EXCLUSIONARY ZONING

This law review article discusses the constitutional law aspects and effects of exclusionary zoning during the period leading up to and including the Supreme Court's decision in Village of Euclid, Ohio v. Ambler Realty Co. 272 U.S. 365 (1926) and subsequently. Although from their inception, an important purpose and effect of the zoning involved in Euclid and other pre-World War II city and suburban zoning ordinances and regulations was economic or de facto segregation along class, ethnic and racial lines, federal and case law decisions were not based on a segregation rationale; rather, they followed an elaborate common law and later welfare state jurisprudence both of which were rooted in balancing private property rights and the police powers of local government in the American federal system. However, while the Supreme Court and the federal courts generally have remained reluctant to reverse the holding of Euclid, Supreme Courts and legislatures in some states have taken steps since the 1970s to limit the power of municipalities to enact exclusionary zoning which discriminates against the poor and racial minorities.

In crowded England, zoning restrictions date back to the Parliament of the time of Queen Elizabeth I which in 1580 enacted legislation which made it illegal to construct buildings on any lot of less than four acres. In the United States, zoning legislation and ordinances were a manifestation of the ci

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eterminations of local municipalities. Sugar expresses this unique form of land use federalism as follows: "Traditionally, courts have self-consciously assumed a very limited role with respect to the review of land use planning decisions made by local government. For the federal judiciary this has meant a nearly total abandonment of this field . . . a great reluctance on the part of state or federal courts to actively intervene in the process of land use planning." For a long period of time, 1928-1954, no land use cases involving constitutional questions were heard by the Supreme Court. During the pre-New Deal period, legal progressives had argued that state and local legislation should be upheld by the courts under the commerce, general welfare and police power clauses of state and federal constitutions. By the 1940s, that argument had been won. In the first case that came before the Supreme Court on land use issues, Berman v. Parker, 348 U.S. 26 (1954) the Court unanimously upheld a District of Columbia slum clearance condemnation law. Justice William Douglas for the Court said at 32 that it was up to the legislature, not the courts, to define the public welfare and that "the role of the judiciary in determining whether that

Category: Government - E