Exclusionary Zoning and Open Housing: A Brief Judicial History

Abstract

IN THE past thirty years metropolitan areas in the United States have undergone dramatic changes in their spatial structure as a result of the dispersal and suburbanization of both housing and jobs. Although the suburbs now contain more people than either central cities or rural areas, growth and migration have been highly selective. Middleand upper-income families, corporate offices, and the least noxious forms of manufacturing and trade have been moving out to the surburbs in increasing numbers. Lower-income and minority families, on the other hand, have remained in the central cities, where they compete in stagnating markets for jobs and housing. This has left city governments with the challenge of financing increasingly expensive public services from shrinking tax bases. The suburbs have tried to avoid these urban problems, for which they are partly responsible, by instituting measures to prevent taxdraining activities from following those that pay their way. These measures attempt to exclude all land uses that do not generate more in real property tax revenues than they consume in expenditures for public services. The National Commission on Urban Problems clearly identified the range of these exclusionary devices available to incorporated communities in 1968.' It included large-lot zoning, the exclusion of multiple-dwelling units, specifications for minimum house-size requirements, the exclusion of mobile homes, and the establishment of excessive subdivision requirements, to which should be added slow-growth and no-growth ordinances. The general effect of all of these devices has been to increase the cost of development and consequently the price of housing. Thus it has been argued that exclusionary practices, particularly zoning, constitute one of the major factors responsible for limiting the dispersal of lowand moderate-income families into suburban areas. These activities have come under increasing judicial attack in recent years, with suburban neighborhoods clearly segregated on the basis of income, social class, and color being cited as prima facie evidence of the exclusionary nature of local land use control.2 In this paper I shall provide an overview of the development of land use controls at the