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The Constitutional Case Against Exclusionary Zoning
BY CHUCK KASKY
Exclusionary zoning laws, a pervasive feature of land use planning in the United States, have long been scrutinized for their discriminatory effects on marginalized communities. These laws typically impose restrictions that exclude lower-income residents, predominantly affecting racial minorities, by limiting the construction of affordable housing or multifamily units. While the social and economic implications of zoning have been extensively debated, its constitutional standing presents a compelling legal question.
At its core, zoning practices clash with principles embedded in the U.S. Constitution, particularly in relation to the Equal Protection Clause of the Fourteenth Amendment, and perhaps even the takings clause of the Fifth Amendment. Zoning perpetuates systemic inequities, obstructs socioeconomic mobility, and undermines democratic ideals of fairness and justice.
The Fourteenth Amendment: Equal Protection Clause
The Equal Protection Clause of the Fourteenth Amendment serves as a cornerstone for challenging exclusionary zoning. It mandates that no state shall “deny to any person…the equal protection of the laws.” This clause has historically been invoked to address discriminatory practices rooted in racial or economic inequality. Exclusionary zoning, which disproportionately impacts minority and low-income populations, can be seen as a violation of this constitutional provision.
For instance, by restricting the development of affordable housing, zoning effectively prevents lower-income families, often disproportionately people of color, from accessing certain neighborhoods. This leads to the de facto segregation of communities, a reality starkly at odds with the promise of equal protection. Landmark cases such as Shelley v. Kraemer (1948), which invalidated racially restrictive covenants, and Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977), which set a framework for evaluating discriminatory intent in zoning laws, provide significant legal precedents for challenging zoning under the Equal Protection Clause.
Zoning, even when not explicitly discriminatory, operates in a way that entrenches existing racial and socioeconomic disparities. Courts have recognized the harm of policies with discriminatory effects, emphasizing that actions with a disparate impact on protected classes may violate constitutional rights, even if discriminatory intent is not immediately evident.
Regulatory Takings
A “taking” typically refers to instances where the government physically seizes private property for public use, like building a road or a park. However, courts have recognized that even when no physical property is seized, a regulation can be so burdensome that it effectively takes away the property’s economic value or viable use, triggering the Fifth Amendment’s protections.
The U.S. Supreme Court has developed two main approaches to determine whether a regulation, such as zoning, constitutes a taking:
Categorical Taking. In Lucas v. South Carolina Coastal Council, (1992) the court held that a taking occurs when a regulation deprives a property owner of “all economically beneficial use” of their land.
Balancing Test. The approach taken in Penn Central Transportation Co. v. New York City (1978) considers factors like the regulation’s economic impact, how it interferes with reasonable investment-backed expectations, and the character of the government action.
When Zoning Could Be a Taking
Most zoning laws are upheld as a valid exercise of a government’s “police power” to regulate land use in the interest of public welfare, health, and safety. Village of Euclid v. Ambler Realty Co., (1926). However, zoning could be considered a taking in rare cases, such as:
When the zoning change significantly devalues a property.
When the zoning restriction leaves no viable or productive use for the land.
When the zoning regulation is perceived as arbitrary or discriminatory without serving a legitimate public purpose.
The courts have gradually developed a body of law to determine the limits of zoning power. If a zoning ordinance goes too far, the law requires compensation for the property owner. Zoning does not go too far simply because it causes a loss. Thus, commercial property can be rezoned to low density residential, although the property owner may suffer a huge financial loss.
Contemporary Relevance
In recent years, zoning has gained renewed attention amid growing concerns over housing affordability and racial inequality. Activists and policymakers have pushed for reforms to dismantle exclusionary practices, emphasizing their unconstitutional underpinnings. States like California and Oregon have begun to enact legislation that overrides local zoning restrictions to promote multifamily housing and affordable developments.
Zoning itself is generally not considered a “taking” under the Constitution. However, there are situations where zoning regulations could cross the line and amount to what is known as a “regulatory taking” under the Fifth Amendment, which states that private property may not be “taken for public use, without just compensation.”
The constitutional case against exclusionary zoning remains a challenging legal battle. Courts often defer to local governments on matters of land use, citing the principle of federalism. This deference can make it difficult to challenge zoning laws, especially when discriminatory intent is not overt. Nevertheless, the increasing recognition of exclusionary zoning’s harmful effects has strengthened calls for legal and legislative interventions.
As the housing crisis in Maryland intensifies, the constitutional battle against zoning will remain a pivotal issue. Advocates like Maryland REALTORS® and legal scholars will continue to explore innovative arguments and strategies to challenge these entrenched practices, striving for a future where zoning laws reflect the values of equity and opportunity for all.
Chuck Kasky is CEO of Maryland REALTORS®.
