“Offensive or Dangerous”: Discourses from a Century of Zoning

Katherine Manz

Edited by Keerthi Chalamalasetty, Harper Whittemore, Judge Baskin, and Sahith Mocharla

Every spring day, thousands of people crowd to Austin’s green spaces. They people-watch in Pease Park or take a stroll to Lady Bird Lake, or maybe they grab an expensive coffee and sit outside enjoying the fresh air. This is the “city in a garden,” as Dr. Andrew Busch calls it, and it is the brainchild of the Austin City Plan of 1928, which beautified public spaces, encouraged the development of an interconnected community, and also effectively segregated residential areas—Austin’s solution to the “Negro Problem” [1] [2]. Austin’s development today still follows the path laid out by those first zoning ordinances. 

Zoning, a regulation process that divides urban areas into use-based “zones,” first emerged in an increasingly industrial urban landscape as well as an increasingly contentious racial one [3]. The progression of the Industrial Revolution and manufacturing often made industrial land use extremely toxic and dangerous to public health [4]. Activists advocated for separation of industry and residential areas; at the same time, corporate interests aimed to sequester industry away from fashionable commercial areas of town [5]. Meanwhile, the Supreme Court invalidated explicit government-instituted racial segregation in residential areas with Buchanan v. Warley (1917), which raised alarm among White Southerners about Black encroachment and deteriorating property values [6]. 

New York City’s 1916 Zoning Resolution represented the first citywide zoning ordinance in the United States, regulating the size and use of buildings according to their location [7]. The idea spread like wildfire, particularly in the South, where lawmakers saw its potential to legally sequester away spreading Black populations. Over the next decade, cities passed zoning codes, states passed so-called “zoning enabling acts,” and then-Secretary of Commerce Herbert Hoover convened a panel of zoning experts to draft a Standardized State Zoning Enabling Act, which was passed by nineteen states [8]. From September 1921, when the Department of Commerce’s advisory committee on zoning was formed, to the end of 1923, the policies that Hoover had presented as “reasonable neighborly agreements as to the use of land” came to affect more than twenty-two million inhabitants [9]. The now-natural separation of modern cities into distinct residential, industrial, and commercial districts had begun. 

Constitutionality and Police Powers

The United States got its first zoning ordinance in 1916, but zoning was not found to be constitutional until Euclid v. Ambler Realty Co. (1926). The plaintiff, Ambler Realty, owned 68 acres of land in the village of Euclid, Ohio, which it had planned to develop for industry [10]. In 1922, however, Euclid became one of the hundreds of municipalities to adopt a zoning code. In doing so, the city restricted approximately a tenth of Ambler Realty’s land to residential and certain public buildings, such as churches and museums [11]. Unable to develop the land as planned, Ambler sued, alleging that the ordinance had substantially reduced the land’s value [12]. The suit claimed this deterioration of value deprived Ambler of liberty and property without due process, therefore violating the 14th Amendment.

The U.S. District Court ruled in Ambler’s favor in January 1924, although not based on the due process clause [13]. Considering the ordinance’s restrictions on the size and type of buildings in each “zone,” and that Ambler’s property spanned multiple districts, the court found that the zoning ordinance significantly restricted Ambler’s ability to build on and profit from the land [14]. The District Court found that the government violated the Fifth Amendment Takings Clause, which precludes the taking of “private property…for public use, without just compensation,” therefore interpreting Ambler’s loss of property value as an uncompensated appropriation for a public good rather than an unjustified diminishment of land value without fair hearing [15]. 

The city of Euclid appealed soon thereafter, and, in November 1926, the Supreme Court declared the Takings Clause inapplicable and reversed the decision in a 6-3 vote [16]. Their decision hinged on the proper limits of police power, which are adumbrated in the 10th Amendment as “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states” [17]. Police powers have generally been applied as the government’s power to enact coercive legislation in the service of public good [18]. However, case law is vague and contradictory regarding their boundaries. Berman v. Parker (1954) lays out examples of traditional uses of police power—“public safety, public health, morality, peace and quiet, law and order”—but concludes that defining its outer bounds is ultimately “fruitless,” and as such it is generally applied on a case-by-case basis [19]. In the case of Euclid, the Supreme Court found that the police power of local governments extended to zoning ordinances as long as they had some relation to public welfare and were not “arbitrary or unreasonable” [20]. The Court additionally found that Ambler Realty’s speculation of damages was not adequate grounds to bring a takings claim [21]. 

