Excerpted From: Jon C. Dubin, From Junkyards to Gentrification: Explicating a Right to Protective Zoning in Low-Income Communities of Color, 77 Minnesota Law Review 739 (1993) (302 Footnotes)(Full Document)


JonCDubinLast year marked the seventy-fifth anniversary of comprehensive zoning in the United States and the sixty-fifth anniversary of the United States Supreme Court's approval of zoning as a valid exercise of the police power in Village of Euclid v. Ambler Realty Co. More specifically, Euclid upheld the general principle of using the police power to separate incompatible uses and to protect residential uses and residential environments from the pressures of growth and industrialization. Relying on analogies to nuisance doctrine, Justice Sutherland declared that "a nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard." Thus, the concerns over health, safety, and the general welfare that are embodied in the police power were properly extended through the device of zoning to protect single-family residences from the encroachment of commerce and industry.

Prior to Euclid, municipalities had not only used zoning and residential district laws to segregate uses deemed undesirable but also to mandate racially segregated residential patterns. Notwithstanding judicial invalidation of many of these practices, significant segregated residential patterns remain as a legacy of discriminatory zoning and land use planning.

Although much litigation and scholarship has focused on the myriad exclusionary zoning and land use planning devices that are responsible for creating and perpetuating residential segregation, another invidious legacy of Euclid has gone largely unnoticed. Minority communities, which were often established as separate communities as the result of discriminatory zoning and planning devices, are then frequently deprived of the land use protection basic to Euclidean zoning principles. Urban planner and professor Yale Rabin asks rhetorically:

Why is it that older black neighborhoods in many American cities are frequently interspersed with land-uses ... which are intrusive, disruptive, even hazardous, and which degrade the residential environment? Is it because blacks were forced into these already hostile surroundings by the pressures of segregation? Or have these incompatible activities somehow intruded into established black residential neighborhoods isolated by segregation? There may well be some examples of blacks moving next to junkyards; but my own experience suggests that the junkyard moving into black neighborhoods is the more common pattern, and that zoning has played a prominent role in the process.

Professor Rabin labeled the practice of superimposing incompatible zoning on communities of color "expulsive zoning," observing that the net effect of the practice is a piecemeal replacement of residents with the superimposed uses and their owners. The imposition of incompatible zoning occurs through lower-grade zoning or zoning authorizing noxious commercial or industrial uses which undermine the quality of the residential environment and discourage continued residencies. Residents deprived of zoning protection are vulnerable to assaults on the safety, quality, and integrity of their communities ranging from dangerous and environmentally toxic hazards to more commonplace hazards, such as vile odors, loud noises, blighting appearances, and traffic congestion.

Higher-grade zoning, zoning or planning measures that induce certain higher-quality residential or other uses can produce similar incompatible and disruptive results. These higher- cost uses create market pressures that effectively price out existing low-income residents through the process of gentrification. Residents subjected to incompatible upzoning face the prospect of involuntary displacement and the functional and psychological trauma of dislocation and perhaps homelessness.

This Article explores the history, development, and legal ramifications of government's failure to provide protective zoning to low-income communities of color. Part I provides an historical overview of this failure by examining the intertwined judicial treatment of racial zoning and protective zoning, and the major court decisions that influenced the proliferation of segregative land use controls that have promoted and perpetuated separate minority communities. The failure to respect and protect the quality of the residential environment of these communities is a by-product of separate land use policies, resulting in the absence of zoning protection from diverse modern-day land use threats ranging from the siting of environmental hazards to the foreseeable development-induced displacement of low-income residents. Part II evaluates the various constitutional and statutory sources that support a right to protective zoning to preserve the residential integrity of low-income communities of color and to remedy the present day consequences of past inequitable zoning.

[. . .]

The persistence of stark patterns of residential segregation in the 1990s serves as a reminder of this country's legacy of systematic discrimination in land use policy. At the same time, new and insidious forms of land use assaults-ranging from the disparate siting of toxic waste facilities to the stimulation of foreseeable race-based gentrification-pose unprecedented risks to the survival and integrity of low-income communities of color. Both new and recycled legal approaches offer the potential for reinvigorating community improvement and equalization litigation efforts to remedy historic and modern-day land use inequalities. These and other nonlitigation efforts are necessary to provide long overdue fulfillment of the congressional promise of a suitable living environment for all American families and to return Justice Sutherland's proverbial pig from the "hood" to the barnyard once and for all.

Associate Professor of Law and Director, Poverty Law & Civil Rights Clinic, St. Mary's University School of Law.