The Zoning Trap: How Local Planners Decide How We Live

Modern zoning is a deeply entrenched system that empowers planners and bureaucrats to direct our day-to-day activities. And disrupting it will be no small task.

For decades, zoning plans have been developed and administered, typically at the local level, with zoning officials—sometimes untrained and often unelected—deciding how to literally segregate our communities. Our legal apparatuses, in turn, have developed around the idea that the government can (or even should) control the mundane details of human behavior within a place. There are planning commissions, zoning boards, “housing czars,” and scores of lawyers and policy professionals to study and devise the “best” ways to define and separate uses. In this way, today’s zoning is no longer—if it ever was—a basic system to separate noxious uses from the general populace.

Instead, modern zoning regulates trivial details like what you can do in your home, in your front yard, in your side yard, and in your back yard. It regulates what you can build for others to live in, what you can create for those who don’t have a place to live, and even where you may lay to rest when you die. If you want to run a business, it’s no better—the government can prevent you from opening, crack down on your operation if it messes with the mayor’s backswing, or force you to shut down altogether.

Peter and Annica Quakenbush want to provide fellow Michiganders with more choice by opening the state’s first conservation burial ground—a type of green cemetery that preserves the land in its natural state. But Brooks Township opposes the Quakenbushes and, to stop them, banned any new cemeteries.

Zoning Causes Delays and Increases Costs, Making Everything More Expensive

All of that bureaucracy and trivial meddling has, not surprisingly, led to red tape and increased costs. The mere act of purchasing or possessing property is subject to months or years of due diligence—just to make sure that a given piece of land can be used consistent with government mandates. And the process of constructing anything on that property is time-consuming and expensive. It can take years of permitting, fees, community hearings, and building approvals before any improvements can be made. Processes like these—which are common nationwide—drive up the “soft” costs of construction and, in many instances, make it less likely for something to be constructed at all.

Zoning Regulations Smother New Housing, Harm Small Business, and Make Charity Illegal 

These types of zoning policies have proven highly destructive. For example, zoning regulations make housing more scarce, and thus more costly, by limiting the maximum number of units that can be constructed or establishing a minimum size that new units must be. And those parameters often come along with onerous aesthetic requirements. What is more, the entire process often revolves around securing approval from neighborhood groups who want to keep out new residents. Together, this suppresses the available housing stock, which prevents it from keeping pace with demand. The skyrocketing cost of housing in this country, a direct result of this government-mandated scarcity, is proof of this phenomenon at work.

But it’s not just housing. Other aspects of the American experience are just as imperiled. For example, despite what we learned during the Pandemic, it is still illegal in many places to operate a business from your home—or really anywhere where the zoning does not permit it—even if your use was legal when it began and even if your business harms absolutely no one. Likewise, governments—often with the backing of an unwelcoming public—frequently use their zoning laws to put the brakes on much-needed solutions to broader social problems, like hunger and homelessness.

Altogether, zoning has made America less free and less prosperous. 1  It has driven up the cost of housing, made it harder to start a business (at home or anywhere else), and been leveraged to prevent good Samaritans from performing basic acts of charity and kindness.

Zoning Was Not What the Founders Intended 

It was not always this way. Long before there was zoning, America was founded on a basic idea—that all people have an inalienable natural right to “life, liberty, and property.” And that understanding is reflected in our nation’s founding documents. 2 Based on this philosophy, it was widely understood that forcing people to conform their properties to a set of permissible uses was constitutionally impermissible; it was simply an invalid exercise of the police power. 3 That understanding reflected a general acceptance of a broader idea—that the right to possess property inherently included the right to use it. 4

That is not to say that anybody could do anything they wanted with their property. If someone’s property impaired another’s or otherwise constituted a nuisance, a private individual could file a lawsuit. Or the government, pursuant to its narrow police power to regulate public health and safety, could regulate a harmful use. But that was it. And it was a system that worked. Throughout America’s history, up until about World War I, virtually all of America—including its biggest cities—was unzoned.  

The First Zoning Codes: Targeting Minorities and Immigrants

Around the turn of the twentieth century, America was in the process of experiencing major shifts in population—spurred largely by immigration from abroad and migration within. In response to these changes, some of the first zoning laws were designed, unabashedly, to prevent the influx of immigrants and minorities into established communities. Locales on the West Coast passed onerous codes openly designed to force out the Chinese. 5 Manhattan wanted to save high-end shoppers on Fifth Avenue from having to rub shoulders with the area’s Jewish-immigrant factory workers. 6 And ordinances nationwide went into effect to prevent black residents from moving into white neighborhoods. 7

