclusion of mobile homes, and excessive subdivision regulations.

By 1967, cities and towns had limited 99.2 percent of the undeveloped land zoned for residences in the New York metropolitan area to single-family construction (Downs 1973, 49). Suburbs exclusive to middle-class buyers sprouted up nationwide, filling with middle-class buyers leaving urban neighborhoods: “white flight” to restrictively zoned suburbia had succeeded covenants as the “vehicle of segregation” (Brooks and Rose 2013, 5). While some scholars were hopeful that increasing suburbanization among African Americans during the 1970s was indicative of social and economic progress and the overcoming of exclusionary barriers (Jackson 1981, 130), later scholarship (Massey and Denton 1993; Schneider and Phelan 1993) found that segregation and white flight had moved to the suburbs with them.

Thirty years later, analysis began to confirm the effect of exclusionary zoning policies on racial and ethnic minorities. Pendall (2000) found that across 1,000 jurisdictions in the twenty-five largest metropolitan areas, stricter land-use controls were associated with the exclusion of black and Hispanic residents from more areas, theorizing that the land-use controls he surveyed led to the construction of fewer rental units and in turn exclusion. Rothwell and Massey (2009) have made similar findings, showing that metropolitan areas where zoning permitted denser development became more racially integrated between 1980 and 2000. Rothwell (2011) further confirmed the contribution of antidensity zoning to segregation.

Even so, Pendall, in his conclusion, stated, “Although land use controls have evident connections with the exclusion of Blacks and Hispanics, the mechanisms through which these effects occur are not straightforward. Land use controls are not signs that advertise ‘Whites only’” (2000, 138). Rothwell and Massey (2009, 801) similarly concluded that restrictions on density did not so much directly enforce racial segregation as they prevent “people with modest incomes” from leaving segregated areas. While restrictive zoning can exacerbate racial segregation, and enough evidence of racial discrimination exists across housing and development policy to make one suspect that racism underlies many zoning decisions, there remains limited empirical evidence to support this claim.

As Fischel (2004) noted, all cities have needed to do to disguise any discriminatory intent has been to state another justification for their practices. This is not even disingenuous: cities adopt effectively exclusionary measures to achieve environmental protection, prevent traffic, achieve fiscal stability, and for any other number of reasons. If there is an underlying racist sentiment driving zoning decisions, local officials have long understood the need to hide it (Fischel 2015). In conclusion, Rothwell (2011) argued that more empirical work was needed regarding the motivations behind zoning decisions.

Sometimes racist sentiments are likely coded. Danielson (1976) argued that suburbanites concealed their racist sentiments behind euphemistic statements about subsidized housing, welfare cases, and the unemployed. In Mt. Laurel, New Jersey, the target of two National Association for the Advancement of Colored People (NAACP) lawsuits in 1975 and 1983 over exclusionary zoning, public officials of the 1960s and 1970s frequently talked about nearby Camden and other African American–majority cities as examples of what Mt. Laurel should not become, though without explicitly mentioning those places’ demographics (Kipp, Dwyer, and Rosenthal 1995). Perin (1977, 87) found that when developers proposed anything besides single-family detached housing, “suburbanites see the city moving in,” “the city” indicating an influx of African Americans, drugs, and violence. Babcock (1966), however, found such stereotyping to be mostly on the basis of the assumed incomes of people moving into denser housing types.

Clingermayer (2004) has pointed out that when the true reasons for a preferred land-use outcome are controversial, but many less controversial reasons for the outcome exist, advocates will simply pick one of the less controversial reasons. This is a practice he termed “heresthetics” after William H. Riker in The Art of Political Manipulation. This is the crux of the racial dilemma in the post–Jim Crow era: privileged whites are able to defend the color line without being explicit about it. Instead, as Connor (2014) saw in his discussion of municipal fragmentation or as Freund (2006) saw in his discussion of the Federal Housing Administration and suburbanization, they can do so from their positions as homeowners, consumers, and taxpayers concerned about property values, community services, and quality of life.

