It was on this day in 1928 when the U.S. Supreme Court issued its second most famous decision about zoning, Nectow v. City of Cambridge., 277 U.S. 183 (1928).
We say “second” because everyone knows that the first is the Court’s decision issued just two years earlier which generally upheld comprehensive use, height, and density regulations as a valid exercise of the government’s police power to regulate property uses to further the public health, safety, welfare, or morals. See Village of Euclid v. Ambler Realty Co., 272 U S. 365 (1926).
Partly because of the hype surrounding Euclid and the broad governmental embrace of exclusionary land use policies that Euclid unleashed, we think that Nectow has not received the attention it is due. After all, it should be seen as the companion case to Euclid: it was authored by same Justice who wrote Euclid (Justice Sutherland), and there’s a straight line between all three parts of the Court’s 1920’s land use trilogy (Mahon, Euclid, and Nectow), two of which are strong reaffirmations of property rights.
But today, Nectow is often dismissed as a byproduct of an earlier time, Lochnering of the substantive due process rational basis test, or even just too archaic to pay attention to.
But unlike Euclid, which was a facial challenge to zoning generally, Nectow was an as-applied challenge, asserting that placing some of Nectow’s land in a residential zone — and thereby causing a contract for sale of the land for non-residential uses to be cancelled — was arbitrary and capricious. A master appointed to find facts determined the residential designation was out of sync with the mixed uses in the surrounding area. But the Supreme Judicial Court of Massachusetts took Euclid and Justice Sutherland at their word and concluded “who are we, mere judges, to question what Cambridge’s zoning officials say is in the public interest?” (We’re paraphrasing of course, but that was the vibe.)
But Justice Sutherland was all “hang on, pay attention to what we said in Euclid; that wasn’t us telling courts to be poodles.” (Paraphrasing, again):
Nevertheless, if that were all, we should not be warranted in substituting our judgment for that of the zoning authorities primarily charged with the duty and responsibility of determining the question. Zahn v. Board of Public Works, 274 U. S. 325, 328, 47 S. Ct. 594, 71 L. Ed. 1074, and cases cited. But that is not all. The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and, other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare. Euclid v. Ambler Co., supra, p. 395 (47 S. Ct. 114). Here, the express finding of the master, already quoted, confirmed by the court below, is that the health, safety, convenience, and general welfare of the inhabitants of the part of the city affected will not be promoted by the disposition made by the ordinance of the locus in question. This finding of the master, after a hearing and an inspection of the entire area affected, supported, as we think it is, by other findings of fact, is determinative of the case. That the invasion of the property of plaintiff in error was serious and highly injurious is clearly established; and, since a necessary basis for the support of that invasion is wanting, the action of the zoning authorities comes within the ban of the Fourteenth Amendment and cannot be sustained.
So yes, zoning as a concept is within the police power, but we must keep at the forefront the core principle that property rights are to be respected. Facts, and not some vague incantation of the rational basis test should serve as the standard
As James Metzenbaum, the lawyer who represented the Village of Euclid later wrote:
It is essential that there be kept in mind the ever-true doctrine that the owner of property doas have some inalienable rights. A corollary of this doctrine is that it is the duty of the lawyer to fight for the preservation of such rights and not to permit overly zealous zoning experts who draft ordinances nor obliging Councils who pass them, to promulgate legislation which is unreasonable or which unlawfully tends toward the divestment of the property owners’ constitutional rights.
See James Metzenbaum, The History of Zoning – A Thumbnail Sketch, 9 W. Res. L. Rev. 36, 42 (1957).
So here’s how we see it: go ahead and zone, government. But it’s gotta make actual sense (Nectow). And even if it does makes sense but nonetheless deprives the property owner of essential rights, you have to pay for the privilege (Mahon).
Oh no, you say, if we revive Nectow‘s recognition of restraints on the police power what shall become of zoning? It doesn’t mean the end, only a reasonable limits, bounded by property rights. You know what term is in the Constitution? “Private property.” And what term isn’t? “Police power.” Sure, the term, like element domain, is inherent, we suppose. But aren’t we more concerned with protecting an individual’s freedom to choose how to use her property, unless there’s some articulable harm that can be shown, and not presumed?
And rest easy: zoning isn’t the be-all-end-all of municipal land use regulation. Especially when properly constrained by the Constitution. Professor Siegan’s seminal book explains why.
So Happy Birthday, Nectow. Ninety-six years young and looking better each day!
