Abstract
When the 1926 Euclid v. Ambler decision found municipal zoning valid under the U.S. Constitution, previous state cases opposing the practice were overruled and subsequently almost forgotten. This investigation analyzes those early State Supreme Court cases to determine systematically the basis of these rejections. After constructing a contextual background of the legal arguments that could have been used by the judges, I assess cases to determine which were used, and find a dominance of concern regarding land use segregation justified by municipalities through an “aesthetics” defense. I conclude by considering links between these cases and current controversies.
Keywords
Introduction
When the United States Supreme Court (USSC) upheld the constitutionality of municipal zoning in the 1926 Village of Euclid v. Ambler Realty Co. decision, numerous State Supreme Court rulings striking down the practice were supplanted. 1 Justice Sutherland’s majority opinion, however, includes only a fleeting reference to these earlier decisions “for the contrary view.” In this investigation, I reconsider these largely forgotten cases in order to catalog and assess the overall patterns of opposition. The analysis reveals they reflected pertinent legal arguments of their time, with challenged municipal zoning efforts invalidated through a variety of justifications, mostly centered on interpretations of substantive due process and the police power.
In overturning a 1924 lower court decision, Euclid is generally portrayed as the last word on the legality of zoning in the United States. In that initial Federal District Court ruling, Judge David C. Westenhaver had upheld Ambler Realty’s claim that the Village of Euclid’s zoning ordinance was unconstitutional, absent compensation to the landowner. 2 Apparently surprising some observers with its subsequent reversal, the high court endorsed not just Euclid’s plan but the facial legitimacy of efforts in other cities as well. 3 The majority (for a 6–3 decision with no published dissent) supported the argument that Euclidean-style zoning was an appropriate exercise of municipal authority, although stressing the practice remained open to challenge on the basis of unreasonable or arbitrary application. Following this breakpoint, the prior precedent in opposition was largely ignored, leaving no comprehensive account of those rulings. If considering them at all, reflective commentary tends to presume they were produced by recalcitrant judges unwilling to adapt to changing circumstances.
To remedy this inattention, I first summarize the leading legal arguments against zoning offered in these pre-Euclid years, and then review 28 State Supreme Court opinions to determine patterns of how these justifications were employed. The findings show these courts mainly eschewed a strict natural rights perspective, recognizing the inherent and generic authority of the police power. Still, the judges concluded that even that broad power did not provide sufficient justification in the cases at hand. Of particular complexity is their grappling with discrete sub-categories within the police power framework. The consideration of how nuisance, general public welfare, and aesthetics all failed to validate government actions highlights zoning’s uneasy fit within a constitutional context, Euclid notwithstanding. Finally, I consider the relevance of these legal concepts to modern debates on land use restrictions. To a degree, all have reemerged; in particular, early disagreement over the necessity and propriety of separating land uses are pertinent to contemporary reconsideration of single-family exclusive zones.
Legal Context of the Pre-Euclid Cases
Although systematic assessments of these early cases are lacking, there is a substantial body of scholarship on their context—the pre-Euclid era’s bumpy evolution toward legal recognition of zoning and other land use regulations. 4 In this section, I compile contemporaneous commentary, along with modern reflection, to construct a background of the arguments these judges could have relied upon to strike down these ordinances and actions. This will serve as backdrop to my investigation of which arguments they did employ.
