Economic Liberty and Due Process in Single-Family Zoning

Due process, as protected in the Fifth and Fourteenth Amendments, regulates a government’s ability to take an individual’s life, liberty, or property. While procedural due process examines if the government followed the proper course of action in order to deprive a person of these rights, substantive due process focuses on if the taking itself is justified and not done arbitrarily. However, when considering certain practical applications of substantive due process, it becomes difficult to determine the limits of government power. There has been an ongoing discussion on to what extent zoning, dividing land into different sections or “zones” that serve different purposes, is a legitimate application of government authority. Exclusionary zoning has made certain neighborhoods particularly unaffordable to specific races or income-levels—nearly 75 percent of residential areas in America are zoned as single family-only, which decreases the amount of homes that can be built and drives up prices. Yet, making due process challenges against zoning is difficult since it requires one to demonstrate that there is no rational basis for treating groups differently. Legislators will typically have some sort of reason to back up zoning decisions, even if it is just aesthetics. Exclusionary zoning serves as an example of how governments have violated due process in the name of public good to discriminate against minorities. The United States should eliminate single-family zoning to create more integrated communities, protecting individual rights while still maintaining order in municipalities.

The Euclid Case

One of the most cited cases in debates about zoning is Village of Euclid v. Ambler Realty Co. (1926). This ruling upheld the government’s ability to ban multi-family homes in Euclid, stating that since the ordinance promoted public safety, it is within the state’s police power. However, given this case is nearly a century old, the Supreme Court should look to either clarify or limit this ruling after observing the long-term consequences zoning has had on marginalized communities.

There are multiple types of zoning Euclid v. Ambler permits: separating industry and business from residential spaces and separating apartments from single-family homes. While the first two are reasonable policies, limiting the construction of apartments has harmful effects that violate substantive due process. One main reason the Court provided for upholding this type of zoning was that constructing apartments in the same neighborhood as single-family homes would depreciate the value of houses. While this argument may seem logical, there is no solid statistical evidence to support this claim. According to a Wayne State University literature review of 17 studies, researchers agree that apartment buildings do not have any negative effect on property values. The only time apartments were found to harm property value is in neighborhoods with already high poverty rates. This exception does not apply when adding apartments to previously single-family zones, since those are typically wealthier areas. Given the irrational basis for this decision, single-family zoning should be beyond the scope of government power.

Racial and Economic Impacts

In an interview, Matthew Desmond, a Sociology Professor at Princeton University, states, "I don't think that you can address poverty unless you address the lack of affordable housing in the cities.” The biggest implication of zoning is the difference in quality of life and opportunity between neighborhoods. A Harvard University study that tracked children who moved out of high-poverty areas through the United States Department of Housing and Urban Development’s “Moving to Opportunity” experiment found that children who moved before they were 13 years old earned over 30 percent more in their jobs and were 16 percent more likely to attend college between ages 18 and 20. Statistics like these demonstrate how living in lower-income neighborhoods limits one's access to education and impedes their social mobility. Zoning codes only further force physical separation of social classes, depriving lower-income families of economic freedom. Furthermore, as a result of systemic barriers to opportunity, median Black household savings are just 10 percent of median White household savings. Being able to pay down payments for single-family homes in low-poverty neighborhoods is therefore more difficult for Black Americans, and is in fact the biggest barrier to them purchasing homes. Even within races, an analysis of U.S. Census data shows that income segregation among Black and Hispanic families jumped between 1970 and 2010 to far exceed White families. This means that White Americans can buy their way into more affluent areas, while Black and Hispanic Americans are unable to. Single-family zoning has proven to be disproportionately detrimental in the long term, and exceptions to due process should not be made to permit it. Governments should not be able to limit an individual's opportunities for mere convenience.

Lower-income neighborhoods are also where most hazardous development and pollution is concentrated. Manufacturing zones create living conditions that promote cancer and heart diseases, and these areas have a higher proportion of people of color than any other zone. 1990 Census data shows that areas around manufacturing zones in New York City typically consisted of a 76-100 percent minority population, whereas areas around parks were usually only 0-25 percent minorities. Yet, these groups that suffer the most from health and economic problems due to zoning have the least say in community planning decisions. Public meetings that determine zoning laws are usually dominated by business people and wealthy homeowners who are less likely to approve plans for new apartments. For example, in Boston, 95 percent of commenters on development projects were White, which does not help solve the issue of racially segregated residences.

Through the Historical Lens

The concept of zoning is inherently rooted in policies of discrimination and racism. One of the first zoning ordinances was Baltimore’s 1910 ordinance that prohibited Black families from living in majority White neighborhoods and White families from living in majority Black neighborhoods. It was not until Buchanan v. Warley (1917) that denying people property based on their race was prohibited. However, even after the Buchanan decision, the same practices persisted. Two years later, when urban planner Harland Bartholomew designed the zoning codes for St. Louis, he wrote that his main goal was to prevent people of color from moving into “finer residential districts,” claiming these neighborhoods’ “values have depreciated” without zoning laws since their “homes are either vacant or occupied by colored people.” Therefore, it is difficult to pretend that today’s zoning ordinances are unrelated to race when their original purpose was to promote racial segregation—a purpose that continued to influence policymakers’ decisions even after the act was banned.

Many discriminatory motivations for zoning, however, are framed in a way to appear beneficial to the public. After the Buchanan ruling, city planner Robert Whitten defended race-based zoning by claiming that it reduces race conflict and “is essential in the interest of the public peace, order and security and will promote the welfare and prosperity of both the white and colored race.” Evidently, there always exists some justification that makes it difficult to prove the government is acting arbitrarily, which is already a low bar. To remedy this, there should be stricter requirements for proving a new zoning ordinance is reasonable, which would make violations of substantive due process easier to discern.

Progress Towards Reform

One of the few states able to fix some of the issues post-Euclid ruling was New Jersey in 1975. The New Jersey Supreme Court deemed that Mount Laurel Township’s lack of affordable housing due to single-family zoning was against the state constitution. While this case did not create much change nationwide, other states today could follow in New Jersey's lead by actively creating more affordable housing, or taking it a step further and eliminating single family-only zones. Already, since 2019, Oregon has begun allowing duplexes in previously single-family zoned areas with a population greater than 10,000. Minneapolis also ended single family-only zoning throughout the city. While this is good progress, there should be somewhat of a consensus among all states to push them towards the same goal. By limiting the Euclid case, the federal government would have more power to reduce exclusionary zoning within states. This includes federal incentives to eliminate single-family zoning or to increase representation in public meetings, which would solve some of the issues mentioned previously. Until then, states themselves can also follow these trends towards reform and reduce the amount of single-family zoned areas, increasing affordability and equity among their residents.

Final Thoughts

Not all zoning is improper government overreach. While separating industrial areas from residential areas is based on valid safety claims, separating apartments and multi-family homes from single-family houses is acting arbitrarily. To mitigate the discriminatory impacts zoning has proven to have, there needs to be legislative change. There has not been enough evidence to prove that exclusionary zoning increases public welfare or efficiency; therefore, governments should not be able to interfere with individuals' economic liberty this way. Instead, there should be collective efforts to reduce single-family zoning nationwide in the name of due process, pairing hand-in-hand with the Equal Protection Clause of the Fourteenth Amendment.

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by KATIE LIN

Views expressed above represent the opinion of the author and are not intended to represent Lexspects editorial staff or Lexington High School.