The broadness of police powers, along with the stipulations of the Euclid ruling, make Euclid problematic in its application. For instance, zoning, which according to the judgment should not be arbitrary or unreasonable, is inherently arbitrary. As Dr. Salim Furth argues, outside of geographic features, zones tend to be assigned based on “whatever land use happens to be the first in a specific location” [22]. These decisions are also often based on aesthetic and political considerations, which may involve outsourcing damaging activity to the residences of disempowered minority groups. In the immediate aftermath of Euclid, the Supreme Court did strike down two zoning ordinances in Nectow v. City of Cambridge (1928) and Seattle Title Trust Co. v. Roberge (1928) based on the unnecessary and injurious obligations that they imposed on residents [23] [24]. However, despite ongoing constitutional challenges to zoning over the past century, the Supreme Court has largely stood by the widest powers implied by Euclid, while the 1928 cases have had few lasting precedent-based implications.

Takings and Property Rights

Property value continues to be one of the most contentious issues of zoning, and for good reason. Zoning ordinances may prohibit certain types of construction on a lot, allow industry to flow into certain neighborhoods, or designate commercial sectors. They may, as in Murr v. Wisconsin (2017), automatically merge municipal lots under common ownership, preventing the owners from selling just one of them [25]. Or, as in Austin v. Reagan National Advertising (2022), ordinances may regulate the content of signs and billboards [26]. At the same time, zoning largely focuses on maintaining property value and sameness. Single-family housing zones, for instance, aim to rescue the value of low-density housing from the encroachment of apartments—even if that means artificially restricting housing availability. In sum, there are myriad ways for zoning ordinances to impact property value. Despite the relative popularity of challenges to zoning laws under the Takings Clause, however, few have been successful. 

What, then, are the standards for takings? With Penn Central Transportation Co. v. New York City (1978), the Supreme Court established a three-pronged test for takings cases that do not involve physical invasion: “the economic impact of the regulation on the claimant”; the “extent to which the regulation has interfered with distinct investment-backed expectations”; and the “character of the government action” [27]. These standards should, in theory, create a sturdy and evenly applicable definition of takings. However, Eric Claeys argues in “The Penn Central Test and Tensions in Liberal Property Theory” that the Penn Central test is vague and tends to favor the government in almost every case [28]. As a result, only physical invasions are deemed unconstitutional, while the questions of unreasonable requirements and public good are left unclear. It thus remains very difficult to prove takings, particularly through the intangible requirements of zoning ordinances.

Arguing against the ‘biased’ Penn Central Test, Joshua Braver and Ilya Somin contend in “The Constitutional Case Against Exclusionary Zoning” that the property rights associated with the Takings Clause may be interpreted as not only the right to exclude others from a property, but to use it largely as the owner sees fit [29]. This right remains subject to the authority of police power, but, as Braver and Somin assert, a stronger recognition of the right of land usage would almost certainly render many exclusionary zoning regulations today unreasonable [30]. In other words, the “distinct investment-backed expectations” of the property owner should be the right to reasonably use a property, whether commercial or not [31]. Based on similar principles, the Supreme Court has found in First English Evangelical Lutheran Church v. Los Angeles County (1987) and Lucas v. South Carolina Coastal Council (1992) that complete deprivation of economically beneficial use from a property constitutes takings [32] [33]. But while there is nominal recourse for complete destruction of value, the zoning ordinances that may disqualify immensely profitable uses have been deemed constitutional. Modern arguments against zoning, such as that of Braver and Somin, champion a more generous interpretation of takings, founded on a right to make use of property, which exclusionary zoning inherently inhibits. 

Race and Class Segregation

Perhaps most infamously, zoning has been used to institute de facto segregation with a legal veneer of colorblindness, as well as to prevent the construction of affordable housing and thus produce significant class segregation. This segregation, and its resulting provision of inferior services to marginalized communities, are the target of much anti-zoning advocacy today. 