Natural Law
I begin with the natural law doctrine, which considers property rights so fundamental that virtually any attempt to inhibit them, through constitution or legislation, is illegitimate. Unless redressing blatant nuisances, land use restrictions are valid only with compensation, per the takings clause of the Fifth Amendment. 5 In the Federal District Court Euclid decision, Judge Westenhaver utilized the principle to denounce the Village plan, finding it contrary to the core state function to protect property values, rather than diminish them. Yet, there is scant evidence of its wider influence on judges. While Gardner concludes “several state and federal judges of the 1920s wielded natural rights principles to strike down early zoning ordinances,” the position is not reflected in commentary of the time. 6
Substantive Due Process (SDP) and the Police Power
Given the apparent weakness of the natural law perspective within this milieu, the primary pre-Euclid legal consideration was the extent to which the generic police power, as granted by states to local governments, enabled local zoning efforts. This was generally discussed under the umbrella term of SDP, and while that phrase is sometimes associated with an overreaching judiciary, it represented a legitimate standard of constitutionality in the land use realm at that time (and beyond). While “the nature of police power prevents precise definition,” its relevance to land use emerged through the fairly strict lens of nuisance or the more relaxed concept of general welfare protection. 7 The accrued common law of nuisance allows reactive prohibitions of land uses that impair private property and public health, while the broader approach sanctions a more proactive and positive role. From the late 19th century through the 1920s, precedent progressively accepted greater freedom for local governments to enforce rules from either premise, especially in rapidly expanding urban and suburban areas. 8
Yet this trend toward leniency was bounded by countervailing principles that courts would also have considered. Both nuisance and general welfare arguments had a somewhat uncomfortable fit with land regulation. Nuisance, even when broadened from “in fact” (harmful only in a particular context) to “per se” (always harmful),” did not conclusively justify zoning and other proactive restrictions. 9 Resistance arose, for example, to classifying a shop presenting no perceptible danger as a nuisance within a residential neighborhood. While some early commentators deferred to city officials to define nuisance as it made sense within their municipal context, even zoning pioneer Edward M. Bassett conceded that municipalities often used it as a ploy, “where use zoning was in doubt.” 10 These “early legal fictions” meant to justify zoning through manufactured nuisance validations, such as public health and morals, may not have been enough to convince judges of constitutionality. 11
Moving to the broader, general welfare justification, Revell maintains nuisance law was never perceived as a legally sound zoning defense. 12 Rather, he argues the practice was salvaged by comprehensive planning, satisfying SDP without having to meet nuisance standards. 13 From this perspective, judges likely to reject a simple nuisance premise may yet have been swayed by evidence of a rational and holistic approach to enhancing public welfare, and deferred to that consensus of expertise. 14
Still, none of this represented a panacea to legal challenge, and “framing a legally unjustifiable regulation within the context of a comprehensive ordinance did not. . . render that regulation valid.” 15 More importantly, the concept of comprehensive planning at the time may have meant little more than, at best, an all-inclusive zoning map, with a questionable link to planning principles. 16 Furthermore, modern authors comment on the era’s disconnection between comprehensive community design tools planners hoped to import from Germany, and the cramped and potentially flawed translation of those ideas into American style zoning. 17 This all may have blunted that expected judicial deference to planning expertise. If the link between planning principles and the general welfare was not reflected in these local actions, then judges may not have found a definitive consensus to which they could defer.
Another vulnerability nested within this larger question of appropriate use of police power was the lawfulness of segregation of housing type, strongly advocated by at least some planners as a means to protect single-family homes, the “backbone of our nation.” 18 Planner/attorney Frank B. Williams argued insulation of the single-family zone was the only legal “distinction of importance,” as it was “most essential to the public welfare.” 19 Others maintained that safeguarding property values through these districts also fit well within the scope of police power. 20
Cautionary warnings emerged, however, on how courts might respond to challenges to segregation of single and multi-family dwellings. Lauster argues that apartment houses in this era were considered equivalent to commercial houses, firmly establishing their difference in kind, not just density, from single-family homes. 21 Yet, while echoed to an extent in the USSC Euclid decision, that viewpoint was not necessarily dominant. Encouraging strategies to protect homes from detrimental apartment buildings, planner Lawrence Veiller still advised that multi-family uses were unquestionably residential and thus not legally severable. 22 Planner Harland Bartholomew counseled “the most competent authorities on zoning hesitate to advocate the establishment of more than one general residential district.” 23
Finally, the single-family district was potentially vulnerable to racial and ethnic discrimination claims given USSC precedent. In Yick Wo v. Hopkins, the Court supported a claim that the San Francisco Board of Supervisors arbitrarily exercised their permitting discretion, in consistently denying approval for Chinese laundry proprietors. 24 Decades later, Buchanan v. Warley struck down Louisville, Kentucky’s residential racial segregation ordinance for interfering with the right of citizens to dispose of their own property. 25
Yet, neither of these opinions spoke directly to the legality of zoning per se, let alone to exclusively single-family zones that indirectly furthered class and race segregation. While clear in retrospect that this districting was intended to exclude groups seen as undesirable, the prevailing view at the time touted it as foundational to the public interest, and safely within constitutional safeguards. 26 Still, there was some wariness in evidence, for example in Bartholomew advising cities to “avoid any suspicion or suggestion of localism else the courts will most certainly pronounce them discriminatory and hence illegal.” 27
The Aesthetics Complication
A related dialogue among planners and attorneys was legitimacy of aesthetic restrictions, whether under a nuisance or public welfare standard. Gilliam declared that while most jurists considered aesthetics unacceptable, others accepted it as a stand-alone defense. 28 Light also commented on its diffident currency, as judges tended “to flirt with aesthetics without saying how seriously,” but McQuillin more vigorously concluded restrictions “for purely aesthetic purposes are regarded as invasions of private property rights.” 29 Planning authorities expressed concerns of legal validity. For example, Bassett dismissed zoning meant “to bring about some desired architectural arrangement” as unlawful, while Freund (warning that the legal limits of zoning were still unsettled) emphasized “a regimented beauty suffers in comparison with freedom that expresses itself in variety and even asymmetry,” suggesting judicial resistance to the tactic. 30
Complicating the matter significantly, the implication of the term varied. Thus, Euclid attorney Metzenbaum (in response to the charge that zoning was “merely an attempt to regulate aesthetics”) asserted that “orderliness was being confused with beauty.” 31 The potential entangling of the two concepts is illustrated by Williams’ portrayal of “a city built economically and efficiently for residence, business and industry” as “pleasing to the eye.” 32 The term eventually evolved to incorporate orderliness, encompassing proscription of commercial and residential (or multi and single-family) integration.
