Abstract
Excerpted From: Sarah J. Adams-Schoen, The White Supremacist Structure of American Zoning Law, 88 Brooklyn Law Review 1225 (Summer, 2023) (556 Footnotes) (Full Document)
When I began this research project in the summer of 2021, those who lived in the predominantly Black neighborhood where I grew up Portland, Oregon's Cully neighborhood--experienced a catastrophic and unprecedented heat wave at temperatures as much as 25°F higher than those who lived in Portland's restrictive, amenity rich single-family neighborhoods. Cully is one of the most racially and ethnically diverse neighborhoods in Oregon. Despite being home to higher concentrations of families than Portland generally, Cully has fewer paved roads, sidewalks, and recreational spaces, and more polluted land and air.
In Eugene, Oregon, where I currently live, an environmental justice investigation found that 99.9 percent of toxic air emissions occur in just one of the city's zip codes--a zip code that is less white and less restrictively zoned than other residential areas of the city. Residents in this zip code experience higher rates of asthma and other respiratory diseases, absences from school and work, incidents of COVID-19 related hospitalization and death, and are more vulnerable to toxic wildfire smoke.
That these environmental burdens fall more heavily on Portland and Eugene's communities of color is neither a historical accident nor the result merely of market dynamics and individual preferences. Scholars have amassed substantial evidence of the correlation between the notoriously white supremacist nature of federal housing programs of the 1920s to the 1960s-- including, for example the Homeowners Loan Corporations' actuarial risk mapping known as “redlining”--and the disparate allocation of environmental burdens to communities of color and very low income communities. These and other scholars also provide ample evidence that a unique feature of American zoning law, a strict residential use taxonomy that privileges “single family” homes over “multifamily” homes, has had the effect of economically and racially segregating US cities. Critical legal geography scholar Elise Boddie's theory of racialized territoriality identifies laws that enforce geographic separation, including facially neutral zoning laws, as integral to the perpetuation of “racial hierarchy.” Sheryll Cashin and Dorceta Taylor, both of whom have written extensively on race and class segregation in US cities, also identify American zoning law as among the laws and government policies that shaped and perpetuate racialized spatial boundaries. Moreover, a relatively small but compelling body of urban planning and sociology scholarship provides compelling evidence that early twentieth century lawyers, planners, and real estate professionals developed American zoning law's residential use taxonomy specifically to entrench a separate and unequal dual housing system.
This residential use taxonomy, which established a hierarchy of residential uses with the detached single-family home at its apex, was the defining feature of American zoning law at its inception and it remains so today. Zoning codes in US municipalities typically include one or more “single-family” district that limits the primary use of each buildable lot within its boundaries to a single, detached dwelling, built on site and occupied by a single “family” or “household unit.” These features distinguish zoning in US cities from zoning elsewhere in the world. The provision of a regulatory preference for the single-family residence has been identified as the primary purpose of zoning in US cities, the source of more controversy than any other aspect of American zoning law, and a key feature of the dual housing system that Cashin so aptly identifies as a system of “American residential caste.”
And yet, examination of the development of this residential use taxonomy is largely missing from analyses of American zoning law's historical development its ubiquity, controversy, and well-documented exclusionary effects. The origin story of American zoning tends to focus on three key events. The first is New York City's adoption of citywide zoning in 1916, which is often characterized as the first comprehensive zoning adopted in the United States. The second is the Department of Commerce's development of a model state zoning enabling statute, the Standard State Zoning Enabling Act (SZEA), first published in 1923. The third is Village of Euclid v. Ambler Realty, the seminal case in which the US Supreme Court approved of comprehensive zoning with separate, exclusively single- and two-family residential districts as a legitimate police power function. Euclid's zoning ordinance is almost universally described as having been patterned on New York City's 1916 Zoning Resolution. But New York City's Zoning Resolution followed the German and English models of zoning by recognizing only one category of residential use. This oversight obscures the fact that Euclid's ordinance, like most zoning ordinances adopted after 1916, was an amalgam of New York City's Zoning Resolution and Berkeley, California's zoning ordinance. Adopted a few months before New York City's Zoning Resolution, Berkeley's ordinance featured a single-family district, a single- and two-family district, and an apartment district that provided a spatial buffer zone between single- and two-family districts and commercial and industrial districts like the zoning ordinance at issue in Euclid.
