John Infranca’s recent article, Singling Out Single-Family Zoning, recounts and critiques the foundational legal arguments underlying the advent and dominance of single-family zoning. His insightful framing of this historical perspective is especially valuable in the context of today’s debates about the impacts and future of single-family zoning.
A century ago, localities, land use professionals, and lawyers innovated zoning systems that created protected enclaves for single-family detached homes, isolating these residences from multifamily residential, commercial, and industrial uses. In the 1920s, courts considered and ultimately upheld such land use schemes in opinions that include the seminal 1926 Supreme Court decision of Village of Euclid v. Ambler Realty. Once U.S. courts generally accepted that single-family zoning was a valid exercise of a municipality’s police power, this type of zoning proliferated throughout the country, becoming the unique and defining feature of American land use. But the ubiquity of single-family zoning in the United States obscures its legally questionable foundation.
In the early 20th century, the amorphous, yet compelling, ethos of the “American Dream” was harnessed to expand municipal police power and limit private property rights. Political consensus on the value of promoting homeownership led to laws and programs spurring suburban development. Government policies–from federal mortgage insurance to local land use planning–worked together to create what were purportedly ideal “family” communities, but they resulted in neighborhoods of detached homes populated mostly by upper/middle-class, white families.
Long-justified as a way to promote “public health, safety, and morals,” single-family districting exacerbates residential segregation by race and class, contributes to sprawl and environmental harms, cements American car-dependency, and drives up housing prices. How the government’s police power evolved from a legislative tool to ensure public health, safety, and welfare into the legislative power to create these exclusive neighborhoods is a compelling, cautionary tale.
Using the police power to exclude non-conforming structures (and people) from a neighborhood was a dramatic departure from prior land use applications focused on public health and safety. Infranca traces the innovation of exclusionary zoning generally and of single-family residential zoning specifically, subtly moving from a foundational power to proscribe nuisances to the virtually limitless power to prescribe aesthetics and exclusion.
For example, limiting the size and location of buildings on lots may have originally been grounded in concerns regarding fire because smaller, separated structures reduced the risk of destructive conflagration. These early land use regulations effectively limited multifamily homes, however, and within just a few years, zoning’s implicit hostility to multifamily housing became explicit. Legislatures and courts cast apartment houses as the villain in residential community development. Apartment buildings were “parasites” consuming suburban green space, cutting off light and air, and depressing property values. Excluding “incompatible uses” meant keeping commercial, multifamily, and even two- or three-family homes away from single-family neighborhoods. One early zoning advocate proclaimed that this novel, broad use of police power was “more drastic than any other form of regulation” this country had ever known (P. 686).
Even if creating single-family-only neighborhoods benefitted their residents (which is debatable–see, e.g., Gregory Shill, Should Law Subsidize Driving), these benefits did not accrue to citizens living outside these neighborhoods. Infranca explains that early defenders of single-family zoning attempted to argue to the contrary, that there were broad public benefits from single-family zoning.
By framing homeownership in a single-family neighborhood as an aspirational ideal and by asserting that all citizens benefit from “spacious lawns and plenty of shrubs and trees” (P. 691), advocates claimed that privately owned single-family neighborhoods benefit the public.
The disparate treatment of residents in certain neighborhoods was also explained away by characterizing single-family districting as an economical reflection of existing development patterns. Finally, clustering multifamily homes (for poorer households) in more commercial areas, away from richer households’ detached homes, was framed as an efficient way to provide public services (transportation and other amenities).
Infranca rips the public benefit veneer off of these hollow justifications, concluding that they “have not stood the test of time” and that “[s]ingle-family districts continue to confer whatever benefits they provide only upon a small subset of the population” (P. 722). Although homeowners and their local municipalities may wish to exclude multi-family housing from neighborhoods as a way to prop up their property values,1 single family districts create more public harms than public good. They “exacerbate racial and economic segregation and perpetuate wealth disparities” (P. 661) and are among the ways that the law penalizes renting relative to homeownership.2 In short, single-family zoning does not promote the public welfare and is therefore an unjustified use of the police power.
Historically, however, courts refused to look too closely at the asserted public benefits from single-family zoning when it was included as part of a “comprehensive” land use plan. Infranca explains that courts have generally deferred to land use planning decisions based on the presumption that a comprehensive land use plan carefully and fairly balances various public needs and interests.
The judicial presumption of and deference to zoning comprehensiveness likely “played the most important role in efforts to establish the validity of single-family districts” (P. 696). Judicial deference was based on the idea that since “a comprehensive system of districting is essential to the health and general welfare,” then it must be true that “every specific regulation that is an essential part of such comprehensive system is justified under the police power” (P. 696).
Infranca unravels this house-of-cards reasoning. He queries whether a comprehensive approach truly is essential to health and welfare and whether the benefit of a comprehensive approach generally is sufficient to justify every component thereof. Founded on this logical fallacy, a court using comprehensiveness to justify single-family districting “assumes quite a bit” (P. 697).
Ironically, the appeal to comprehensiveness to justify zoning decisions not only masks complete deference to legislators, but also has been used to justify upholding zoning schemes that were not, in fact, even based on comprehensive planning. Presuming that zoning is always the product of a scientific process and is therefore immune from judicial oversight ignores not only the lack of data-driven decision-making in many instances, but also the fact that in many ways, zoning is more of an art (driven by vision) than a science (driven by data).
Infranca builds on his exploration of single-family zoning’s historical foundations to suggest three strategies to de-legitimize single-family zoning. First, because zoning’s presumptive validity is rooted in its comprehensiveness, its lack of dynamism and poor balance of various community needs could undercut its legitimacy. Second, single-family neighborhoods’ lack of accessibility–both in terms of infrastructure and affordability–can demonstrate the absence of a public benefit from this mode of zoning. Finally, Euclidian zoning implicitly presumes regional coordination as prerequisite for its police power legitimacy, suggesting that local zoning power is constrained.3
The hundred years of solitude that has walled off single-family neighborhoods in the United States is starting to crack. An increased emphasis on adverse impacts of single-family zoning (and exclusive zoning in general) has already led several states and municipalities to jettison this “American obsession” (P. 666).
But our common law precedent-based legal system looks backwards to move forwards. Exploring and critiquing yesterday’s assumptions that established single-family zoning as a legitimate use of police power can provide the key to reconsidering its validity for tomorrow.
- William Fischel, The Homevoter Hypothesis (2005).
- See Sarah Schindler & Kellen Zale, The Anti-Tenancy Doctrine, 171 Univ. Pa. L. Rev. 267 (2023); previously reviewed by Serena Williams, Illustrating Rent: Why Is the Tenant Falling?, JOTWELL (October 21, 2022).
- See Ezra Rosser, The Euclid Proviso, 96 Wash. L. Rev. 811 (2021).
