Rebecca Tushnet —
When James Grimmelmann, Jeremy Sheff, Mike Grynberg, Steve Clowney and I decided to write an open source property casebook that could be shared freely with students, one of the benefits was the ability to teach the material in ways that made sense to us. The mortgage chapter, for example, is actually the “foreclosure” chapter: it focuses heavily on the foreclosure crisis of the past decade. In contrast to the casebook I used to use, it asks why lenders issued terrible loans rather than asking only why borrowers took terrible loans. Likewise, most casebooks call the topic of initial ownership “acquisition”; we call it “allocation” to emphasize that there are rarely resources that don’t lend themselves to a conflict over initial ownership. (Not unrelated to our general orientation towards the topic, we rely on fair use for some of the material we quoted, which traditional publishers often don’t allow no matter how strong the fair use case is.)
We also tell a different story around zoning than most casebooks. Our chapter on the topic, which I wrote, explores how zoning works in practice, with a particular focus on how it is used to create and reproduce racial hierarchies. As part of this approach, we include actual zoning codes and maps, which is surprisingly uncommon in the casebooks I looked at before writing this one. (There’s a slightly more standard version of the chapter for those who don’t want to spend multiple classes on zoning.)
To keep things concrete, our casebook focuses on St. Louis. St. Louis proper is one of the most segregated cities in the country, and its surrounding county is likewise highly segregated. Zoning in and around St. Louis is illustrative of issues that recur across the country. Examining zoning laws from this area allows the chapter to illustrate how property regulation in the US is, to a first approximation, always about race.
The city tried explicit racial zoning in the early 20th century, but the Supreme Court struck down a similar ordinance in Kentucky, reasoning that it infringed on property rights’ owners to sell to whomever they wished. A few years later the Supreme Court changed course in Euclid v. Ambler, blessing non-racially explicit zoning because apartment buildings and the like were “parasites,” harming presumptively middle-class children who deserved protection from crowding and other city ills.
Euclid allowed St. Louis to proceed with certainty in its initial zoning, which gave neighborhoods of whites with racially restrictive covenants a first quality zoning designation, while areas with substantial black populations were zoned for industrial development. Once the Federal Housing Administration was established during the New Deal, these zoning practices kept African Americans from being eligible for mortgage guarantees.
By the second half of the 20th century, the federal government was at least nominally hostile to racial discrimination, but it did accept facially neutral economic discrimination that “just happened” to preserve racial lines. Zoning restrictions were part of practices of systematic exclusion, including sporadic but consistent violence against black families moving to white neighborhoods. As St. Louis County expanded, whites developed a system of new municipalities, each incorporated with a restrictive zoning code, many of which create formal barriers to integration.
Our chapter goes through the mechanics of zoning restrictions by examining the actual zoning codes of Ferguson, now a majority-black city with a per capita income of less than $21,000 made infamous after the death of Michael Brown, and Ladue, which is the wealthiest suburb of St. Louis with a 1% African-American population.
Ladue’s economic and racial homogeneity didn’t prevent conflict between landowners; zoning was a way of further controlling how people in the community live, here in accordance with conservative values. Ladue has been the source of several important cases about aesthetic zoning and family composition zoning. Among other things, Ladue banned signs other than tiny “for sale” signs on residential properties, and fined a resident who put up a sign opposing the first Gulf War. A unanimous Supreme Court held that given the importance of the home in providing a uniquely cheap and convenient way of expressing oneself, the ban was unconstitutional. However, Ladue retains a number of restrictions on things you can do with your house, and many of them have survived. Another well-known case upheld Ladue’s general architectural standards as not violating substantive due process or the First Amendment against a challenge by a couple who wanted to build a modernist, architect-designed house in a neighborhood of colonials.
Ladue also has family status regulations designed to keep unrelated people from living together. In single family zones, which is to say the entire town, a family had to be “[o]ne or more persons related by blood, marriage or adoption, occupying a dwelling unit as an individual housekeeping organization.” The only exception was, of course, for servants. The Missouri Court of Appeals upheld this restriction as applied to a heterosexual family where both adults had children from previous relationships. Ladue was allowed to create zones where “family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” How an unmarried couple interferes with this sanctuary is left as an exercise for the reader.
Ferguson’s most recent planning document is from 1998, a decade older than Ladue’s, which itself says something about the disparity in resources. The Ferguson zoning code shows how the embrace of Euclidean zoning manifests in a different economic context. Ferguson too wants suburban development, at four single-family houses per acre. But residential land use doesn’t generate much in the way of taxes, and traditional Euclidean zoning can’t fix the problems that it has helped to cause.
For example, Ferguson’s plan recognizes that owners of rental property, particularly absentee owners who didn’t live in the community, didn’t maintain the property as well as owner-occupied properties, which caused health and safety problems. Ferguson’s solution was to require inspection of rental property for any change in occupation. The result was more occupancy-based and fine-based policing, which has disproportionate effects on poor, African-American renters. Ferguson’s plan also recommended reducing the number of properties that were rented, but the city couldn’t actually do that without landlords’ consent unless it condemned a lot of properties. And that didn’t happen. In addition, the zoning code testifies to the rapid disinvestment that has confronted Ferguson. Ferguson enacted new regulations on pawnshops and check cashing businesses in 1998. These businesses are specifically targeted at poor people. Indeed, they are completely banned in Ladue.
At a deeper level, the legacy of Euclidean zoning is living spaces that are grouped together by their residents’ economic situations and located far away from work, school, and shopping. The result is a built environment that contributes to the poverty and social isolation in Ferguson, underlying the protests surrounding Michael Brown’s death.
Brown was initially stopped, according to police, for walking in the street.
Here is the approximate location of the shooting. As one civil engineer noted:
The buildings are auto-oriented – parking minimums force that logical adaptation – and so they present a rather despotic front to people not in a car. There are no eyes on the street; the buildings all orient towards the parking lot. And nobody even cared enough when this was built to plant some shade trees next to the sidewalk so people could walk in a modest amount of comfort.
Are we surprised that two men would be walking in the street here? If they were going to be on the sidewalk, they would need to march single file.
Social relations are structured—to the point of life and death—by the built environment, and that environment is the product of legal codes as well as political decisions.
Our chapter also dives into responses to traditional Euclidean zoning, which has produced hollowed-out urban cores and car-dependent suburban enclaves like Ferguson and Ladue around the country. One response from planners has been New Urbanism, which is focused on mixed use and increasing density. New Urbanists around St. Louis have tried to use zoning to redeem its original sins, but the chapter questions whether this project may just be a prettier name for gentrification. Euclidean zoning is often associated with politically conservative homeowners who are eager to interfere with others’ use of their property; New Urbanism is associated with liberals, but the dynamic is otherwise similar.
Ultimately, our chapter aims to teach this complex history in a way that emphasizes the power of property law to shape society by shaping the built environment.
Rebecca Tushnet is the Frank Stanton Professor of the First Amendment at Harvard Law School.