Challenging Zoning: How Does It Work?

The Institute for Justice is launching a new project to fight the excesses of zoning. And the first question you might have when you hear about that project is, “How do you fight zoning in court?”

It’s a good question because challenging a zoning law can seem impossible on first glance. And often that is basically true. But like the White Queen in Through the Looking Glass, at IJ we’re used to believing impossible things—and sometimes succeeding at them. Therefore, it’s only natural that we’re upping our effort to fight zoning overreach.

This effort actually raises many additional questions, such as: How deferential are courts to zoning rules? And how is challenging zoning different from other fights we pick at IJ, such as challenges to occupational licensing?

Here I try and briefly lay out some answers . Why is taking zoning to court so “impossible,” and what can IJ do if that’s truly the case?

Arbitrariness should be enough

Courts have abdicated their responsibility to enforce constitutional limits on government in all kinds of ways. Still, it’s a long-accepted rule—even today—that laws which are truly arbitrary are unconstitutional. Zoning stands as a special case, however. That’s because unlike in other areas of constitutional law where courts have papered over arbitrary rules and distinctions, zoning is inherently arbitrary. They are lines on a map devised by government officials out of thin air. So demonstrating that a zoning rule is arbitrary isn’t enough. Generally, you have to show it’s insanely out-of-this-world arbitrary. It turns out, though, that sometimes with zoning arbitrary is enough. Confused? So are many courts and lawyers.

To explain, let’s first look at some non-zoning cases. In IJ’s work on occupational licensing, we mostly attack arbitrary restrictions on the right to earn a living on two grounds. First, we argue that the law arbitrarily regulates one occupation or gainful activity and leaves a similar occupation or activity mostly unregulated. This is broadly called an equal protection claim. Second, we argue that whatever the case may be as the law is applied to others, for our client and her occupation the law simply violates her right to earn a living. This is broadly called a substantive rights claim.

For an example of an equal protection claim, take our “cottage foods” case in Wisconsin. There, we successfully challenged the state ban on the sale of homemade baked goods. The state prohibited our clients from selling homemade bread but allowed the sale of homemade popcorn.

An example of a substantive rights claim is our successful attack on Louisiana’s law requiring a full-blown mortician’s license to sell a casket. As we said in that case, “it’s just a box.” It’s a useless law that simply drives up the already expensive cost of burying a loved one.

Now, we generally raise both kinds of claims—equal protection and substantive rights—in most of our cases, including these two. It’s usually not just one or the other. But this distinction gives you a sense of how arbitrariness can mean a law is unconstitutional: whether the law makes sense (1) as compared to other people or (2) simply whether it makes sense at all, at least as it’s applied to you. When a law becomes so arbitrary that there is no legitimate reason for it—the truth is courts sometimes do the right thing.

Arbitrary by design

Let’s now turn to zoning. Banning the sale of donuts while allowing the sale of popcorn may sound arbitrary, but it’s downright sensible compared to many zoning distinctions. And requiring casket sellers to know how to embalm bodies may sound farcical but it makes eminent sense compared to many zoning restrictions on people’s property. This is because the lines drawn on a zoning map and rules in a zoning ordinance are almost always at least somewhat arbitrary. In fact, they often have to be! Otherwise zoning wouldn’t be zoning.

Take a hypothetical example that actually is the reality in almost any American city. Mary lives in a standard house with a walk-in basement. Across the street John lives in an identical house. Their lots are both a quarter acre with the same distance from the house to the street and to the lot lines on either side. Mary’s house is zoned single family only. John’s, however, is zoned for up to two units. And the setback rules are less restrictive for John’s home. The upshot of the difference in zoning is that John could turn his basement into an apartment and rent it out to a tenant. Plus, he could build an extra bedroom onto his house and put a shed in a side yard without violating the setback rules. But Mary can’t do any of these—even though they live in identical homes on the same street.

