The Unconstitutionality of Residential Zoning: Why Euclid v. Ambler Was Wrongly Decided

The Supreme Court decided Village of Euclid v. Ambler Realty in 1926, affirming the constitutionality of residential zoning and greenlighting the past century of urban planning. Euclid, a suburb east of Cleveland, was in its early stages of development when the case arose. The village adopted its first zoning ordinance in 1922, as part of a nationwide movement toward planned development and land use regulations. The ordinance faced a constitutional challenge, leading the Supreme Court to rule that zoning is a valid use of states’ constitutionally assigned police power.

I argue that Euclid, and its resulting exclusionary zoning ordinances, have had disastrous consequences for American cities. Restrictions on residential development have perpetuated class-based segregation, made housing less affordable and weakened the greater U.S. economy. Fortunately, there is a clear path for undoing Euclid’s damage. The Court based its holding primarily on the racist assumption that low-income residents necessarily create nuisances, giving the government a pretext to regulate the construction of apartments available to low-income households. Without acceptance of this prejudiced belief, exclusionary zoning loses its constitutional muster and should instead be considered a taking requiring compensation under the Fifth Amendment.

Zoning—the practice of assigning different restrictions on development, land use, and design to geographical “zones” of a city—began to be implemented in 1916, when New York became the first U.S. city to adopt a citywide zoning ordinance, which became model legislation for other cities enacting similar restrictions.[1] Rapid urbanization, industrialization, and unprecedented levels of immigration to the United States during the late nineteenth and early twentieth centuries fueled political support for early zoning regulations, but not necessarily a legal justification.[2] From 1870 to 1920, urban areas doubled their share of the country’s population—going from housing about a quarter of Americans to just over half.[3] This coincided with new innovations in building construction, like the development of the skyscraper, allowing cities to be even denser.[4]

Rapid, uncontrolled growth in American cities spurred a nationwide push for better urban living conditions, known as the City Beautiful movement, supporting public policy based on theories of positive environmentalism.[5] Proponents—including prominent figures like Theodore Roosevelt, Jacob Riis, and Frederick Law Olmsted—advocated for improving the design of cities. They supported urban design emphasizing parks and open space, allowing for air and light to reach residents. This policy movement was built on the positive environmentalist belief that the built environment influences human behavior; by improving people’s surroundings, they supposedly would experience moral improvements. As a result, state and local governments turned to zoning as one tool to enact changes in pursuit of this vision for cities.[6]

The Village of Euclid was one municipality that enacted a zoning ordinance, on the basis of (or at least under the guise of) positive environmentalism. Ambler Realty Company owned sixty-eight acres of land in Euclid and sought to develop it for commercial purposes, but was prevented by the newly passed zoning ordinance.[7] Their land was located on Euclid Avenue, which was lined with mansions and known as Cleveland’s “Millionaire’s Row.”[8] Fundamentally, the zoning ordinance was an attempt to maintain the avenue as a wealthy enclave. By preventing the construction of apartments and commercial buildings, landowners were able to protect their property values and the existing built environment. One such Euclid Avenue resident was James Metzenbaum: the village counsel who drafted the ordinance and represented Euclid when Ambler filed suit.[9]

Ambler alleged that the zoning ordinance reduced their land’s value and usability, depriving the company of “liberty and property without due process” under the Fourteenth Amendment.[10] Euclid argued that the zoning ordinance was a valid, constitutional use of police power in accordance with mainstream positive environmentalist theories. The police power, assigned to state governments through the Tenth Amendment, was defined by the Reconstruction-era Supreme Court as being limited to “the protection of the lives, the health, and the property of the community against the injurious exercise by any citizen of his own rights.”[11] This accepted interpretation offers far-reaching discretion for state and local governments to enact regulations, including restrictions on land use like zoning. But despite the broad reach of the police power, the district court agreed with Ambler; Judge David Westenhaver considered the ordinance to be “in no just sense a reasonable or legitimate exercise of police power” and an unconstitutional infringement on landowners’ due process rights.[12]

