Delineating Exclusionary Zoning

Abstract

Courts, scholars, and commentators routinely criticize or demand an end to “exclusionary zoning.”  These critiques often fail to provide a clear or consistent definition of what constitutes exclusionary zoning.  Specific zoning devices are sometimes provided as examples, such as zoning districts that permit only single-family housing and ordinances that prohibit any multi-family housing.  Often it is not clear whether these devices are deemed per se exclusionary, or if a determination of their status demands a more nuanced, contextual assessment.  With regards to single-family zoning and prohibitions on multi-family housing, the line between acceptable and exclusionary zoning is typically left unstated.  If a zoning ordinance’s least dense district allows duplexes, is it still exclusionary?  Rather than pinpoint specific practices that render zoning exclusionary, some analyses focus on the broader effects of a zoning regime, examining whether it increases the cost of housing production and makes it more difficult for lower-income and minority households to move to a community.  But this demands a determination of the proper baseline.  Is it a world with no land use regulations, since nearly any regulation may increase costs for someone? 

Greater specificity regarding those zoning devices that always (or sometimes) problematically exclude and how precisely they should be reformed would compel critics and supporters of existing zoning to take and defend more concrete positions.  This essay examines some of the challenges of identifying exclusionary zoning and frames them as reflective of longstanding questions involving line-drawing in the context of land use regulation.  These challenges reveal, in part, an uncertainty that has persisted since the early days of zoning regarding the scope of the police power and the determination of whether zoning provisions advance legitimate health, safety, and welfare concerns.   This brief essay is not intended as an exhaustive treatment of exclusionary zoning, but rather a more focused inquiry into how the term might be defined in a manner that would improve scholarly discourse and aid both courts and legislatures seeking to confront or eliminate it.