Zoning and Similar Actions.

It is now well established that states and municipalities have the police power to zone land for designated uses. Zoning authority gained judicial recognition early in the 20th century. Initially, an analogy was drawn to public nuisance law, so that states and their municipal subdivisions could declare that specific businesses, although not nuisances per se, were nuisances in fact and in law in particular circumstances and in particular localities.313 Thus, a state could declare the emission of dense smoke in populous areas a nuisance and restrain it, even though this affected the use of property and subjected the owner to the expense of compliance.314 Similarly, the Court upheld an ordinance that prohibited brick making in a designated area, even though the specified land contained valuable clay deposits which could not profitably be removed for processing elsewhere, was far more valuable for brick making than for any other purpose, had been acquired before it was annexed to the municipality, and had long been used as a brickyard.315

With increasing urbanization came a broadening of the philosophy of land-use regulation to protect not only health and safety but also the amenities of modern living.316 Consequently, the Court has recognized the power of government, within the loose confines of the Due Process Clause, to zone in many ways and for many purposes. Governments may regulate the height of buildings,317 establish building setback requirements,318 preserve open spaces (through density controls and restrictions on the numbers of houses),319 and preserve historic structures.320 The Court will generally uphold a challenged land-use plan unless it determines that either the overall plan is arbitrary and unreasonable with no substantial relation to the public health, safety, or general welfare,321 or that the plan as applied amounts to a taking of property without just compensation.322

Applying these principles, the Court has held that the exclusion of apartment houses, retail stores, and billboards from a “residential district” in a village is a permissible exercise of municipal power.323 Similarly, a housing ordinance in a community of single-family dwellings, in which any number of related persons (blood, adoption, or marriage) could occupy a house but only two unrelated persons could do so, was sustained in the absence of any showing that it was aimed at the deprivation of a “fundamental interest.”324 Such a fundamental interest, however, was found to be implicated in Moore v. City of East Cleveland325 by a “single family” zoning ordinance which defined a “family” to exclude a grandmother who had been living with her two grandsons of different children. Similarly, black persons cannot be forbidden to occupy houses in blocks where the greater number of houses are occupied by white persons, or vice versa.326

In one aspect of zoning—the degree to which such decisions may be delegated to private persons—the Court has not been consistent. Thus, for instance, it invalidated a city ordinance which conferred the power to establish building setback lines upon the owners of two thirds of the property abutting any street.327 Or, in another case, it struck down an ordinance that permitted the establishment of philanthropic homes for the aged in residential areas, but only upon the written consent of the owners of two-thirds of the property within 400 feet of the proposed facility.328 In a decision falling chronologically between these two, however, the Court sustained an ordinance that permitted property owners to waive a municipal restriction prohibiting the construction of billboards.329

In its most recent decision, the Court upheld a city charter provision permitting a petition process by which a citywide referendum could be held on zoning changes and variances. The provision required a 55% approval vote in the referendum to sustain the commission’s decision, and the Court distinguished between delegating such authority to a small group of affected landowners and the people’s retention of the ultimate legislative power in themselves which for convenience they had delegated to a legislative body.330


Reinman v. City of Little Rock, 237 U.S. 171 (1915) (location of a livery stable within a thickly populated city “is well within the range of the power of the state to legislate for the health and general welfare”). See also Fischer v. St. Louis, 194 U.S. 361 (1904) (upholding restriction on location of dairy cow stables); Bacon v. Walker, 204 U.S. 311 (1907) (upholding restriction on grazing of sheep near habitations). back
Northwestern Laundry v. Des Moines, 239 U.S. 486 (1916). For a case embracing a rather special set of facts, see Dobbins v. Los Angeles, 195 U.S. 223 (1904). back
Hadacheck v. Sebastian, 239 U.S. 394 (1915). back
Cf. Developments in the Law: Zoning, 91 HARV. L. REV. 1427 (1978). back
Welch v. Swasey, 214 U.S. 91 (1909). back
Gorieb v. Fox, 274 U.S. 603 (1927). back
Agins v. City of Tiburon, 447 U.S. 255 (1980). back
Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). back
Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Zahn v. Board of Pub. Works, 274 U.S. 325 (1927); Nectow v. City of Cambridge, 277 U.S. 183 (1928); Cusack Co. v. City of Chicago, 242 U.S. 526 (1917); St. Louis Poster Adv. Co. v. City of St. Louis, 249 U.S. 269 (1919). back
See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), and discussion of “Regulatory Taking” under the Fifth Amendment, supra back
Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). back
Village of Belle Terre v. Boraas, 416 U.S. 1 (1974). back
431 U.S. 494 (1977). A plurality of the Court struck down the ordinance as a violation of substantive due process, an infringement of family living arrangements which are a protected liberty interest, id. at 498–506, while Justice Stevens concurred on the ground that the ordinance was arbitrary and unreasonable. Id. at 513. Four Justices dissented. Id. at 521, 531, 541. back
Buchanan v. Warley, 245 U.S. 60 (1917). back
Eubank v. City of Richmond, 226 U.S. 137 (1912). back
Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928). In a later case, the Court held that the zoning power may not be delegated to a church. Larkin v. Grendel’s Den, 459 U.S. 116 (1982) (invalidating under the Establishment Clause a state law permitting any church to block issuance of a liquor license for a facility to be operated within 500 feet of the church). back
Thomas Cusack Co. v. City of Chicago, 242 U.S. 526 (1917). The Court thought the case different from Eubank, because in that case the ordinance established no rule but gave the force of law to the decision of a narrow segment of the community, whereas in Cusack the ordinance barred the erection of any billboards but permitted the prohibition to be modified by the persons most affected. Id. at 531. back
City of Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976). Such referenda do, however, raise equal protection problems. See, e.g., Reitman v. Mulkey, 387 U.S. 369 (1967). back