This has been where the “open suburbs” movement of the 1960s and 1970s met its greatest challenge: courts were simply unwilling to consider the possibility that an effectively discriminatory ordinance violated minorities’ rights unless it was explicitly discriminatory in intent. In 1974, a federal court ruled that the town of Blackjack, Missouri’s rezoning to prevent the construction of federally subsidized townhomes had not been racially discriminatory even though the townhomes’ intended occupants were racially diverse (King 1978). That year the US Supreme Court ruled in Belle Terre v. Boraas that the town of Belle Terre could restrict the number of unrelated individuals that constituted a household, citing the need to protect “family values” (King 1978, 466). This allowed the exclusion of shared living arrangements for poor and minority individuals, as Ritzdorf (1997) has discussed. In 1975, the Supreme Court denied standing to plaintiffs suing the town of Penfield, New York, a town that allowed multifamily construction on 0.3 percent of its land. The dissent argued that the Court had not wanted to have to rule against a town with policies that were so clearly exclusionary of poor and minority households because of the doors such a ruling may open (Ritzdorf 1997).

The grounds for the findings of New Jersey’s Mt. Laurel I (1975)⁵ and Mt. Laurel II (1983)⁶ decisions and Pennsylvania’s Surrick v. Zoning Hearing Board of Upper Providence (1977)⁷ were not in equal protection doctrine but on the grounds that access to housing is a component of the general welfare that zoning is meant to achieve (Ham 1997; Young 2004). Not only did the New Jersey Supreme Court’s findings “dilute the desegregation objective” (Ham 1997, 595), but they have largely failed to lead to more racial integration in practice (Ham 1997, 609). The New Jersey Fair Housing Act, passed in order to remedy the issues of exclusivity highlighted by the Mt. Laurel cases, required municipalities to provide their “fair share” of low-income housing, but until 2008 it allowed local jurisdictions to buy their way out of up to half of their low-income housing obligation (Fennell 2009).

With 1977’s Arlington Heights decision, the US Supreme Court established that a plaintiff would have to provide evidence of discriminatory intent in order to demonstrate a violation of the fourteenth amendment (King 1978; Berry 2001). Specifically, the court established that a segregating effect alone did not demonstrate intent (Mandelker 1977). After Arlington Heights, scholars and advocates scrutinizing the effect of exclusionary zoning on minorities were back where nineteenth-century Chinese immigrants were with the laundry laws: confounded by courts’ deference to the facial neutrality of zoning decisions in regard to race. Finally, in 2015, the Supreme Court ruled that the Texas Department of Community Affairs had violated the FHA, finding that the Department had disproportionately allotted tax credits incentivizing low-income housing developments in majority–minority areas (US Supreme Court 2015). The court thus held that the Department’s policy, while facially race neutral, violated the FHA’s mission of eradicating housing discrimination because it had a disparate impact on minorities and whites. This decision may pave the way for other courts finding fault with policies that have disparate impacts on households of different racial and ethnic characteristics.

A limited amount of research to date has considered how minorities may be excluded (via displacement) from gentrifying neighborhoods by zoning decisions allowing construction of upmarket housing. Checker (2011) has linked zoning changes to white, upper-income move-in and minority displacement in Harlem. Pendall’s (2000) study, while finding an association between looser zoning regulation and racial integration, also acknowledged that under some circumstances higher densities are associated with gentrification. Dubin (1992) has also considered zoning decisions that raise the costs of retaining housing for minorities. Dubin discussed the case of Houston v. City of Cocoa (1989),⁸ in which African American plaintiffs argued that a rezoning incentivizing luxury condominium construction was part of a fifty-year pattern of ignoring the goals and desires of their community. The plaintiffs alleged that the city’s planners, having blighted the African American community by allowing the encroachment of commerce and industry, were now seeking its redevelopment for the benefit of “foreseeably White” new residents (quoted in Dubin 1992, 772). The suit was settled, with relief including incentives for affordable housing and new zoning measures that would phase out incompatible uses. It is not likely that upzoning gentrifying neighborhoods for market-priced housing development and other uses is unequivocally a losing scenario for lower-income minority residents of these neighborhoods: while they did not explicitly deal with the issue of zoning, Freeman and Braconi (2004) found that the large declines in poverty rates associated with gentrification are to a great extent not a product of displacement, but instead the integration of new, higher-income populations.