To summarize, while consensus on judging zoning’s propriety through some substantive due process lens was apparent, discord emerged on the correct interpretation from this perspective. Nuisance was a solid premise, but disagreement arose on whether it fit these sorts of cases, while the expansion of the police power to non-nuisance land uses was not universally accepted, especially in regard to the single-family exclusive district. Finally, discrimination presented a conceivable legal defect, and aesthetics roiled the conversation, with substantial disagreement on its appropriate, and legally defensible, role.
Procedural Due Process (PDP)
Due process of the procedural variety suggested another vulnerability. Even if regulations passed substantive muster under the police power, they still had to be applied in a fair and non-arbitrary manner. Warnings were typically raised by zoning advocates to insure against charged PDP violations. For example, a zoning ordinance adopted without any opportunity for input from affected landowners would likely be suspect.
In fact, the Standard Zoning Enabling Act (SZEA), versions of which were produced by the U.S. Department of Commerce in 1922, 1924, and 1926, was designed to allow zoning to proceed, “without injustice and without violating property rights,” by providing a framework for state enabling of local ordinances. 33 Its model language included provisions such as public hearing rules, and standards for appeals. The SZEA also touched on equal protection guarantees, emphasizing comprehensive ordinances and uniformity within districts to insure equivalent treatment of all property owners. 34
Given the Act’s release date, however, earlier regulatory efforts may have suffered from PDP lapses. Furthermore, the SZEA was advisory, and not immediately accepted by all states. Nor was it necessarily followed faithfully where it was adopted, and some municipalities may have initiated zoning absent a requisite state enabling law. Therefore, in this earlier period, PDP violations may have prompted successful legal challenge. Furthermore, these safeguards were meaningfully yoked to substantive concerns, as attention to procedural details could offset the formidable empowerment afforded by a liberal judicial interpretation of SDP. As Hirt comments, “although U.S. zoning laws gave municipal governments great powers, they deliberately sought to limit those powers by giving those who wielded them little room for discretion.” 35
Summary of Pre-Euclid Context
While the USSC Euclid decision was ostensibly surprising to contemporaneous observers, perhaps it should not have been. Advocacy of zoning from the business community, local boosters, and at least some planners was evident. More importantly, legal precedent had been evolving in that direction, and the majority of courts hearing prior challenges upheld the practice. Still, that supportive context was not all encompassing, and too little attention has been paid to the form and prevalence of opposition.
From this review, the most significant challenge appears to be the broad category of police power violation. The background literature mentions it most often and it encompasses the unsettled questions of appropriate use of nuisance, general public welfare, and aesthetics. However, a natural rights perspective, procedural due process failures, and discrimination were also potential foundations of legal resistance. In the next section, I outline a research design to facilitate cataloging and analysis of these premises in pre-Euclid State Supreme Court decisions upholding challenges to zoning rules.