Westenhaver’s opinion relied heavily on Buchanan v. Warley, a then-recent Supreme Court decision that invalidated explicitly racial zoning ordinances. The Court only ruled against racial zoning in Buchanan because such regulations infringed on white landowners’ right to rent property to prospective black tenants; Justice William Day wrote in his opinion that the ordinance annulled the “civil right of a white man to dispose of his property if he saw fit to do so to a person of color and of a colored person to make such disposition to a white person.”[13]

Quite accurately, Westenhaver considered Euclid’s zoning regulations to be identical in practice to the racially restrictive zoning ordinances that Buchanan ruled as invalid uses of the police power. The zoning ordinance at issue categorically banned two-family dwellings and apartment buildings from various sections of the village.[14] While the regulations were facially race-neutral, they had the effect of limiting the construction of affordable housing.[15] As a result, low-income residents were effectively barred from living in Euclid, which especially harmed racial minorities and immigrants. Westenhaver aptly said that the zoning ordinance would “classify the population and segregate them according to their income or situation in life,” describing how one’s choice of housing is simply “a matter of income and wealth.”[16]

Westenhaver did not rule against Euclid’s ordinance because he opposed racial zoning, however. Richard Chused, a former professor of law at Georgetown University Law Center, described Westenhaver’s opinion as “an expression of shock at the outcome of Buchanan” because he considered segregation to be a logical policy.[17] In a show of his racist attitudes, Westenhaver claimed that the natural next step beyond the existing ordinance would be to use the police power to “apply similar restrictions for the purpose of segregating in like manner various groups of newly arrived immigrants.”[18] According to Westenhaver, these segregationist regulations would help prevent “[t]he blighting of property values and the congesting of the population, whenever the colored or certain foreign races invade a residential section.”[19]

Still, he followed the precedent set by Buchanan in accordance with his view that Euclid’s ordinance was not significantly different from racial zoning ordinances—which were unjust “taking[s] without compensation,” and therefore not within the confines of the police power.[20] He opined that Euclid’s ordinance was based “on a mistaken view of what is property and of what is police power.”[21] He states that the village’s position is that “property is not taken” so long as the owner retains the “legal title thereto and is not ousted from the physical possession thereof.”[22] Noting that the Constitution protects “the free use, enjoyment, and disposal” of property, he explains that “property is more than the mere thing which a person owns.”[23] With this broad definition of property in mind, Westenhaver concluded that police power is not “unshackled by any constitutional limitation protecting life, liberty, and property,” and therefore zoning is not a valid use of the police power.[24]

The Supreme Court ultimately reversed Westenhaver’s ruling. Justice George Sutherland, writing the majority opinion, held that the zoning ordinance was within the scope of police power and therefore not an unconstitutional infringement on property.[25] “Sutherland and his conservative colleagues … were ready to strike down the zoning restrictions at issue,” agreeing with Westenhaver, until a late-filed brief by Alfred Bettman likely convinced Sutherland and Chief Justice William Howard Taft to side with the Court’s liberal wing.[26] Bettman, the leader of the National Conference on City Planning, wrote an amicus brief for the case, but missed the oral arguments and filing deadline. He ended up writing to Taft, his old friend, who allowed Bettman to submit the brief late.[27]

The argument in Bettman’s brief supporting the ordinance took a radically different approach from Euclid’s defense strategy. The village argued that zoning is a valid use of police power because it promotes health and safety, repeating their earlier strategy and relying on theories from positive environmentalism.[28] Euclid’s once-failed strategy was risky, especially for a conservative Court with a track record of curbing government authority.

On the other hand, Bettman discussed how zoning could alleviate Westenhaver’s earlier concerns of nuisances “whenever the colored or certain foreign races invade a residential section.”[29] He argued that “zoning is simply a modern mode” of “recognized and sanctioned methods of regulating property,” adapted for changing urban conditions.[30] In doing so, he aimed to demonstrate how regulations excluding apartment buildings from residential zones were more than just aesthetic controls that clearly fall outside of the police power. This strategy successfully appealed to the conservative justices’ racial prejudices along with their ideological preference for limited government.