Intensive and Expulsive Zoning

The industrialized city presented a conundrum to late nineteenth- and early twentieth-century social reformers and real estate interests alike: a finite amount of space had to be made livable at the same time that it housed the commerce and industry from which cities derived their wealth. Zoning served as an effective tool in protecting residential neighborhoods from nuisances associated with commerce and industry. In its 1926 validation of zoning, Euclid v. Ambler, the Supreme Court quoted the Supreme Court of Illinois: “The exclusion of places of business from residential districts is not a declaration that such places are nuisances or that they are to be suppressed as such, but it is part of the general plan by which the city’s territory is allotted to different uses in order to prevent, or at least to reduce, the congestion, disorder and dangers which often inhere in unregulated municipal development” (US Supreme Court 1926, 392–93). Zoning therefore can act as a “gatekeeper” that keeps hazardous or otherwise burdensome uses away from residential areas, at the same time it preserves other areas for industrial production and other forms of commerce (Maantay 2002, 572).

As a body of law adopted for the protection of the public health, safety, and welfare, one would expect decision makers to equitably apply zoning protections across neighborhoods regardless of their economic, racial, or ethnic characteristics. Many scholars have nevertheless asked whether zoning has resulted in the equitable protection of residential areas from hazardous or otherwise burdensome land uses. Beginning three decades ago, a number of studies (Bullard 1983; US General Accounting Office 1983; Commission for Racial Justice 1987) began to observe the frequent colocation of minority communities and hazardous land uses, while some later studies (Been and Gupta 1997) countered the earlier ones with evidence that there were not undue concentrations of hazardous uses in minority areas. Either way, there are cases in which hazardous use siting or expansion seems explained by decision makers taking advantage of politically disempowered minority populations (Bullard 1983; Hamilton 1993). The resulting environmental geography is regressive because health risks, including lead exposure and air pollution, are accrued to those least able to afford medical treatment (Bullard 1994). The presence of industry or even of land merely designated for industrial use also negatively impacts nearby residential property values (Farber 1998; De Vor and De Groot 2011).

Agent-based modeling (Campbell, Kim, and Eckerd 2013) has predicted that polluting firms will locate away from more empowered parties, but that proactive zoning can help limit environmentally unjust outcomes. Thus, zoning’s protection of residential areas from very intense land use can vary based upon the extent to which local governments are representative of their various constituents’ interests: Logan and Molotch (1989) and others (Young 2004) have argued that the implementation of zoning varies in its protectionism because of the different abilities of the social classes to pursue legal action and other means of swaying local decision makers. Therefore, “with zoning laws or without them” different income groups are “unequally able to protect their environmental interests” (Logan and Molotch 1989, 158). Due to the enmeshed character of class and race in the United States, this classist dimension of zoning implementation also reflects the broader experience with racial subjugation and segregation.

Even the earliest zoning laws, while largely devised to protect residential areas from industrial intrusion, only protected those able to afford housing within exclusive residential districts because the early laws usually did not forbid residential construction in commercial or industrial zones (Young 2004). By at once labeling factories as “pigs” and apartment buildings as “parasites,” Euclid set the groundwork for the colocation of industry and lower-income residential development in American cities (Arnold 2007, 13). Thus builders could use land in intensively zoned areas not suited for commercial or industrial use for the construction of rental housing, leading to the exposure of renters to environmental hazards. For example, New York City’s original zoning code created an exclusive residential zone, usually implemented in high-income areas, but did not exclude residential use from commercial or unrestricted zones. This led to the disproportionate concentration of environmental disamenities in working-class neighborhoods, and ethnic and racial minorities found these neighborhoods affordable places to settle in increasing numbers in the mid-twentieth century. Following a 1961 code update, planners rezoned many of these mixed use, increasingly minority neighborhoods exclusively for manufacturing use (Mantaay 2002; Sze 2007).

