Advocates at Cross-Purposes: The Briefs on Behalf of Zoning in the Supreme Court Garrett Power The Question The Supreme Court reheard arguments in Village ofEuclidv. Ambleron October 12,1926. The case was on appeal from a 1924 decision in the United States District Court in Cleveland, Ohio, which had heldthe village’s zoning ordi nance unconstitutional under the Fourteenth Amendment to the United States Constitution. It was the long-awaited test case that would determine whether 24,000,000 Americanscould continue to enjoy the benefits of comprehen sive building zone laws.1 Village Attorney James Metzenbaum ar gued on behalf of Euclid. Although by tradi tion governmental police powers were limited to situations involving health and safety, and suppression of nuisances, Metzenbaum opined that they were “elastic enough” to protect the “general welfare” from threats posed by the new conditions ofurban life. He averred that since Euclid’s ordinance promoted the “gen eral welfare,” it was a constitutional exercise of governmental power.2 Alfred Bettman appeared as an amicus cu riae defendingzoning on behalfofthe National Conference on City Planning. His brief made a significant tactical departure from the Metzenbaum brief. Rather than expansively defining zoning as a promoter of the general welfare, Bettman narrowlyjustified it as a nui sance suppressant. “Zoning... ha[s] the same fundamental basis as the law againstnuisance,” he said. It is merely a “new applicationofsanc tioned traditional methods for sanctioned tra ditional purposes.”3 As a matter of appellate advocacy, these two arguments seem consistent. They afforded the SupremeCourta choice—ifthe Court chose to openly embrace the new “sociological” ju risprudence, it could expand the police power to include city planning; ifthe Court preferred to pay lip service to stare decisis, it could ratio nalize zoning as consistent with precedent.4 80 JOURNAL 1997, VOL. II But in a surprising turn, Metzenbaum no tified the Court that in order to avoid “preju dice to any rights,” his client “earnestly” dis associated itself from Bettman’s brief. The Village rejected the argument that zoning could be constitutionally justified as a sup pressant of nuisances.5 The advocates for zoning were at cross purposes. Metzenbaum and Bettman were both staunch defenders of zoning and both pre sented complementaryviews. Yet Metzenbaum adamantly rejected Bettman’s line ofargument. This essay considers why. The answer may shed light and cast shadows on the still de bated conflict between public power and pri vate property.6 The ZoningMovement Building zone laws were part ofthe turn of the century Progressive Movement, which also advocatedmunicipal reform, civil service, plebi scites, “trust-busting,” railroad legislation, and wage and hour laws. The movers were middleclass businessmen, intellectuals, lawyers, and journalists, all with an interest in preserving the quality oftheir society.7 These reformers were intent on planning urban growth. Thoughtful public choices with respect to the location ofsewers, streets, parks, and public buildings, and suburban develop ment, and the design of transit and utilities system, were intended to create cities, beauti Because the Euclid ordinance discriminated on the basis of wealth, it could be interpreted as being discriminatory to blacks and immigrants who could not afford to live in single family dwellings. In Yick Wo v. Hopkins (1886) the Court had considered a San Francisco ordinance regulating the location of laundries and held it unconstitutional upon a finding that it was administered in a biased fashion so as to exclude laundries operated by Chinese immigrants. BRIEFS IN EUCLID v. AMBLER 81 ful and efficient. The first step along the road to the creation ofa city plan was zoning, “... the creation by law ofdistricts in which regula tions, differing in different districts, prohibit injurious or unsuitable structures.”8 Building zone laws had an immediate ap peal. NewYork City adopted the first compre hensive ordinance in 1916 and by 1926 there were at least425 zonedmunicipalities. Chicago, Boston, Baltimore, Pittsburgh, Los Angeles, Buffalo, and San Francisco headed the list of other zoned cities.9 The FourteenthAmendment Notwithstanding their legislative suc cesses, zoners had a nagging concern. In 1868, in the aftermath of the Civil War, the United States Constitution had been amended to limit the regulatory power of state and local gov ernments. Language in the amendment read...
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Nov 30, 2000
J.J Bloem + 1
Open Access