City ordinances that prohibited the residence of certain racial groups were struck down as unconstitutional shortly before the heyday of zoning [34]. With Buchanan v. Warley (1917), the Supreme Court determined that concerns of racial mixing and the deterioration of property value were insufficient to deny property rights without due process, thus invalidating the practice under the 14th Amendment [35]. It is worth noting that the majority decision hinged on the White homeowner’s right to sell their property, not the Black person’s right to nondiscrimination. The disqualification of these ordinances, while they were obviously not the only tool of those advocating segregation, was nevertheless decried as a threat to White communities and culture [36]. In response, segregationists turned to threats and violence—and, with more success, “respectable” tactics including HOA advocacy, redlining, and zoning laws [37]. Under new zoning ordinances, White and wealthy neighborhoods often required single-family housing or a certain acreage per home. Meanwhile, Black-majority neighborhoods were zoned for multi-family housing and commercial or industrial use [38]. “Undesirable” buildings, such as large apartment buildings, bars, and liquor stores, could be consigned to majority-Black areas, where they would damage property value and cyclically worsen their “dangerous” reputation. At the same time, public services like schools and hospitals could be geographically delineated by race, allowing for the provision of separate and unequal resources. While zoning efforts were publicly portrayed as beautifying the city and securing a safe environment for residents, they were often in truth aimed at solving “the race segregation problem” [39]. 

Studies on the effects of zoning in Chicago and Seattle have found that immigrant and Black American communities see the least restrictive zoning ordinances with regard to industry, allowing significant pollution while also cutting residents off from the rest of the city [40]. In the twenty-first century, however, this disparity in regulation has left minority urban communities vulnerable to expensive commercial and mixed-use development. Density and use regulations prevent development in White, well-to-do neighborhoods. Highly restrictive zoning laws are explicitly constitutional; Village of Belle Terre v. Boraas (1974) saw the Supreme Court uphold a Long Island ordinance that prevented a group of six college students from renting a single-family property, thus creating a strict definition of family per zoning ordinance(s) [41]. These restrictions, particularly zoning for single-family homes, drive up housing prices while simultaneously casting laxly-regulated land—that of minority communities—in high demand. Thus, high-profile commercial ventures move into formerly denigrated communities, drive up the rent, and often drive native residents out of the city entirely [42]. 

Zoning ordinances similarly perpetuated a system of class segregation that was even more straightforward: areas that were not zoned for multi-family housing were effectively non-options for working-class families. As Jake Wegmann notes in “Death to Single-Family Zoning…and New Life to the Missing Middle,” most Americans residing near cities live in municipalities where 70-80% of the total land is reserved for single-family housing [43]. This zoning pattern restricts the number of total homes and increases their average size—and cost. In rapidly developing areas where housing costs have skyrocketed, working- and middle-class families can be shut out of cities. In response to this trend, Wegmann proposes increasing zoning to medium-density wherever possible, thus minimizing development costs and reversing some class stratification [44]. 

Unsurprisingly, the zoning regulations largely aimed at preserving segregation have continued to reproduce inequality into the modern day. In conjunction with decades of redlining (wherein loan companies withheld services from ‘high-risk’ minority neighborhoods) and segregation of public facilities, zoning has closed off racialized neighborhoods from the wider city, often leading to increased poverty and crime. In fact, one study found that zoning may be more important than either geography or transportation networks—the foundation of many urban models—in explaining where commercial and industrial activity are located [45]. It’s a powerful tool, and one that cannot be understood without its segregationist origins. 

In Defense of Zoning

Few of zoning’s initial proponents publicly labelled it a device for racial segregation; instead, it was meant to keep industry from polluting the lungs of children. Cities used zoning regulations to disentangle industry from residential areas, create well-maintained green spaces, and eventually implement more environmental oversight [46]. Today, as exclusionary zoning has necessitated wider urban sprawl and thus more greenhouse gas emissions, environmental arguments are less prevalent. As Christopher Serkin argues in “A Case For Zoning,” however, zoning’s virtues today are in the maintenance of “community character,” “enhancing property values, and allocating the costs of development”—in essence, controlling the pace of community change [47]. These advantages, of course, appeal mostly to already entrenched homeowners who seek to maintain their current communities. In appealing to these homeowners, cities have been able to stem “White flight” to the suburbs, where stability is traditionally more assured, and encourage urban reinvestment. In short, “zoning protection helped to make urban property a good investment again” [48]. 