Beyond the textual substance of zoning regulations, there is the question of how zones are arranged on the map. Several historical studies demonstrate how planners and legislators have promoted more lenient zoning in minority residential neighborhoods. Sidawi (1997) documented the planning of Torrance, California as a working-class white city of industry. Despite the planners’ desire for racial purity, they were nevertheless compelled to include a low-rent residential area for Mexican workers due to the lower cost of Mexican labor. This area was surrounded by industrial areas on all sides, separating it from white residential sections while exposing it to noise, traffic, and pollution; the city’s white areas were far more insulated. Cottrell (1975) found that the Anglo-dominated zoning commission of San Antonio, Texas, more frequently acted to prevent the encroachment of commercial development on white, wealthy residential Northside neighborhoods than it did on the city’s Hispanic barrios. Greenberger (1997) documented the example of East Austin, where permissive zoning dating from the 1930s followed a 1928 plan’s labeling of the neighborhood as a “negro district.” While Phoenix’s mid-twentieth-century zoning protected white residential areas in the city’s northern reaches, values of homes in a “model” African American neighborhood of South Phoenix plummeted shortly after construction due to a lack of protective zoning and consequent encroachment of industry and substandard dwellings in that area (Bolin, Grineski, and Collins 2005).

There have also been many instances of redesignating previously residentially zoned property in minority neighborhoods for industrial use. Rabin (1989) called this “expulsive zoning,” because it has led to the replacement of homes with industry and consequent expulsion of residential communities. Birmingham, Alabama, pursued such practices from the start, zoning the same areas for industry and African American residence under its comprehensive 1926 racial zoning scheme (Connerly 2005). Abrams (1966) documented a later case in Milpitas, California, where the city rezoned an area intended to house African American factory workers from residential to industrial use. There is the case of Tulare County, California’s Matheny tract, a primarily residential Latino neighborhood zoned for light industrial use, this zoning leading to a high concentration of hazardous uses within the community (London, Huang, and Zagofsky 2011, 17). Colquette and Robinson (1991) discussed the 1990 rezoning of 800 acres for industrial use in an African American residential area of St. John the Baptist Parish, Louisiana. This action occurred despite the acres’ long-standing residential zoning and the existence of other available industrially zoned land for use by the applicant. In 1947, Charlotte rezoned all of its African American neighborhoods for industrial use, reflecting city leaders’ hopes that these areas would be redeveloped (Hanchett 1998, 247). African American suburban communities fell victim to the same “expulsive” tactics as their urban and rural counterparts: Rabin found that in suburban Baltimore County, Maryland, most of the African American population was confined to a single area that was rezoned for industry in 1955, leading to redevelopment in the 1960s that displaced that community (1989, 117).

Aside from historical case studies, there have been a small number of more comprehensive studies of inconsistencies in zoning protection across color and class boundaries. Arnold’s (1998) study was the first quantitative comparison between zoning patterns in low-income, high-minority neighborhoods and zoning patterns in high-income, low-minority neighborhoods. Arnold looked at thirty-one census tracts across seven US cities, selected either due to their high-minority, low-income population or their low-minority, high-income population. Arnold found that across all of the cities, the high-minority, low-income census tracts had more intensive zoning, including industrial zoning, and that low-minority, high-income census tracts had more land zoned for single-family residential use (1998, 81–83). The study, in Arnold’s own assessment, had several weaknesses. In particular, because it only looked at the census tracts at one point in time, it did not address the question of whether minority communities were targeted for more intensive zoning or whether minorities moved into areas with preexisting intensive zoning (1998, 87). Furthermore, there is little sense of whether or not the particular census tracts chosen in each city speak to the broader experiences of high-income nonminority households or low-income minority households in each city.

Maantay (2002) considered the question of whether or not zoning for industry preceded minority move-in in New York City. She examined, over a three-decade period, the demographic characteristics of census tracts within manufacturing zones, near large rezonings to manufacturing use, and near large rezonings from manufacturing use. She found that residents living in or near manufacturing zones and those living near major rezonings to manufacturing use have been more likely to be members of a minority group and lower income. Furthermore, New Yorkers living near major rezonings from manufacturing use have been less likely to be minorities and lower income (Maantay 2002). Maantay (2002) also considered case study areas including low-minority areas where manufacturing zones contracted and high-minority areas where manufacturing zones grew in area.

