Zoning III

In recent years, the use of municipal and state regulation to plan, to zone, and to regulate, has come under increasing scrutiny. It may be helpful therefor to review the constitutional basis for laws and ordinances which impinge upon private property.

VILLAGE OF EUCLID, OHIO v. AMBLER REALTY CO., 272 U.S. 365 (1926). Euclid Ohio was an emerging village on the edge of suburban Cleveland. In order to promote sound orderly growth, the city adopted a comprehensive plan and zoning ordinance. Ambler Realty claimed that it had held a tract of vacant land for years for the purpose of selling and developing it for industrial uses:

• for which it is especially adapted, being immediately in the path or progressive industrial development; that for such uses it has a market value of about $10,000 per acre, but if the use be limited to residential purposes the market value is not in excess of $2,500 per acre; that the first 200 feet of the parcel back from Euclid avenue, if unrestricted in respect of use, has a value of $150 per front foot, but if limited to residential uses, and ordinary mercantile business be excluded therefrom, its value is not in excess of $ 50 per front foot.

The Court noted that planning and zoning resulted from the needs of modern complex society:

• Building zone laws are of modern origin. They began in this country about 25 years ago. Until recent years, urban life was comparatively simple; but, with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable.

The power to plan and zone derives from the power to provide for the common health and safety, the Court noted:

• the exclusion of buildings devoted to business, trade, etc., from residential districts, bears a rational relation to the health and safety of the community. Some of the grounds for this conclusion are promotion of the health and security from injury of children and others by separating dwelling houses from territory devoted to trade and industry; suppression and prevention of disorder; facilitating the extinguishment of fires, and the enforcement of street traffic regulations and other general welfare ordinances; aiding the health and safety of the community, by excluding from residential areas the confusion and danger of fire, contagion, and disorder, which in greater or less degree attach to the location of stores, shops, and factories. Another ground is that the construction and repair of streets may be rendered easier and less expensive, by confining the greater part of the heavy traffic to the streets where business is carried on.

Individual applications of a particular ordinance to particular facts might render that application unconstitutional, the Court wrote, but the overall scheme was constitutional.

Euclid rested upon the "police power" to provide for health and safety. More recent decisions have recognized that planning and zoning powers may promote aesthetic values as well. For example in BERMAN v. PARKER, 348 U.S. 26 (1954) the Supreme Court upheld a District of Columbia redevelopment plan stating:

• Public safety, public health, morality, peace and quiet, law and order - these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power and do not delimit it. See Noble State Bank v. Haskell, 219 U.S. 104, 111. Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm,  which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river.  We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive. See Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.