Collecting and Coding the Decisions
My data set originates very modestly, with the three contrary opinions Justice Sutherland acknowledges in his Euclid decision, and expands from there. Metzenbaum’s brief for the Village of Euclid, as well as subsequent sources provide a few more relevant cases. 36 More importantly, all of these opinions in turn provide additional citations, ultimately growing to a set of 28 State Supreme Court opinions in which plaintiff’s challenge to a land use regulation was successful (see list of cases, listed chronologically, in Appendix). I chose to focus on this venue for comparability and consistency and to avoid duplication of cases that moved up the appellate chain. Federal cases specifically regarding zoning were virtually non-existent, with the Federal District Court level Euclid opinion an unusual exception, emphasized by the fact that the decision was quickly accepted for USSC appeal, wherein the matter was settled. 37
The small number of cases is unsurprising given Bassett’s conclusion that challenged acts were upheld in “nine cases out of 10,” and mirroring conventional wisdom that courts commonly supported these municipal actions. 38 I emphasize, however, that this analysis is not meant to establish an official count of pro versus anti-opinions, to assert patterns by state, or to argue that opposition has been undercounted, but rather to consider the arguments employed. 39 The most important evidence to be uncovered here is the aggregate pattern of grounds for overturning the challenged regulation.
The data set includes decisions on lawsuits in 13 states, from 1893 to 1925. Each of the cases involved a landowner challenging not just the application of the ordinance in question but generally (to the extent the records reveal this detail) its facial legitimacy as well. More importantly, the decisions are clear in confirming that the courts struck down the entire ordinance, finding it facially invalid, in all but three cases in this data set. 40 Given the subjectivity of the term, and the lack of full background information in the opinions, I cannot determine definitively whether the restriction originated in a “comprehensive” plan, but the time frame renders that scenario unlikely. That probability complements the facial rejections, as it would have been feasible for judges to invalidate these relatively narrow ordinances that often represented a zoning prototype, for example restricting non-residential uses only in particular neighborhoods. Still, these efforts may have originated from some attempt at a broader planning effort and/or an inclusive zoning map.
In conjunction with the background context, coding was a straightforward exercise. When judges based their ruling on natural law, police power, etc., those are precisely the terms they used. This is not to say there is an objective definition of “aesthetics” or “nuisance,” distinguishing those cases conclusively from one another or from the more generic police power argument. My categorizations simply reflect the court’s depiction of the legal concept in question. Some cases received a double code, when the opinion mentioned two premises. These combinations all paired procedural due process with another factor, as further discussed below.
Findings
Natural Law
To begin, echoing its relatively faint presence in the background legal context, natural law was not commonly offered in resistance to land regulation in these opinions, appearing in just four cases. In these opinions, judges employed natural rights language to justify striking down a municipal action. Possibly the best known is Texas Supreme Court Chief Justice Phillip’s ardent response to a limitation of stores in residential areas in Spann v. Dallas (1921: 515), in which he opined that the police power “will not be suffered to invade or impair the fundamental liberties of the citizen, whose natural rights which are the chief concern of the Constitution and for whose protection it was ordained by the people is inferior to the rights of private property.” The New Jersey Supreme Court issued a similar holding in Ignaciunas v. Risley (1923). And, in two early Missouri cases (St. Louis v. Hill in 1893 and St. Louis v. Dorr in 1898), different judges dismissed municipal regulations (the first barring a particular business and the second a building setback) as clear violations of property rights in the absence of compensation, described as “a taking by mere arbitrary edict” (St Louis v. Hill, 1893: 862).
Procedural Due Process
The PDP basis of rejection was also of minor import, appearing in only six opinions. Furthermore, it appeared as sole justification only in People ex. rel. Roos v. Kaul, regarding the disputed meaning of an Illinois town’s ordinance that may have unfairly, yet inadvertently, advantaged existing businesses in a certain area. In the other cases, PDP was raised as a secondary concern. This undercuts warnings by early planning advocates that the most pressing threat to zoning’s legality would be failure to follow clear and fair procedural standards.
The few judges pointing out PDP flaws focused on clarity or the basis of variances. The Goldman v. Crowther (1925:49) opinion (pairing PDP with aesthetics) explains, “the zoning ordinance is not objectionable because it delegates a discretion to the zoning board of appeals, but such delegation is objectionable because there is a failure to provide any proper standards [for] the exercise of that discretion.” The aforementioned Spann decision (1921:516), premised mainly on natural law, faulted a rule allowing property owners to sidestep a ban on mixed use through the approval of neighbors, observing, “if the presence of a store in a residence district is a hurtful thing. . . certainly it is not rendered less harmful by the fact that three-fourths of the property owners. . . consent.”