Pastor, Sadd, and Hipp (2001) similarly found that the colocation of minority neighborhoods and toxic facilities in Los Angeles County was mostly due to the selection of minority neighborhoods for toxic facility sites rather than postsiting market dynamics, thus implicating past zoning practices. Even so, for Taylor (2014), the question of “which came first?” is less important than understanding why the frequent colocation of minorities and hazardous uses persists. Here the conversation must return to exclusionary zoning: Arnold (1998, 29) argued that due to exclusionary measures including low-density zoning and housing discrimination, minorities living near environmental disamenities are less able to “vote with their feet” and move to more protected residential communities (Arnold 1998, 29).

Despite the evidence of different treatment of white and minority neighborhoods when it comes to their protection from hazardous and otherwise burdensome uses, courts have usually been unwilling to rule against local governments or polluters, at least on equal protection grounds. The Supreme Court established, notably via rulings in Washington v. Davis (1976)⁹ and Arlington Heights v. Metro Housing Development (1977),¹⁰ that plaintiffs fighting a situation of perceived environmental injustice must prove that decision makers possessed a discriminatory purpose in order to demonstrate a violation of the equal protection clause (Collin 1991; Colquette and Robinson 1991; Dubin 1992). Perhaps one of the only cases to affirm residential communities’ equal entitlement to zoning protections against industrial intrusion is the 1944 California case of O’Rourke v. Teeters (Dubin 1992), which ruled against an African American plaintiff trying to open an electronics business in a majority African American residential zone. Young (2004) has argued that when it comes to issues of zoning and environmental justice, the courts have apparently been ambivalent to the implicit bias embedded within decisions that disproportionately harm communities of color. Lawrence (1987) has argued that this ambivalence gives those responsible for the disparate treatment of white and minority areas the benefit of the doubt even while the country’s history of racism shows little reason to do so. As mentioned previously, the Supreme Court’s decision in Inclusive Communities (2015) may finally represent a reversal of the highest court’s conventional practice, opening the way for other courts finding fault with facially race-neutral policies on the basis of their disparate impacts on different racial or ethnic groups.

Indeed, there are many reasons that businesses or public policy makers may prefer minority neighborhoods over other areas for the siting of industrial uses that on their face have little to do with prejudice. Cole and Foster (2001) discussed how lower land costs, less likelihood of resistance, or lower educational attainment were among those characteristics that industry has been advised to look for in making siting decisions. However, it is also the case that there are particular racial dimensions to all of these characteristics (Cole and Foster 2001, 71–72). Pulido, Sidawi, and Vos (1996) argue that all dimensions of social life have been and remain racialized. Racial and ethnic minorities face discrimination and exclusion on any number of fronts (Reskin 2012), so segregation into unequal geographies does not always require direct targeting according to race.

Inequitable outcomes may be better understood through the preservation of privilege at the expense of minorities (Pulido 2000). For example, the 1920s decision by Los Angeles County Commissioners to channel industry to the east of downtown Los Angeles was due most clearly to the concentration of rail lines there (Boone and Modarres 1999; Boone 2005). The contemporaneous exclusion of Latinos from more well protected, white areas promoted Latinos’ residence in areas designated for intensive use and resulted in the mix of industry and residential areas visible today within the city’s Latino eastside communities (Pulido 2000). Thus, while Latino communities may not have been directly targeted for industrial development, the desire of planners and legislators to channel industry away from white areas and the maintenance of exclusionary zoning in white areas has led to this unjust outcome.

Zoning as a Tool of Minority Integration and Protection

There have also been instances of municipalities zoning for a mixture of densities for the purpose of creating neighborhoods integrated across class, racial, and ethnic lines. James Rouse pursued a program of racial and class integration through zoning in his building of Columbia, Maryland, allowing a variety of housing types to be built within each of Columbia’s village components (Forsyth 2005). However, prior to the 1970s, such progressive uses of zoning were limited; by and large, communities used zoning, along with a variety of other de jure and de facto tools, to achieve an American brand of apartheid that saw wealthier and white households secluded from poorer and minority Americans in separate geographies (Davidoff and Davidoff 1970). Davidoff and Davidoff (1970) identified the problem with zoning as courts’ deference to the idea that local zoning only had to protect the public health, safety, and welfare of the public within the zoning jurisdiction. As zoning powers are derived from the states, Davidoff and Davidoff argued (1970), so they should be used to protect the public health, safety, and welfare of all the residents of a state. Thus, it should be a matter of state concern that localities cannot exclude multifamily development, exclude smaller residential units, or plan for minimum lot coverage or density in a discriminating fashion (Davidoff and Davidoff 1970).