Most zoning ordinances aimed at controlling change use exclusion and bans; for instance, they might exclude high-density housing to preserve a historic neighborhood. On the other hand, some states and localities have recently implemented inclusionary zoning ordinances, thereby facilitating the creation of affordable housing and preserving environmentally sensitive lands. Michael Allan Wolfe argues in “Goodbye, Zoning?” that removing zoning laws altogether would therefore result in more harm than good, retaining the old segregationist city structure while undermining new developments [49]. He and Serkin both define zoning as an inherently neutral institution, which can be misused or (as they propose) innovated to promote sustainability and affordability. In other words, the modern argument for zoning is that it is the most effective and least disruptive option to undo the damage of early predominant zoning ordinances. Where completely overhauling a system would almost certainly lead to unforeseen collateral consequences, zoning is a known factor. Working within the system is therefore the most uncontroversial—and least resource-intensive—option.

Conclusions

One hundred years since Village of Euclid v. Ambler Realty Co., zoning is both more deeply entrenched and under more scrutiny than ever before. Groups like the Institute for Justice’s Zoning Justice Project, grassroots Yes In My Backyard (YIMBY) movements, and the National Housing Crisis Task Force have pushed for zoning reform with an eye toward housing affordability, and they have had some success. California has been a leader in this capacity. In the past five years, the state has passed multiple bills overriding local zoning restrictions, weakening single-family zones, fast-tracking housing construction, and simplifying development processes [50]. Appealing to affordability in expensive metropolitan areas is certainly politically expedient at this moment in time, but it remains to be seen whether zoning will weaken in less progressive areas. At the same time, general affordability measures don’t necessarily resolve the de facto segregation that has been built into cities. Just as zoning did not cause segregation, its removal or reform will not resolve the issue. The various axes of discrimination that cordon racialized groups into certain areas must be addressed on each level, from internalized bias to local resource provision to, yes, zoning laws, for meaningful change to occur. 

Under extensive zoning ordinances, Austin has blossomed into the “city in a garden” that its lawmakers once dreamed of. With beautification and attraction of residents, however, has come a massive spike in housing prices. In response, Texas has not restrained its zoning capacities the way that California has, but local Austin authorities have increasingly adapted their zoning powers to facilitate the construction of new housing. Starting in 2015, the city has slowly rewritten zoning ordinances and approved funding for construction [51]. Austin’s HOME Initiative, passed in 2023, aims to rebuild the “missing middle” by reducing low-density areas. As a result, following a period from 2010 to 2019 where rents increased by 93%—more than in any other major American city—Austin’s median rent has now fallen to 4% below the U.S. median rent [52]. The beautifying reforms of the 1928 City Plan aimed to make the city a more attractive place to live. Today, in 2026, the city is revising zoning to make Austin a possible home for everyone who wishes to live there. 

Zoning is ubiquitous; even solutions to its failures rely on its constraints. It determines our land use, building height, the hours of operation of our businesses, and the color of our properties. It inevitably extends urban sprawl and thus the average person’s commute into the city, contributing to greenhouse gas emissions, while simultaneously impressing environmental standards upon industrial areas in order to protect public health. While it has historically been used to isolate and pollute majority-minority areas while maintaining exclusive, expensive, and Whites-only single-family neighborhoods, it may also be used to develop and maintain affordable housing. Given the Supreme Court has established a precedent of allowing zoning ordinances to operate with relative impunity, even when they destroy property value and impede land use, they may be some of the most powerful tools in shaping communities today. It’s time we stop taking zoning for granted, and instead decide how it can best suit what we now value.

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[1] Andrew M. Busch, City in a Garden: Environmental Transformation and Racial Justice in Twentieth-Century Austin, Texas (2017).

[2] Pease Park, Black History: “Austin City Plan of 1928” - Segregation of the City, PEASE PARK CONSERVANCY (Feb. 28, 2021), https://peasepark.org/news/2021/2/28/black-history-month-austin-city-plan-of-1928-segregation-of-the-city.

[3] Zoning and the Supreme Court, EBSCO https://www.ebsco.com/research-starters/law/zoning-and-supreme-court (last visited Apr. 1, 2026).

[4] Michael Lens, Zoning, Land Use, and the Reproduction of Urban Inequality, 48 ANN. REV. SOC. 421 (2022). 