Police Power Overreach
The most common justification for overturning regulations echoed the predominant concern outlined above—violation of SDP through overreach of police power. Furthermore, these similarly group into the three sub-categories: nuisance; general public welfare; and, aesthetics.
Nuisance
Perhaps a result of planning professionals imploring cities to move away from this legal premise, only six cases included a nuisance justification from the municipality. Still, as those planners had warned, judges struck these actions down as an inappropriate exercise of this narrow and distinct legal concept. The Maryland high court, for example, declared “a municipality has no power to declare a thing a nuisance which is not at common law and not declared by statute.” (Hagerstown v. B & O Railroad, 1908: 492). That case was particularly notable since the banned use was a temporary stockyard located near homes; still, the court found no defense in common law, or a state grant of power, for prohibition of the holding pens for transported animals. Correspondingly, Denver v. Reyes (1909: 1045) decried the arbitrariness of restricting a brickyard from a residential area, objecting that, to the City “it matters not whether such business is in truth detrimental or obnoxious.” The putative health hazards emanating from an ice making plant, somehow worsened by its proximity to a church, in Lincoln Ice Co. v. Chicago (1913), were similarly dismissed.
In the opinion of these courts, municipalities presented unconvincing portrayals of the restricted uses as actual nuisances. Furthermore, attempts to argue they were akin to nuisance was also insufficient. Overall, this small group of opinions anticipate and forewarn Justice Sutherland’s future Euclid metaphor, that “a nuisance may be merely the right thing in the wrong place—like a pig in the parlor instead of the barnyard,” cautioning that judicial complicity in such a relaxing of traditional nuisance boundaries would enable excessive local authority (370).
General Public Welfare
In six cases, while acknowledging the generic validity of police power justification for land use beyond nuisance, the rulings found the actions exceeded acceptable margins of securing health, safety, and welfare. These judges perceived a mismatch between appropriate police power—targeting some clear, if only potential, public harm—and the seemingly unbounded and amorphous nature of these challenged rules. In Bostock v. Sams (1902: 667), where the City of Baltimore turned down an application to open a zoo that failed to “conform to the general character of the buildings in the said locality,” Justice Jones found “no standard is set up according to which this judgment is to be exercised” (668). A similar perspective emerged in Roerig v. Minneapolis (1917), rejecting an ad hoc denial of a four unit residential complex in an area dominated by single-family homes. Two cases, one from New York and the second from California, (Corn Hill Realty Company v. Stroebel 1913 and Pacific Palisades Association v. City of Huntington Beach 1925) found restrictions arbitrarily biased —against automobile-related businesses in the first, and oil drilling operations in the second.
Other decisions in this category nullified inflexible ordinances that did not just regulate but proscribed particular uses in delineated areas. In Handy v. South Orange (1922), the New Jersey Supreme Court ruled that while restrictions might be warranted under the police power, a ban on duplexes in single-family home districts went too far. This was also the basis for overturning Jackson, Mississippi’s disallowance of all stores in residential areas in Fitzhugh v. Jackson (1923: 605), where the Court was troubled by “such a sweeping ordinance,” unmitigated by any sort of classification system to allow even small neighborhood groceries. In short, opinions in this category moved beyond a rigid, natural law-based resistance to any restrictions on property rights, acknowledging generic municipal authority to restrict without compensation. Still, these judges found the particular challenged actions fell short of appropriate police power standards.
Aesthetics
Somewhat surprisingly, because it occupied a thorny space between nuisance and general welfare, the impropriety of aesthetic regulation is the basis of the plurality of these opinions (11 of 28). To be sure, there is no manifest distinction between this legal grounding and the general police power, or even nuisance. Still these cases are set apart because the judges (rather than the plaintiffs or the defendants) specifically used the term “aesthetics”—both in describing the nature of the regulation and as the premise for its rejection. Thus, just as the background legal and planning literature presented a separate category of discussion for aesthetic consideration, these cases offer a distinct response from the courts. The term is employed to convey these challenged actions as particularly egregious violations of police power standards.