California's early twentieth century urban reformers devised the concept of a land use district in which only so-called single-family homes were permitted, combined with other cost enhancing regulatory restrictions such as relatively large minimum lot sizes, to use economic class as a proxy for race and thereby “protect” “high class” neighborhoods from “invasion” by People of Color. They structured Berkley's zoning code and map to maintain the exclusivity of these neighborhoods for white residents through the use of physical buffers between restrictively regulated single-family districts and areas where noxious land uses such as cement plants and rail yards were permitted. In undesirable areas of the city where more People of Color lived, they also allowed smaller, less restrictively regulated single-family residences, duplexes, and multifamily residences as well as land uses that would be akin to nuisances if located in “high class” neighborhoods. This strategy was referred to as “overzoning,” but may be more aptly characterized as “expulsive zoning.” This chapter of the origin story of American zoning is almost universally omitted from land use law texts and discussions of racially discriminatory zoning.
Also largely absent from the historical narrative of American zoning law--and the pre-Civil Rights Act of 1964 period generally--is the federal government's widespread promotion of facially neutral comprehensive zoning as an integral part of its twentieth century agenda to develop and entrench a separate and unequal dual housing system. Scholars, advocacy organizations, and the media have shed considerable light on the Federal Housing Administration and Homeowners Loan Corporation's use of race based underwriting policies and “whites only” federal programs designed to promote ownership of single-family homes. Much less is known about the federal government's recognition of facially neutral zoning--featuring Berkeley's residential use taxonomy--as an essential foundation for the success of these notorious federal programs and its massive multi-agency effort to promote zoning to states and cities throughout the United States for this purpose.
I suggest here that, by incorporating these neglected attributes of American zoning's origin story into the robust literature examining the racial segregation of US cities, exclusionary zoning, and environmental justice, what will emerge is an understanding that American zoning law is one of the most enduring white supremacist legal devices of the Jim Crow era. These attributes of American zoning law, and the Supreme Court's equal protection and substantive due process jurisprudence that essentially rubber-stamped its barely veiled white supremacist purposes, drove the racial segregation of most US cities, chronic underinvestment in neighborhoods of color, and overinvestment in predominantly white neighborhoods, resulting in multigenerational harms. Because residential segregation contributes to racial wealth gaps and enables the disparate allocation of environmental and climate-related burdens to communities of color, failing to grapple with the white supremacist organizing logic of American zoning's residential use taxonomy undermines efforts to increase housing justice, environmental justice, and climate justice reforms. The need for these interventions grows more urgent as renters face a tsunami of evictions, rising housing costs continue to outpace income, and cities face increasingly intense and frequent floods, heat waves, droughts, and encroaching wildfires.
This article proceeds in four parts. Parts I and II trace the geographic arc of racial zoning in the United States from its nineteenth century California origins to its rapid proliferation in cities of the Jim Crow South, and back to the American West. In the context of this history, Parts I and II assert that the Supreme Court's response to single-purpose racial zoning of the nineteenth and early twentieth centuries paved the way for Berkeley's adoption of a regulatory mechanism that could overcome the spatial, temporal, and enforcement limitations of racially restrictive covenants and withstand judicial scrutiny under the Fourteenth Amendment. Part II concludes with a review of primary historic and secondary sources that suggest facially neutral comprehensive zoning featuring Berkeley's strict residential use taxonomy was integral to the federal executive branch's racial segregation programs.
Part III builds on this interrogation of the federal government's role in the development and proliferation of zoning as a means to racially segregate US cities, beginning with an analysis of the Supreme Court's application of a minimum rationality standard of review in the seminal Euclid v. Ambler Realty opinion. In Part III, I argue that Euclid's minimum rationality standard greenlit widespread adoption of the barely veiled racial zoning promoted nationally by prominent zoning advocates and white supremacists. This allowed facially neutral zoning to become a lynchpin of the federal government's massive racial segregation campaign and contributed to the current judicial approach to Fourteenth Amendment challenges to zoning and other facially neutral laws that create and enforce racial and ethnic boundaries. This is an approach consistent with the Court's pronouncement in Barbier v. Connolly that the Fourteenth Amendment is not “designed to interfere with” the police power.