Since Davidoff and Davidoff’s writing, a number of states have taken steps to hold localities responsible for a broader concept of the general welfare. New Jersey, as mentioned previously, did so after the Mt. Laurel cases but with mixed results to date. Not many scholars discuss state intervention into municipal zoning practices explicitly as a matter of expanding racial and ethnic integration. Seitles (1998) is one author who analyzes a number of state-driven inclusionary projects on the basis of their effectiveness promoting racial integration, discussing appeals processes for affordable housing developers blocked by exclusionary local zoning in Connecticut and Massachusetts, and requirements that localities plan for greater production of affordable housing in Oregon and California.

Numerous local jurisdictions have on their own accord pursued approaches distanced from traditional exclusionary schemes. Pendall, Puentes, and Martin (2006) surveyed municipalities in the United States’ fifty largest metropolitan areas, finding many metropolitan areas to be distinguished by a reformist regulatory culture. These metropolitan areas have less concentrated poverty and lower levels of Hispanic segregation, likely outcomes of their jurisdictions’ openness to higher residential densities.

In 1974, Montgomery County, Maryland, introduced the first mandatory inclusionary zoning program, allowing density bonuses for developers in exchange for the provision of affordable units. The goal of opening the suburbs to minorities was a principal motivation for inclusionary zoning laws’ 1970s proliferation, although jurisdictions now use them to address a broader set of problems related to regional housing shortages and high housing prices (Benson 2009). Because inclusionary zoning ties affordable housing production to the construction of market-priced units, it is a socially and economically integrating tool (Benson 2009). In both Montgomery County and nearby Fairfax County, Virginia, 1990s surveys found that the majority of affordable unit buyers belonged to racial and ethnic minority groups, leading Brown (2001) to conclude that inclusionary zoning ordinances encourage racial integration. Inclusionary zoning is not just about integrating suburbs but maintaining diversity in gentrifying urban neighborhoods. Reflecting on the displacement of long-term, lower-income minority households from New York City neighborhoods in the wake of gentrification by higher-income whites, Freeman (2006) argued that an inclusionary zoning scheme mandating the inclusion of affordably priced units in new developments may decrease the likelihood of complete population succession.

Scholars have also reviewed the use of zoning to achieve a less inequitable distribution of hazardous and otherwise burdensome uses. The National Academy of Public Administration (2003) found that grassroots activism has usually been the catalyst for addressing environmental justice concerns and argued that local governments should use planning and zoning to show leadership in this area, providing several examples where local governments have successfully done so through their permitting procedures. Arnold (1998, 99–106) detailed several examples of zoning tools useful for hazardous land-use remediation: these include permit denial in areas with overconcentrations of hazardous uses, bans on specific nuisance uses, groundwater protection overlays, redefining hazardous land uses as conditional uses, downzoning, and buffer requirements.

Bellows (2014) reviewed the effects of 1971 California legislation that declares null and void any planning or land-use action that disproportionately negatively affects any group (defined by race, age, etc.). This legislation speaks to both the integrating and protective potential of zoning practice in regard to racial and ethnic minorities. Plaintiffs have successfully used the measure in courts to block voter initiatives, growth caps, and other planning measures that would reduce the supply of affordable housing and result in displacement of disadvantaged groups (Bellows 2014, 4). Bellows argues that the legislation could serve as a national model for states wishing to target the implicit bias behind planning decisions that degrade racial and ethnic minorities’ communities.