Without putting too fine a point on it, a distinction emerges between opinions based on the general police power premise and those invoking aesthetics. In the former, municipal actions fell short because it was unclear how they fit under police power authority. This may be traceable to the scarcity of truly comprehensive planning efforts (and lack of professional consensus) at the time, as several commentators of the time had emphasized. For example, while some restrictions might be warranted, the judges cautioned that prohibitions on a particular use in a given location, such as barring any businesses on a particular street, needed to be better explained and justified within a broader effort. Or, that a less arbitrary standard of application for restricted uses was in order. That is, the illegality was typically a matter of degree. On the other hand, judges relying on the aesthetics premise articulated greater concern that municipalities were patently attempting to inflate police power scope, by appending a novel and incongruous premise for its use. Here, the infraction is more substantive, implying a standard well beyond even the elastic boundaries of the police power.
To make that point rhetorically, these opinions tend to employ adjectives indicating an utter lack of legitimacy given the absence of any other justification—e.g., mere aesthetics, pure aesthetics, or aesthetics only. Thus, the Maryland high court found a restriction on a tailor shop in a residential area to be “wholly arbitrary,” as resting “solely upon aesthetic ground” in Goldman v. Crowther (1925:60). Stated unequivocally by the Colorado Supreme Court in Willison v. Cooke (1913; 328), aesthetics-based restrictions “do not, in the slightest degree, have any relation whatever to the health, safety or general welfare of the public.”
Some opinions take the point further, by suggesting the consequences of allowing these transgressions to stand. In striking down a restriction on junk yards in industrial areas, the St. Louis v. Evraiff (1923:495) decision warns of a clash between aesthetics and “the spirit of our democratic institutions,” and the judge in White’s Appeal (1925:411) referenced a setback standard precluding enclosure of a front porch in Pittsburgh as “regulation gone mad.” Byrne v. Maryland (1916: 211) described a limit on apartments in residential neighborhoods as “carrying the police power to an extent that would alarm the public”
Some of these judges validated the inexorability of their ruling by citing putatively unwavering precedent. After acknowledging the many instances where police power is a valid premise for land use regulation, Minnesota’s State ex. rel. Lachtman v. Houghton (1916: 237) ruling concludes the illegitimacy of aesthetics-based restrictions was “so universally recognized that an extended search has failed to disclose any decision holding otherwise.” Byrne similarly resolves “the courts of this country have with great unanimity held that the police power cannot interfere with private property rights for purely aesthetic purposes.” While the Missouri case of State ex rel. Penrose Investment Co. v. McKelvey (1923: 477) obliquely references the cachet of the concept, acknowledging that some courts might “recognize the aesthetic” in their reasoning, it goes on to conclude that, “their rulings. . . [follow] the principles which had their origin in the common law concerning individual and property rights.”
Discrimination
Finally, I address allusions to discrimination and equal protection violations. This legal premise does not warrant a discrete code, since it appears only as undercurrent in a few opinions, referenced in dicta but not forming the basis of the ruling. Its minor significance here reflects the similar scarcity of commentary on this matter in the background literature of the time. More directly, none of the plaintiffs in this data set claimed discrimination against a particular class of people, but rather challenged classification of uses. 41
Still, a few judges indicated concern regarding inequities linked to land use policies. The earliest mention came in an 1886 Mississippi case, ultimately decided on nuisance grounds, challenging a prohibition on structures interfering with the bay view of wealthy property owners, with Chief Justice Cooper concluding “the law can know no distinction between citizens because of the superior cultivation of the one over the other” (Quintini v. Bay St. Louis 1886:628). Other opinions infer class-based motivation (or consequences) of a challenged restriction, typically in response to barring multi-family or commercial uses in single-family areas.
The opinion in Twin City Building v. Houghton (1919: 886, 887) linked aesthetic rationalizations (both in regard to separating uses and visual harmony) to social segregation objectives, observing, “it is true that apartment buildings are not welcome in exclusive residence districts. Their appearance is not liked. They bring more people into the neighborhood and their presence there and their going and coming is thought by some undesirable.” Furthermore, the Minnesota Supreme Court concluded that, if these sorts of restrictions were allowed to stand, “a step will have been taken inevitably to cause discontent with the government as one controlled by class distinction, rather than in the interests and for the equal protection of all.”
Overall, while suspicion of zoning’s class-based tendencies led some judges to doubt cities’ loftier claims of enhancing the general welfare, their comments called out snobbery more than discrimination. Ignaciunas is the only opinion specifically raising the illegality of discrimination against protected classes, but that point was tangential to the case at hand.