Still, courts considering zoning laws, especially in this early era, often rejected them. In the 1917 decision in Buchanan v. Warley, for example, the Supreme Court held that the city of Louisville violated a seller’s property rights by restricting, on racial lines, to whom he could sell his property. 8 But the Court’s decision in Buchanan v. Warley was far from the end of local efforts to racially segregate. And by the early 1920s, a new push had begun—this time at the federal level. To promote the American ideal of single-family home ownership (and to stimulate the building industry), then-Secretary of Commerce Herbert Hoover oversaw the development and intense promotion of the federal government’s Standard State Zoning Enabling Act. 9 The SZEA was model legislation, meaning that it was shopped to the states and, upon its passage, would empower localities to enact zoning laws—a power they did not inherently have. State and local governments liked it for another reason: while early attempts to explicitly segregate by race had failed, the SZEA showed localities that they could largely accomplish those same goals simply by using zoning—a form of socioeconomic segregation. And the SZEA, in fact, was meticulously designed by lawyers to withstand legal challenges. 10

How Zoning Gained Legal Acceptance and Became a Tool for Micromanaging American Life 

From that point on, with the firm backing of the federal government, zoning took off. Still, its constitutionality was far from decided. That issue was not ultimately resolved until the Supreme Court decided Euclid v. Ambler Realty. 11 Euclid involved a fairly typical zoning code—one that essentially prohibited all but low-density residential uses, including on land that had been earmarked by its owner, the Ambler Realty Company, for industrial use. The lower court in Euclid ruled in favor of the property owners, excoriating Euclid for passing an ordinance that, in its view, was plainly designed to exclude low-income citizens like immigrants and minorities. 12 If a locale wanted to draw those lines—if it was even permitted to at all—the court explained that the government would have to pay property owners for so severely restricting what they could do with their property. 13

The Supreme Court reversed. In upholding zoning, the Supreme Court explained that its constitutional rationale was driven largely by its belief that segregating land uses was good policy. 14 This was especially true, said the Court, regarding the need to separate apartments from other uses. The Court described apartments as “parasites,” and explained that it was enough that “commissions and experts” had studied zoning and decided it was good. 15 That is, it was good for those who mattered—those who preferred single-family detached homes. 16 And that, the Court said, is why it would stop short of finding that zoning was unconstitutional; it was not, in the eyes of the Supreme Court, an exercise of the police power that was “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” 17

After the Supreme Court blessed zoning in Euclid, the practice expanded well beyond the mere segregation of uses. Over the next half-century, zoning evolved into the regulatory colossus it is today, governing all things large and small—from where you can live and work to what you can grow in your front yard. And every few decades, the Supreme Court again signed off on some of the government’s worst impulses, acknowledging that local governments could regulate trivial things, like subjective aesthetics, 18 and deeply intimate choices, like who we live with. 19 Indeed, Belle Terre marked a low point of judicial deference to local fiat, with the Supreme Court waxing poetic about its idyllic view of American suburbia:

A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs.  . . . The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people. 20

But that view—one that elevates government-imposed spaces and quiet seclusion over property rights and individual liberty—is what has led to many of the problems of today. It intentionally leaves the question of a property’s best use to the government rather than the owner or, by extension, the market. And in practice, it means that localities typically will only authorize uses that their constituents approve of. Not surprisingly, these are uses that drive up property values for existing property owners and exclude uses that lower-income residents would want. Simply aggregating this phenomenon explains why there is not enough housing.

Why IJ Is Fighting Back

After Euclid, there was some hope that the Supreme Court might interpret its holding to mean only that local governments were afforded some discretion in proactively regulating nuisance-like uses. 21 That proved not to be the case. So for nearly a hundred years, local governments have operated under the assumption that they may regulate, virtually without limitation, how individuals use their own property. And this assumption has proven generally correct; courts are loath to strike down zoning regulations as unconstitutional absent truly outrageous facts. 22 But ultimately, it is an assumption that is rooted in an understanding of property rights that is in fundamental tension with our nation’s founding philosophy. And for that reason, it is an assumption that IJ is uniquely positioned to challenge.

IJ’s Zoning Justice Project exists to combat the derision of property rights that is built into the concept of restrictive zoning regulations. In place of this unchecked abuse, IJ will offer the courts and the public an understanding of land use that is respectful of both property rights and mindful of legitimate public needs. That means that local governments, for example, cannot stifle much-needed affordable housing projects by doing things like imposing arbitrary minimum-square footage requirements or abusive impact fees. Nor can it restrict small home-based businesses that are utterly harmless, prohibit charities and shelters, or criminalize human kindness.

In addition to strategic litigation, IJ will also promote sensible legislative reform at the state and local level, as well as educate the public on the importance of injecting property-rights focused considerations into the zoning discussion. Through this multi-faceted approach, IJ’s Zoning Justice Project will protect and promote the freedom not just to possess property, but as the Founders intended, to use it peacefully and productively as well.