He begins by describing how zoning can separate industrial uses that may create “odors or clanging noises” that disturb nearby neighbors.[31] According to Bettman, zoning could separate “the noises and odors and turmoils necessarily incident to the operation of industry” from residential areas.[32] Bettman’s example of zoning restrictions on industry is clearly beneficial for a community and also fits within the state’s police power to protect health, safety, and public welfare. He used this example to smoothly transition toward discussion of residential zoning, framing it as a tool to limit nuisances just like industrial zoning. He claimed that families are not primarily motivated by “considerations of taste or beauty” to move to neighborhoods with zoning ordinances, demonstrating his belief that residential zoning is not just an aesthetic control.[33] Rather, they live in such neighborhoods because “children are likely to grow mentally, physically, and morally more healthful in such a neighborhood than in a disorderly, noisy, slovenly, blighted and slum-like district.”[34] Bettman appealed to the majority’s conservative sensibilities, emphasizing the “moral strength of upper-class children,” according to Chused’s analysis.[35] He did this all while alluding to the purported alternative of wealthy suburbia: low-income tenements in neighborhoods like New York’s slums. His analysis of planned neighborhoods and childhood development was not very scientifically rigorous, but it was in line with the then-popular beliefs of positive environmentalism and gave his argument credibility.

In light of the brief, the Court decided to have Euclid reargued. Justices Sutherland and Taft were convinced by Bettman’s display of how zoning can exclude poor and working-class families from the planned, wealthy neighborhoods.[36] They cast critical votes in Euclid, breaking from their traditional conservative views to affirm a new form of government regulation. Swayed by Bettman’s brief, Sutherland also depicted apartments as nuisances in his opinion for the majority, placing residential zoning within the state’s police power:

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.[37]

While the Court agreed with Euclid, three staunchly conservative justices—Willis Van Devanter, James McReynolds, and Pierce Butler—dissented without writing an opinion. Sutherland’s opinion diverged from the traditional conservative aim to limit state power, which his dissenting colleagues clearly had in mind.

The opinion was laced with facially race-neutral discussion of apartments, disguising covert racism as concern for “nuisances” that arise when apartment-dwellers move into a neighborhood of single-family homes. Sutherland’s assessment of apartments as parasites entirely ignores that multi-family buildings are occupied by human residents, just like detached houses. He claims that apartments “take advantage of the open spaces and attractive surroundings” in neighborhoods, implying that apartment dwellers—who were typically minorities and lower-income—are less deserving of amenities than wealthy families. Without qualification, Sutherland also asserts that apartment residents bring nuisances and degrade public safety. In turn, these nuisances and dangers deprive children of spaces to play; Sutherland cannot seem to fathom the possibility that families with children could live in an apartment, standing to benefit from open space as well.

Despite not actually referring to class or race, Sutherland is fairly overt in his discriminatory views and stereotyping. In this sense, the holding in Euclid is strikingly similar to NIMBY (Not In My Backyard) arguments in favor of exclusionary zoning today. With sustained political support, the Court was able to create the constitutional justification for the residential zoning ordinances that still keep American cities segregated. Euclid remains the law of the land nearly one hundred years later, with over three thousand other cases citing it. One such case was Village of Arlington Heights v. Metropolitan Housing Development Corporation, which was decided in 1977. The Court found that an ordinance barring multi-family housing—effectively excluding low-income and minority households—was constitutional despite its “racially disproportionate impact.”[38] For a zoning ordinance to be considered unconstitutional under the Fourteenth Amendment’s Equal Protection Clause, there must be  “proof that a discriminatory purpose has been a motivating factor.”[39]

By limiting construction of multifamily housing in desirable neighborhoods, residential zoning excludes millions of American individuals and families—primarily the poor and minorities—from economic opportunity.[40] This problem is widespread; approximately 75 percent of land in major U.S. cities is zoned exclusively for detached single-family homes.[41] Beyond limiting opportunities for class mobility and social integration, exclusionary zoning has had detrimental impacts on housing markets and the macroeconomy. Urban economists broadly agree that zoning artificially inflates housing costs by restricting the supply of housing, particularly the supply of affordable housing for low-income residents. Minneapolis tested this theory in 2019 by ending single-family zoning. As a result, the city has built more housing than any other Midwestern city, all while rents have fallen relative to inflation.[42] Further, economists Gilles Duranton and Diego Puga found that relaxing zoning regulations in just seven cities—New York, Los Angeles, San Francisco, Washington, Boston, Seattle, and San Diego—would increase national aggregate output by nearly 8 percent and aggregate consumption by over 2 percent.[43]