Part IV begins by reviewing some of the abundant empirical evidence demonstrating that the strict residential use taxonomy and related land use regulations successfully segregated most US cities by race and continue to operate to hoard local amenities like open space and access to public services to whiter neighborhoods while concentrating undesirable and hazardous land uses in or near neighborhoods where more People of Color live--including Portland's Cully neighborhood and Eugene's Bethel neighborhood. Finally, Part IV concludes with suggestions for reform.
[. . .]
American zoning law is characterized by a ubiquitous dualism that creates separate and unequal neighborhoods delimited by race. The early twentieth century segregationists who conceived of single-family zoning as a mechanism to protect so-called high-quality neighborhoods from invasion by People of Color while allowing intense and noxious land uses where People of Color lived succeeded in constructing a legal mechanism that satisfied the Progressive Era Supreme Court's low bar for police power regulations with racial overtones. With significant support from the federal government, they ultimately succeeded in racially segregating American cities and enriching white property owners at the expense of People of Color and very low income white households.
American zoning's nearly ubiquitous and internationally aberrant zoning taxonomy and related regulations continue to achieve their original segregationist purposes. The same zoning regulations that helped create and maintain segregated residential neighborhoods in American cities in the 1910s through the 1960s endure today. City governments throughout the United States continue to disproportionately invest more in the development and maintenance of sidewalks, playgrounds, parks, open spaces, street trees, and other amenities in restrictively zoned, disproportionately white neighborhoods. Areas zoned for multifamily residences continue to exist adjacent to zones that allow high-intensity land uses that local legislative bodies deem incompatible with the needs of families, including liquor stores and bars, and so-called adult uses like strip clubs, industrial polluters, landfills, and wrecking yards.
Illustrative of this, the Cully neighborhood where I grew up in the 1980s, shown on the aerial map in Figure 3, provided a “buffer” between rail yards, industrial plants, and a twenty-four acre landfill to the north, and exclusively single-family neighborhoods to the south. Oregon and the City of Portland--even with their robust embrace of zoning reform and elimination of single-family districts until June 2022 to allow an industrial polluter to release high quantities of particulate matter, nitrogen oxides, sulfur dioxide, arsenic, and lead into the air, water, and soil of the Cully neighborhood, notwithstanding the many families packed into the neighborhood's densely zoned residential districts.
Across the political spectrum, many who reside in single-family residential districts resist efforts to allow other housing forms such as duplexes, triplexes or apartment buildings in their districts because they believe allowing multifamily residences in their neighborhood will increase traffic, congestion, noise, air pollution, and crime. Some object that eliminating the single-family monopoly by, for example, allowing duplexes and triplexes in all residential zones, would place too great a burden on public schools, streets, and water and sewer infrastructure, or would exacerbate urban environmental problems by increasing the amount of impermeable land and decreasing the number of trees in urban and suburban residential areas. These objections often perpetuate an unspoken and unacknowledged privileging of disproportionately white, restrictively zoned neighborhoods over less restrictively zoned neighborhoods that are home to more People of Color where schools and infrastructure are already taxed, surfaces are paved, air is polluted, and the tree canopy, if it exists at all, provides little shade on a 116°F day.
The failure to acknowledge the segregationist design and effect of restrictive residential zoning allows these and other objections to eclipse the urgent need for reform--a need that grows more urgent as cities face increasingly intense and frequent heat waves, droughts, wildfires, and other manifestations of the climate crisis. To the extent American zoning law can be reformed to value the lives of People of Color, courts, commentators, and activists must grapple with the law's white segregationist and ghettoizing structure.
Although I am not sure whether such reform is possible, I remain cautiously optimistic. Accordingly, I end with the following wise and hopeful words:
Whiteness itself can be redefined--so that it gets equated with taking responsibility and growing up.
None of this will be easy. It will take great effort from many white Americans, individually and collectively, over a period of years. Yet the only alternative is the perpetuation of white-body supremacy and a great deal of dirty pain for all. --Resmaa Menakem
Do not get lost in a sea of despair. Be hopeful, be optimistic. Our struggle is not the struggle of a day, a week, a month, or a year, it is the struggle of a lifetime. --John Lewis
Sarah J. Adams-Schoen, Assistant Professor, University of Oregon School of Law. Please direct correspondence to