Conclusions
If the post-Euclid nation had never again revisited the essential wisdom of zoning, this cataloging of early decisions might be of limited interest. And, to be sure, conventional wisdom suggests the USSC did settle the matter once and for all in 1926, with subsequent considerations focused only on narrow application, not inherent legitimacy. This description is sound to a degree, but in fact debate over legal propriety never really disappeared, and may have regained ground over time. While these cases represent a minority view, as most courts approved these measures even pre-Euclid, this review of the ideas they presented provides a useful framework of key constitutional concepts. In this section, I consider what the aggregation of these cases reveals about their context, and connections to modern discussions.
To begin, the limited number of opinions relying upon natural law indicates jurists have long been comfortable with government’s need to restrict property rights to some extent. This finding corrects earlier accounts assuming all pre-Euclid opposition was grounded in natural rights principles. While decisions within this category were emphatic, there were too few of them to consider this a widespread perspective. Still, what this philosophy lacked in influence it made up for in staying power, as it was revived by the late-twentieth century property rights movement. For example, the wariness of these early judges is echoed in Epstein’s description of putatively reasonable regulations as, “the close substitutes to which a crafty legislature may turn if the direct path to property confiscation. . . is blocked.” 42
The clearest connection between these cases and the subsequent legal landscape, however, is that some aspect of SDP remains the most likely concern. Within that realm, the analysis found few rejections premised on an invalid application of nuisance principles, perhaps because municipalities avoided the miscalculation of linking zoning and design standards to prevention of public harm. The latest case in the data set to attempt a nuisance defense was from 1913, suggesting lessons learned that the approach might not pass muster with exacting judges.
Yet, its reappearance in the Euclid decision presaged Delafons’ later observation that “generally speaking, the courts have continued to find comfort in the analogies with nuisance law.” 43 O’Hara notes its strong presence in the 1978 Penn Central decision, through citations to late 19th and early 20th century cases, concluding “the Court had finally done explicitly what its cases had been foreshadowing for a century: it extended the nuisance rationale to any land-use regulation with a potentially public character.” 44 (Interestingly, nuisance is the sole legal premise apparently to strengthen over time as justification for zoning restrictions.)
While other rulings in this investigation found particular municipal actions falling short under a general welfare defense, those judges still accepted the generic concept of the police power granting some land use regulatory authority. They simply failed to find its justification in the facts at hand, for example, due to a lack of clarity on exactly how a restriction improved public welfare. The Euclid decision may have mitigated these sorts of concerns by shifting the burden of proof to a simpler test—not if the regulation itself was adequately justified, but whether it adhered to some sort of comprehensive plan, henceforth granted routine deference as an instrument of public welfare. That likelihood remains robust. Peterson calls a comprehensive plan a “court-proof ordinance,” and Nolon, Ferguson, and Field conclude judges remain “reluctant to substitute their opinion for that of the local government.” 45
However, commentary suggests that the authority of this convention weakened in the late 20th century, with the USSC’s Nollan v. California Coastal Commission ruling presented as evidence of the shift. 46 Kayden maintains that case signaled a decline in automatic deference to actions within a comprehensive plan, as “the Court appears to command judges to ratchet up their level of scrutiny, and thus their level of participation, in the planning and zoning of American communities.” 47 Similarly, the dialogue presented in Blaeser and Weinstein suggests “the courts will [now] look critically at comprehensive plans themselves.” 48
On the other hand, the frustrating subjectivity of the aesthetics objection may have undermined whatever limited power it once held to foil zoning. Judges in the earlier aesthetics cases strove to articulate how far beyond police power boundaries these sorts of restrictions had strayed. The opinions engaged the concept pejoratively, harshly discounting its use as premise not just for ordinances regulating appearance and form (which was and remains today a controversial basis for the police power) but also for land use segregation.
In retrospect, however, the ambiguity of the meaning of aesthetics may have limited the resonance of these rulings. The Euclid majority’s clear-cut embrace of use segregation as an appropriate exercise of the police power, notwithstanding (and indeed completely ignoring) any origins in aesthetics, streamlined legal consideration. This acquiescence allowed courts more readily to take cities at their word (especially if bolstered by a comprehensive plan) that mixed land uses represent a potential nuisance, or at least some sort of threat to the public good. More likely, zoning’s growing popularity pushed the understanding of those boundaries to the point of accommodation.