Political action to undo exclusionary zoning is limited to the state and local level because all zoning ordinances since Euclid rest on the police power, which is delegated to states through the Tenth Amendment. Due to the lack of federal authority over zoning, there is little room for sweeping, national change on the issue—overturning Euclid’s broad constitutional protection on residential zoning seems to be the only feasible option.

Joshua Braver and Ilya Somin, in their article “The Constitutional Case Against Exclusionary Zoning,” argue that “Euclid should be reversed or strictly limited, and that exclusionary zoning restrictions should generally be considered takings requiring compensation.”[44] Along with strategies for reversing Euclid, they present both living constitutionalist and originalist theories in support of their position. Given the current ideological makeup of the Supreme Court, an originalist framework would seem necessary to persuade the conservative majority.

They begin by noting that historical conceptions of property include the right to use. John Locke’s definition of property rights, which heavily influenced Founding Era thinkers, was based around improvement. For one to be able to exercise the right to property, they must “improve” their land through construction and cultivation.[45] Braver and Somin point out that improvement necessitates the right “to make further improvements,” which can be limited by strict zoning laws.[46]

James Madison and other framers of the Constitution also included the right to use within their definitions of property.[47] In Madison’s essay “On Property,” he presents a notably broad view of property rights. “In its larger and juster meaning,” Madison wrote, “[property] embraces everything to which a man may attach a value and have a right.”[48] He advocates for a government which does not take property “without indemnification to the owner,” thus maintaining the “inviolability of property.”[49] Madison was also the primary framer of the Takings Clause of the Fifth Amendment, which is the basis of Braver and Somin’s argument that zoning restrictions not protected by police power should be considered takings requiring just compensation. The clause states clearly: “nor shall private property be taken for public use, without just compensation.”[50] Importantly, the Takings Clause was not incorporated against state governments by 1926, which is why Euclid was argued under the Due Process Clause.[51]

Apart from Euclid, the Court has upheld the broad property rights found in the Constitution that include a right to use. In Yates v. Milwaukee, the City of Milwaukee attempted to force the owner of land bordering a river to remove a wharf from his land.[52] The Court upheld the landowner’s right to use, specifically “the right to make a landing, wharf or pier for his own use or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public.”[53] One year later, in Pumpelly v. Green Bay Company, the Court ruled that the flooding of a landowner's property due to the construction of a dam was considered a taking.[54] The opinion explains that “a serious interruption to the common and necessary use of property may be … equivalent to the taking of it, and that under the constitutional provisions it is not necessary that the land should be absolutely taken.”[55] In another flooding case, the Supreme Court of New Hampshire opined in the influential Eaton v. Boston, Concord & Montreal Railroad that “property is the right of any person to possess, use, enjoy, and dispose of a thing” and “means only the rights of the owner in relation to” their land.[56]

Clearly, the Takings Clause applies to much more than literal repossession of a property. Not only do early writings on property reflect this interpretation, but the Supreme Court has routinely considered the right to use as essential to property ownership. Compensation must be required whenever the state inhibits the right to use property, so long as it cannot be justified by police power. Residential zoning limiting the construction of affordable, multifamily housing certainly does not contribute to the “health, safety, and public welfare” of a community—in fact, this type of exclusionary zoning may weaken the stated goals of police power. The Court’s ruling in Euclid was based on the classist and racist assumption that the people inhabiting apartment buildings inherently bring “nuisances” to a neighborhood.

And now, progress on this issue seems possible despite the current conservative balance of the Court; valid originalist arguments supporting the curtailing of Euclid would not require a liberal bench. Undoing Euclid’s protection of exclusionary zoning ordinances limiting multi-family housing would not only have obvious socioeconomic benefits, but fix a century-old legal error by the Court.