[5] Salim Furth, A Brief History of Zoning in America—and Why We Need a More Flexible Approach, MANHATTAN INSTITUTE (Aug, 5, 2019),

https://manhattan.institute/article/a-brief-history-of-zoning-in-america-and-why-we-need-a-more-flexible-approach.

[6] Buchanan v. Warley, 245 U.S. 60 (1917).

[7] See [5].

[8] See [5].

[9] U.S. Dep’t of Commerce, A Standard State Zoning Enabling Act Under Which Municipalities May Adopt Zoning Regulations (1926), https://www.govinfo.gov/content/pkg/GOVPUB-C13-18b3b6e632119b6d94779f558b9d3873/pdf/GOVPUB-C13-18b3b6e632119b6d94779f558b9d3873.pdf.

[10] Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

[11] See [10].

[12] See [10].

[13] See [10].

[14] See [10].

[15] U.S. Const. amend. V § 10. 

[16] See [10].

[17] U.S. Const. amend. X. 

[18] ‘Police Powers,’ LEGAL INFORMATION INSTITUTE (2020), https://www.law.cornell.edu/wex/police_powers.

[19] Berman v. Parker, 348 U.S. 26 (1954).

[20] See [10].

[21] See [10].

[22] See [5].

[23] Nectow v. City of Cambridge, 277 U.S. 183 (1928).

[24] Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928).

[25] Murr v. Wisconsin, 582 U.S. 383 (2017).

[26] City of Austin v. Reagan National Advertising of Austin, LLC, 596 U.S. 61 (2022).

[27] Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).

[28] Eric R. Claeys, The Penn Central Test and Tensions in Liberal Property Theory, 21 Harv. Envtl. L. Rev. 339 (2006). 

[29] Joshua Braver & Ilya Somin, The Constitutional Case Against Exclusionary Zoning, 103 Tex. L. Rev. 1 (2024). 

[30] See [29].

[31] See [27].

[32] First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987).

[33] Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

[34] Seattle Civil Rights & Labor History Project, Racial Restrictive Covenants, UNIVERSITY OF WASHINGTON (2020), https://depts.washington.edu/civilr/covenants.htm.

[35] Buchanan v. Warley, 245 U.S. 60 (1917).

[36] Thomas Aiello, White Ice: Race and the Making of Atlanta Hockey (2023). 

[37] See [36].

[38] Emma Newcombe, How the Defeat of a Zoning Law Reshaped Racial Segregation, GOVERNING (Feb. 22, 2022), https://www.governing.com/context/how-the-defeat-of-a-zoning-law-reshaped-racial-segregation.

[39] See [1].

[40] Allison Shertzer, et. al., Zoning and Segregation in Urban Economic History, 94 REG. SCI. & URB. ECON. 103652 (2022). 

[41] Village of Belle Terre v. Boraas, 416 U.S. 1 (1974).

[42] Brian Kogelmann, Autonomy, Zoning, and Gentrification, 25 POLIT. PHIL. ECON. 109 (2026). 

[43] Jake Wegmann, Death to Single-Family Zoning…and New Life to the Missing Middle, 86 J. AM. PLAN. ASS'N. 113 (2020).  

[44] See [43].

[45] Allison Shertzer, et. al., Zoning and the Economic Geography of Cities, 105 J. URB. ECON. 20 (2018). 

[46] Millman Land, How Zoning Laws Can Help Reduce Pollution, MILLMAN (Jan. 25, 2021),  https://millmanland.com/industry-news/how-zoning-laws-can-reduce-pollution/.

[47] Christopher Serkin, A Case for Zoning, 96 NOTRE DAME L. REV. 749 (2021). 

[48] See [47].

[49] Michael Allan Wolf, Goodbye, Zoning?, 78 VANDERBILT L. REV. 1077 (2025).

[50] Ben Christopher, Gavin Newsom Signs Law Overhauling Local Zoning to Build More Housing, CALMATTERS (Oct. 10, 2025),

https://calmatters.org/housing/2025/10/newsom-signs-massive-california-housing-overhaul/.

[51] Liz Clifford, Seva Rodnyansky, & Dennis Su, Austin’s Surge of New Housing Construction Drove Down Rents, PEW (Mar. 18. 2026), https://www.pew.org/en/research-and-analysis/articles/2026/03/18/austins-surge-of-new-housing-construction-drove-down-rents.

[52] See [51].