Three Generations of Separated Uses
Three Generations of Separated Uses
The Supreme Court that established zoning, and zoning as "concept creep"
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This got some attention on Twitter last month:
I only just realized this the day I wrote it (please forgive the typo I made tweeting on my phone.) I knew both of these Supreme Court rulings—Buck v. Bell (eugenics) and Euclid v. Ambler (zoning) were in the 1920s, but it had never occurred to me that they were decided by the same set of justices.
Interestingly, only one justice dissented from both majority opinions, and that was Pierce Butler, who I can’t say I’ve ever heard of. Oliver Wendell Holmes, who infamously wrote “three generations of imbeciles are enough,” was part of both majorities. Actually, Butler was the only dissenter in Buck v. Bell. Two other justices in addition to Butler dissented from the majority in Euclid. In other words, the Supreme Court of the late 1920s found both of these opinions pretty uncontroversial.
The passage from the Euclid decision that refers to apartment buildings as “parasites,” and which conceptually is pretty classist (or even eugenic), is this:
With particular reference to apartment houses, 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.
There are so many lines from this through to NIMBYism today: the conflation of people with automobiles or traffic, the notion that apartment buildings are somehow in conflict with “residential” neighborhoods, the arguments about sunlight and views and the need for greenery, with no accounting for the far greater environmental issues caused by low-density sprawl.
But there’s something more insidious here.
One of the interesting things about zoning is that what it is today, and even what it was by the time of the Euclid decision is related to, but very different, from it was originally conceived to be.
The initial genesis of zoning was as a technocratic public health idea, mostly about getting toxic or noxious industrial uses separated from residential areas. When we call zoning “separation of uses,” that’s what we’re referring to, even though modern zoning is far more complicated than that.
But very early on, you can see how this technocratic, pretty much objective idea—separating, actual, literal noxious uses or nuisances—was hijacked. You can see how the justices use the notion of “nuisance” conceptually, basically endorsing the idea that poor people and the buildings they live in are nuisances, and giving that opinion a detached, technocratic veneer. A dry public health concept became a condescending, exclusionary, classist ideology.
It reminds me, a little, of some of the right-wingers who have been looking askance at talk about public health during the pandemic. They fear that at some point the language of health and safety will stop referring to literal health, but rather become more figurative and thus ideological. Conservative ideas, for example, might be likened to a virus, and perhaps measures will be taken to stop their spread. (Of course, while they might fear that eventuality, many others have already actually experienced such a thing.) Everyone knows that nothing good usually follows the language of parasites and infections when applied to people.
Yes, that’s a bit paranoid. But when you look at the concept creep in zoning, and the subtle transformation of objective measures into subjective ones, it should give you pause. It can happen here, and it has happened here.
Now, I don’t think we should abolish zoning. I’m sure there’s a lot in the average zoning code that is useful, and you might need codes, of a better sort, to produce better built environments today (for example, the New Urbanists came up with “form-based codes,” which were an attempt to codify some of the old town-building wisdom we had lost by the 1990s.) Much as I write about zoning, it’s ultimately a thicket of legal concepts, and I’m not an expert on all of that.
But despite knowing more about this stuff than most people, I had never even heard that the Supreme Court that found zoning constitutional also approved of eugenics. I don’t know what, exactly, the connection is, but it’s unsettling.
If anyone knows more or wants to expand on this, leave a comment, send an email!
Social card image credit Manitoba Historical Maps/Wikimedia Commons, CC BY 2.0
Related Reading:
When Small Towns Wanted Tall Buildings
I was TA in school for an economics class that read lots of court decisions. They twist themselves into logic pretzels all the time using fallacies, and get to a conclusion of complete nonsense. Not surprising to see they did it for zoning too. They're supposed to be logical geniuses and they lead off with basically "one apartment building implies many apartment buildings." Nice going, team.
Butler was the lone Catholic.