In recent decades, the field of public health has contributed a significant amount of scholarship to the literature on zoning. This scholarship focuses on how zoning’s control of the physical character of neighborhoods can contribute to both healthy and unhealthy lifestyles. Wilson, Hutson, and Mujahid (2008, 213) point out that minority urban neighborhoods in the United States feature underconcentrations of “health-promoting facilities” such as supermarkets and an overconcentration of “health-restricting facilities” including liquor stores and fast-food establishments. They argue that planners should pursue zoning reforms in minority neighborhoods with high concentrations of health-restricting facilities in order to restrict the proliferation of these establishments. Chen and Florax (2010) provided a similar argument regarding the concentration of health-threatening land uses in minority areas and detailed a methodology for identifying candidate neighborhoods for zoning reform. Rossen and Pollack (2012) have also urged that zoning reform should encourage access to healthier food in minority communities, notably by making it easier for supermarkets and urban agriculture to enter communities where accessing healthier foods is difficult. They also argued that reform should promote healthier activities in minority communities by providing recreational space, neighborhood commercial areas, and other amenities within walkable distance from residential areas. Other public health scholars (Ransom et al. 2011) have also made the connection between “health equity” and zoning reform.

Conclusion

This analysis has considered literature on the experience of racial and ethnic minorities with zoning in the United States. This literature focuses in particular on two of zoning’s effects on racial and ethnic minority communities: (1) the exclusion of minority households from areas whites find desirable and (2) the inadequate protection of minority communities from intensive commercial and industrial land uses vis-à-vis the degree of protection given to white communities. A comparatively small amount of scholarship deals with the use of zoning as a tool of racial and ethnic integration or as a tool for the protection of racial and ethnic minorities.

The literature cited here principally focuses on disproportionately negative effects suffered by racial and ethnic minority communities relative to the white majority. Members of all groups have suffered the implications of poor zoning decisions, but this literature tends to indicate that racial and ethnic minorities have suffered from undesirable outcomes of zoning decisions to a greater degree than their white counterparts. This literature has not been consistently able to determine the extent to which the inequitable effects of zoning are due to direct targeting on the basis of race or ethnicity, especially given that so many zoning practices with negative implications for minorities also more broadly affect lower-income households. Planners and legislatures may have targeted minority communities with unfavorable zoning because of land values, political convenience, or some geographical feature. However, any of these reasons may have some embedded racial implications upon further examination. The strict standards of intentionality historically demanded by the courts and in the academy may serve simply to prevent understanding of “how racism works” in zoning implementation (Reskin 2012).

As noted previously, the Supreme Court ruled in 2015 that the Texas Department of Community Affairs had violated the FHA because it allotted tax credits for low-income housing developments in majority–minority areas, this amounting to a disparate policy impact on white and minority neighborhoods (US Supreme Court 2015). Thus, the time is ripe for more research aimed at better understanding the disparate impacts of zoning across American cities’ color lines. Scholars can especially do more to better assess the existence of disparate impacts through comprehensive studies of where zoning decisions related to these exclusive, intensive, and expulsive effects happen. Arnold (1998) came close on this front by comparing the characteristics of zoning in minority and majority neighborhoods. Only Maantay (2002), however, has considered, comprehensively at the scale of an entire jurisdiction, the demographic characteristics of neighborhoods where potentially disruptive zoning decisions happened at the time that they happened. Although any researcher is unlikely to find that any particular decision was clearly racially motivated, consistent differences in the zoning of majority and minority neighborhoods may indicate embedded, implicit bias among decision makers.

In another recent development, HUD’s 2015 “AFFH” rule provides resources to recipients of HUD funds so that they may assess barriers to integration. Partnerships between HUD program participants and scholars can hasten the performance of these assessments and the formulation of new policies. Scholars can specifically respond to the AFFH by working to expand the body of literature that explicitly reviews the role of zoning as a tool for racial and ethnic integration: to date only a small amount of research has considered the racial or ethnic characteristics of households benefiting from inclusionary schemes.

The planning academy and scholars in related fields seem well positioned to further investigate the experience of racial and ethnic minorities with zoning practice in the United States, given the existing foundation of research in this area. In this time of heightened awareness of bias within public institutions and the courts, as demonstrated by Inclusive Communities and the AFFH, scholars have new opportunities to bring about further understanding of zoning’s role in the creation and preservation of segregation and to help generate a method of zoning practice that is purposefully integrative and protective in its approach to racial and ethnic minorities.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

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