Yet, modern debates are revisiting the dissonance between use segregation and police power. These older views reverberate, for example, in New Urbanism’s generic emphasis of “shortcomings of the segregation of land use.” 49 More specifically, the recent push in some cities to allow, or incentivize, multi-family structures in single-family zones suggests strict separation of these categories is not just unwarranted but potentially harmful, contributing to housing shortages and social inequities. Manville, et al.’s commentary is particularly trenchant, noting that single-family exclusive zoning represents “the sort of problem planning was designed to solve. . . an inefficiency that arises when people pursuing their own ends generate an outcome that harms the larger whole.” 50 Assertions that the efficiency/public good foundation of police power is absent, as indeed some of these early judges concluded, re-introduces this legal retort to Euclidean zoning.
Overall, contemporary refutations of the sanctity of the comprehensive plan and land use segregation alone do not directly threaten the legal basis of conventional zoning. But they could further erode the authoritative link between public welfare and the value of rigidly separated uses. 51 Just as internal disagreements among planners pre-Euclid may have undermined judicial deference to professional consensus, the modern embrace of mixed use could exert a similar effect, with a police power defense of the Euclidean model losing its clout. 52
State Supreme Court opinions “for the contrary view” were largely forgotten since the Euclid decision set them aside. This inquiry has let them tell their story, not simply on a case by case basis, but through the patterns of legal resistance to zoning and other land regulations they provide. While they represent a minority view, the array and substance of this aggregated legal rejection of zoning is now better cataloged and clarified. Moreover, a bridge from these century-old cases to modern dialogue has been sustained. While modern attention has focused on policy-based opposition to Euclidean zoning, supported by a return to older and more traditional planning practices, this analysis suggests that pre-Euclid legal concepts may also warrant a second look.
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
Case Table.
Case #
Case Name
Citation
Year/State
Decision basis
Class-based commentary
1
St. Louis v. Hill
22 S.W. 861
1893/MO
Natural Law
No
2
Quintini v. Bay St. Louis
1 So. 625
1886/MS
Nuisance
Yes
3
St. Louis v. Dorr
46 S.W. 976
1898/MO
Natural Law
No
4
Bostock v. Sams
52 A. 665
1902/MD
Police Power
No
5
Hagerstown v. B & O RR
68 A. 490
1908/MD
Nuisance/PDP
No
6
Denver v. Reyes
104 P. 1042
1909/CO
Nuisance
No
7
St. Louis v. Dreisoerner
147 S.W. 998
1912/MO
Nuisance
No
8
Lincoln Ice Co. v. Chicago
102 N.E. 1039
1913/IL
Nuisance
No
9
People ex. rel. Friend v. Chicago
103 N.E. 609
1913/IL
Nuisance
No
10
Willison v. Cooke
130 P. 828
1913/CO
Aesthetics/PDP
No
11
Corn Hill Realty v. Stroebel
103 N.E. 735
1913/NY
Police Power
No
12
Stubbs v. Scott
95 A. 1060
1915/MD
Aesthetics
No
13
Calvo v. New Orleans
67 So. 338
1915/LA
Aesthetics
No
14
Byrne v. Maryland Realty Co
98 A. 547
1916/MD
Aesthetics
Yes
15
State ex. rel. Lachtman v. Houghton
158 N.W. 1017
1916/MN
Aesthetics
No
16
State ex. rel. Roerig v. Minneapolis
162 N.W. 477
1917/MN
Police Power
No
17
State ex. rel. Twin City Building and Investment Co. v. Houghton
174 N.W. 885
1919/MN
Aesthetics
Yes
18
Vorlander v. Hokenson
175 N.W. 995
1920/MN
Aesthetics
No
19
Spann v. Dallas
235 S.W. 513
1921/TX
Natural Law/PDP
Yes
20
People ex. rel. Roos v. Kaul
134 N.E. 740
1922/IL
PDP
No
21
Handy v. South Orange
118 A. 838
1922/NJ
Police Power
Yes
22
Ignaciunas v. Risley
121 A. 783
1923/NJ
Natural Law
Yes
23
State ex. rel. Penrose v. McKelvey
256 S.W. 474
1923/MO
Aesthetics
No
24
St. Louis v. Evraiff
256 S.W. 489
1923/MO
Aesthetics
No
25
Fitzhugh v. Jackson
97 So. 190
1923/MS
Police Power
Yes
26
Goldman v. Crowther
128 A. 50
1925/MD
Aesthetics/PDP
No
27
White’s Appeal
134 A. 409
1925/PA
Aesthetics
No
28
Pacific Palisades Association v. City of Huntington Beach
237 P. 538
1925/CA
Police Power/PDP
No