Zoning & Policing
/Zoning is a police power. What does that mean? It means separate but related things. Mainly, the legal theory that allows the police to pull you over when you are speeding also legitimizes and justifies your local government’s ability to do everything from prohibiting apartment buildings in single family zones, to passing laws regulating specific aesthetic features of buildings. This is the same “police power” that undergirds all of our governments’ regulations that protect any aspect of public health and safety. Many of these police powers are good things, like ensuring toxic chemicals stay out of our food.
In addition, political leaders, judges and other elites believe that using zoning to separate apartment housing and businesses in certain neighborhoods away from low density, single family housing is a policy that makes the job of the police force easier. In this sense, zoning as a police power is nested within the role of the police officer to promote “public safety” specifically by regulating who is allowed to be where.
The connection between zoning and police powers begins over 100 years ago, in 1926 the Supreme Court of Louisiana, in State v. City of New Orleans, pp. 282-283, said:
... the exclusion of business establishments from residence districts might enable the municipal government to give better police protection. Patrolmen's beats are larger, and therefore fewer, in residence neighborhoods than in business neighborhoods. A place of business in a residence neighborhood furnishes an excuse for any criminal to go into the neighborhood where, otherwise, a stranger would be under the ban of suspicion. Besides, open shops invite loiterers and idlers to congregate, and the places of such congregations need police protection. (emphasis added)
One might think that apartment buildings are residences, because people live there, and therefore would be included as permitted uses in “residence districts” but one would be wrong. Later that same year, the US Supreme court weighed in on whether cities had the power to pass zoning ordinances that prevented business uses in residential districts, and specified that apartments are not a residential use.
The serious question in the case arises over the provisions of the [zoning] ordinance [that] exclud[e] apartment houses, business houses, retail stores and shops, and other like establishments [from residential districts]. This question involves the validity of what is really the crux of the more recent zoning legislation, namely, the creation and maintenance of residential districts, from which business and trade of every sort, including hotels and apartment houses, are excluded. (emphasis added) Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)
The court goes on to explain why apartment houses in particular are not only not residential uses, but are active nuisances to so called “residential” districts.
With particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that, in such sections, very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities -- until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed. Under these circumstances, apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)
Implicit in the State v. City of New Orleans opinion is the principle that effective law enforcement is equivalent to a generalized suspicion of strangers, and therefore the practice of law enforcement is the effort to keep different kinds of people separated from each other. In this case, the police power is concerned with keeping the kinds of people who live in apartments out of neighborhoods inhabited by the kinds of people who live in houses. It goes without saying that since apartments are cheaper than houses, what we are talking about here is virulent classism and racism.
By 1926 the principle was firmly established that prohibiting businesses and apartment buildings in single family areas was reasonable and desirable because it facilitated the ability of police officers to ensure that higher income people would not come into unwanted contact with lower income people. Prohibiting apartments and stores in single family zones also removed any legitimate reason for a lower income person to walk around an expensive neighborhood, making the police officer’s job very easy. Any unfamiliar individual in a high income neighborhood could be assumed to be a criminal, because the legitimate reasons for their presence had been outlawed and eliminated.
As the decades passed, the police power of zoning only expanded. The foregoing conversation explains the counterintuitive fact that apartment buildings are separated from single family zones, even though they are both residential uses, but it doesn’t explain why zoning is so intensely concerned with aesthetic issues. Even within single family neighborhoods, the police power allows cities to regulate to minute detail exactly what single family homes are permitted, and what aren’t.
In 1954 Berman v. Parker expanded the police powers to include aesthetics, in addition to “public health, safety and welfare”:
The legal basis for all land use regulation is the police power of the city to protect the public health, safety, and welfare of its residents. ... The concept of the public welfare is broad and inclusive... The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled.” (emphasis added)
In this quote Justice Douglas again ties land use regulation to the work of police. Just as police “carefully patrol” a neighborhood, so too can the legislature make land use regulations that ensure that a community is “well balanced.” What is meant here by “well balanced” is not clear. The term “Balance” in relation to communities was used in England in the 1950s as a synonym for “integrated”, it also sometimes meant “harmonious”. The fact that Justice Douglas puts “well balanced” in a pair with “carefully patrolled” implies that his notion of “well balanced” is related to the patrol. Whatever he had in mind as constituting a well balanced neighborhood, clearly, there is some element that, if present, would throw the community out of balance. He is reiterating the existing standard that regulating the demographic “balance” of communities via land use is a valid use of police power.
Twenty years later, in Village of Belle Terre v. Boraas (1974) Justice Douglas continues on the same theme, “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.”
What this means is that local governments have the authority to enforce vague concepts like “family values” and “youth values” and other “aesthetic” and “spiritual” values, and of course, when certain populations ask them to, they do.