Why is this not unconstitutional in the way regulating similar food products or occupations in different ways might be, that is, on equal protection grounds? Because if it were, courts would strike down almost every zoning map in America! Zoning’s defenders argue you have to examine a zoning map holistically because a property owner can always point to another similar property owner in a different zoning district—even across the street. They contend that you have to consider, among other factors, the layout of the entire city, the anticipated future growth of each neighborhood, and the need to draw lines somewhere even though any one line will be arbitrary in isolation. And that you have to defer to the city council and city planners as to how this vast jigsaw puzzle fits together.

But setting comparisons with John’s property aside, could Mary just challenge these restrictions as simply violating her substantive property rights? Why can’t she put a shed in her side yard? It’s not hurting anyone; it’s just there holding a few tools and a lawn mower. And why can’t she rent out her basement? One more person living on the block isn’t going to bother anybody. Because, argue zoning supporters, for many of the same reasons the equal protection claim must fail. If we let Mary have a shed in her side yard then—the horror!—everyone in her zoning district might get one. And that, to steal a line from one of the Supreme Court’s worst zoning cases, might threaten “the blessings of quiet seclusion” in the neighborhood. And the same goes for letting a human—someone who might own a car! and make noise! and, who knows, do other terrible things that humans do!—live in Mary’s basement.

Thus, although courts have never come out and said, “It’s OK for zoning to be arbitrary,” that’s essentially what they have done. If you challenge a zoning law in the same way you might challenge a different kind of law, you’re faced with the same “rational basis test” that we often fight at IJ in our other work. But it’s an even higher hurdle.

This is why zoning cases in federal court are essentially the hardest to win of just about any constitutional challenge. Federal courts repeatedly state that they are not “super zoning boards.” With the most cursory—or less than cursory—application of law to facts, they almost invariably dismiss challenges to zoning rules and decisions under the Equal Protection Clause, the Due Process Clause, or even the Takings Clause. (If free speech or religious liberty is involved then things can be easier, but that’s a rare exception.)

State constitutions: The future?

In state court, things can get a bit better. Sometimes. And that’s where IJ is focusing its firepower. Bringing cases on behalf of real-life Mary’s, we are litigating more and more zoning cases, and generally in state court invoking that state’s constitution. This is because state constitutions sometimes can provide higher levels of protection than the U.S. Constitution as it’s currently interpreted in federal court. So arbitrary can actually mean arbitrary.

(I should also note that sometimes challenging a zoning rule or decision can be a bit easier, and require less governmental arbitrariness, even without a constitutional claim—for example, asking for a variance. But if a property owner isn’t lucky enough to have that option (which is quite often true) then a constitutional challenge may be in order.)

While no state’s supreme court currently says that zoning violates its state’s constitution, some zoning overreaches do find themselves in the state constitutional crosshairs in a way they wouldn’t in federal court.

For example, take Georgia. There, IJ represents a nonprofit, Tiny House Hand Up, in a challenge to the city of Calhoun’s ban on “tiny homes.” The city doesn’t allow homes of less than 1,150 square feet even though our client can build cottages of around 600 square feet that are perfectly safe and that many people looking for affordable housing are interested in buying. Georgia’s constitution has been interpreted to require legislation—even zoning legislation—to have a “substantial relationship” to public health and safety. The state supreme court enforced this requirement in a non-zoning, occupational licensing case last year that IJ litigated, where the court found a lactation consulting license to violate the state constitution’s due process clause. We are arguing the same is true of the tiny home ban. To be sure, the standard isn’t anything like strict scrutiny and still gives all kinds of deference to the government. But it allows more of a fighting chance to property owners than they’d find in federal court. Other states—but by no means all—have similar standards for their own constitutions.

Does this mean that zoning’s days are numbered in states like Georgia? Probably not. The arbitrary protection of zoning’s arbitrariness is long established at this point, so it may be a while until any high court, state or federal, revisits it. But courts can still take a “this far but no further” approach. And at a time where there’s a growing consensus that zoning has seriously diminished America’s capacity to build housing and create jobs, that may mean courts will have more courage to call a high-water mark for zoning. And, who knows, maybe one day not too far from now more impossible dreams might be realized as well.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.