In Euclid v. Ambler Realty, the Supreme Court upheld the constitutionality of zoning. Although three justices dissented, they did not write a formal dissent. This article is what a dissent might look like if the justices knew what we now know.
This case arises under the substantive due process doctrine. Under this doctrine, an ordinance is valid unless it is clearly arbitrarily and unreasonable. The majority upholds the separation from housing from commercial and industrial uses, and also upholds the separation of apartments from houses. As to the latter, we dissent.
The majority opinion upheld "the creation of residential districts, from which business and trade of every sort, including hotels and apartment houses, are excluded." Before addressing the constitutional question at issue we question the majority’s way of phrasing the issue. The majority describes districts made for detached houses as “residential” and describes apartment houses as “trade.” But this distinction makes no sense: if people live in apartment houses, these buildings are obviously “residential” as well. Conversely, detached houses are “trade” because people buy and sell them, just as people buy and sell hotels.
The majority reasons as follows:
it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses… 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 of play.
Let us break out these arguments one by one. First, the majority writes that "the detachment of detached house sections is greatly retarded by the coming of apartment houses"—in other words, that people will not build houses where apartment houses exist. The majority supplies no evidence to support this claim. In the absence of government-imposed restrictions, landowners will build whatever is more profitable. If people will pay them more for apartments, landowners will build apartments. If people will pay more for houses, landowners will build houses.
Perhaps the majority meant to write that apartments, like a polluting factory, will depress home value so significantly that houses will not be built. This suggestion is simply not factually based, and is thus arbitrary and unreasonable. In older American neighborhoods, multifamily housing often coexists amicably with houses of various types. For example, in Chicago's Gold Coast neighborhood, Lake Shore Drive is dominated by high-rise apartments and condominiums, while Astor Street a block away has townhouses and a smattering of high-rise condominiums. Yet the townhouses on Astor Street sell for as much as $5 million. Similarly, in Manhattan's Murray Hill, side streets have both townhouses and apartments, yet the townhouses sell for millions of dollars.
The majority also writes that apartment houses "monopolize the rays of the sun." Presumably, the majority meant to imply that the height of apartment buildings reduces sunlight. This argument is irrational because it assumes that all apartment buildings are skyscrapers—an obvious falsehood. In fact, many apartment buildings are one- or two-story "garden apartments" that are no taller than a single-family house. If some larger apartment buildings affect sunlight, the proper remedy is height restrictions rather than restrictions upon housing types.
Moreover, even taller buildings need not affect sunlight. Anyone who has ever actually visited a downtown of any size can see that with adequate safeguards, even a very tall building need not block out sunlight. For example, the west side of Chicago's South Michigan Avenue is lined with 10-20 story buildings, yet much of this street is as sunny as any rural street.
The majority then writes that apartments cause “the disturbing noises incident to increased traffic and business.” It is not clear what the majority means by "business" and "traffic." But human beings conduct business whether they live in a house or an apartment, and they create traffic whether they live in a house or an apartment.
Perhaps the majority means to say that apartments tend to have more people than houses, and that more people means more traffic—in particular, automobile traffic. The majority writes that apartments lead to "the occupation, by means of moving and parked automobiles, of larger portions of the streets." Automobile traffic is undoubtedly a problem, but (assuming that apartment houses do have more residents than houses) banning apartments does not alleviate the problem.
In fact, apartment dwellers are in fact less likely to be vehicle owners and users than other Americans. In 2017, 26 percent of apartment-dwelling households owned no car, as opposed to 9 percent of all American households. While apartment-dwellers comprise only 16 percent of all commuters, they comprised 38 percent of commuters who walked or biked to work and 40 percent of all public transit commuters.* Thus, a municipality that wished to limit auto traffic should limit the number of houses rather than limiting the number of apartments!
Finally, the majority seeks to hide behind children, claiming that the traffic induced by apartments "depriv[es] children of the privilege of quiet and open spaces for play." This remark implies that all children live in houses, since apartment-dwelling children are not being deprived of play spaces by being given places to live. But in fact, 22 percent of households in apartments have children—which means that several million households with children live in apartments. Because so many children live in apartments, the majority's suggestion is obviously irrational.
If the exclusion of apartments had no social costs, the majority's mistakes would be harmless. But zoning that excludes apartments has considerable social costs. If most municipalities endorse the majority's logic, large chunks of every municipality will soon be off-limits to apartments, thus creating a shortage of such housing. And where there are shortages of a commodity, people will bid up its price, and some people will have no place to live.
Furthermore, the sort of exclusionary zoning endorsed by the majority is likely to be a cover for illicit racial discrimination. Because Blacks and Hispanics earn less than whites, any regulation that limits the supply and increases the cost of housing is likely to exclude such races. And because apartment-dwellers earn 40 percent less than other households, this is especially true for regulations that exclude apartments. To the extent municipalities are aware of these facts, they can exclude these racial minority groups by passing ordinances similar to those upheld by the majority.
Admittedly, these effects can be mitigated if single-family housing is sufficiently abundant. In theory, a city could allow landowners to build enough housing to satisfy housing demand, thus making apartment houses less necessary. But in this very case, the city of Euclid has also taken steps to limit the supply of detached houses. In addition to zoning districts, this city also has "area districts." In each of these districts, the city requires a minimum lot size for dwellings. For example, in the A-1 district, dwellings must consume at least 5,000 square feet for interior lots and 4,000 square feet for corner lots. The A-2, A-3 and A-4 districts have less stringent restrictions. By requiring each house to consume a minimum amount of land, the city ensures that fewer houses would be built than if no such restrictions existed. For example, if an A-1 district contains 200,000 square feet of land, the 4,000-5,000 foot minimum ensures that no more than 50 dwellings can be built in such a district. Thus, Euclid’s laws both limit the amount of single-family homes and limit the availability of alternatives to single-family homes, thus creating an artificial shortage of housing. It logically follows that the rules upheld by the majority are likely to lead to higher rents.
To be sure, the constitutionality of the area districts was not addressed by the majority, and is not before this Court. However, their existence does suggest that the social harms of anti-apartment zoning will be only partially mitigated by homebuilders. Accordingly, we reject the majority’s contention that there is a rational basis for the exclusion of apartments from other housing.
*Demographic data on apartment-dwellers comes from the National Multi-Family Housing Council.
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