[1] Richard H. Chused, “Euclid’s Historical Imagery,” 51 Case W. Res. 597 (2001) at 603 599, https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1416&context=caselrev Id. at 603

[2] Id. at 599

[3] Id. at 600

[4] Ibid

[5] Id. at 602

[6] Id. at 600

[7] Euclid v. Ambler Realty Co., 47 S. Ct. 114, 1926 U.S. LEXIS 8, at *25 (S. Ct. Nov. 22, 1926)

[8] Chused, supra note 1, at 603

[9] Ibid

[10] Id. at *32

[11] Joshua Braver and Ilya Somin, “The Constitutional Case Against Exclusionary Zoning,” Tex. L. Rev. 103 (2024) at 26, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4728312#

[12] Ambler Realty Co. v. Euclid, 297 F. 307, 1924 U.S. Dist. LEXIS 1709, at 27 (N.D. Ohio 1924)

[13] Buchanan v. Warley, 38 S. Ct. 16, 1917 U.S. LEXIS 1788, at *36 (S. Ct. Nov. 5, 1917)

[14] Euclid, supra note 7, at *26

[15] Braver and Somin, supra note 9, at 6

[16] Ambler, supra note 10 at *23

[17] Chused, supra note 1, at 607

[18] Ambler, supra note 10 at *14

[19] Ibid

[20] Id. at *15

[21] Id. at *14

[22] Id. at *15

[23] Id. at *16

[24] Id. at *17

[25] Braver and Somin, supra note 9, at 6

[26] Id. at 7

[27] Chused, supra note 1, at 610

[28] Id. at 609

[29] Id. at 607

[30] Id. at 611

[31] Ibid

[32] Id. at 612

[33] Ibid

[34] Ibid

[35] Id. at 613

[36] Matthew J. Ruppel, "A Taking by Any Other Name: Why Exclusionary Zoning Should Be Classified as a Per Se Taking," Seattle University Law Review Online (2024) at 16, https://digitalcommons.law.seattleu.edu/sulr_supra/29

[37] Euclid, supra note 7, at *50-51

[38] Village of Arlington Heights v. Metro. Hous. Dev. Corp., 97 S. Ct. 555, 1977 U.S. LEXIS 28, at *24 (S. Ct. Jan. 11, 1977)

[39] Id. at *26

[40] Richard D. Kahlenberg, Excluded: How Snob Zoning, NIMBYism, and Class Bias Build the Walls We Don’t See (2023)

[41] Emily Badger and Quoctrung Bui, Cities Start to Question an American Ideal: A House with

a Yard on Every Lot, N.Y. Times (June 18, 2019), https://www.nytimes.com/interactive/2019/06/18/upshot/cities-across-america-question-single-family-zoning.html

[42] John Burn-Murdoch, Repeat after me: building any new homes reduces housing costs for all, Financial Times (Sept. 15, 2023)

[43] Gilles Duranton and Diego Puga, Urban Growth and Its Aggregate Implications, Econometrica (November 2023) at 2222, https://www.econometricsociety.org/publications/econometrica/2023/11/01/Urban-growth-and-its-aggregate-implications/file/ecta200605.pdf

[44] Braver and Somin, supra note 9, at 4

[45] Id. at 14

[46] Ibid

[47] Id. at 15

[48] James Madison, Property, in The Founders’ Constitution (1792), https://press-pubs.uchicago.edu/founders/documents/v1ch16s23.html

[49] Ibid

[50] U.S. Const. amend. 5

[51] Braver and Somin, supra note 9, at 9

[52] Id. at 19

[53] Yates v. Milwaukee, 1870 U.S. LEXIS 1143, at *11 (S. Ct. Dec. 1870)

[54] ​​Pumpelly v. Green Bay Co., 1871 U.S. LEXIS 1325, at *29 (S. Ct. Dec. 1871)

[55] Id. at *25-6

[56] Eaton v. B. C. & M. R.R., 1872 N.H. LEXIS 75, at *13-4 (N.H. 1872)