Questions I Wish I Had Never Asked: The Burger Court in Exclusionary Zoning 11 Southwestern University Law Review 1979

11 Sw. U. L. Rev. 509 (1979)
Questions I Wish I Had Never Asked: The Burger Court in Exclusionary Zoning

handle is hein.journals/swulr11 and id is 521 raw text is: QUESTIONS I WISH I HAD NEVER
ASKED: THE BURGER COURT IN
EXCLUSIONARY ZONING
Lawrence G. Sager*
I. INTRODUCTION
In an article published in 1969,' I urged the Supreme Court to
return to a consideration of the constitutional implications of local zon-
ing,2 a field which the Court had left virtually untouched for more than
* Professor of Law, New York University; B.A., Pomona College, 1963; LL.B., Columbia
University, 1966.
I. Sager, Tight Little Islands.- Exclusionary Zoning, Equal Protection, and the Indigent, 21
STAN. L. REV. 767 (1969).
2. The Court began grappling with local land use regulation late in the nineteenth century,
long before it had to deal with its first comprehensive zoning statute. Barbier v. Connolly, 113
U.S. 27 (1884), marked the beginning of this line of cases, with the Court foreshadowing much of
its later decisionmaking in the area by broadly validating San Francisco's deployment of the
state's police power. The ordinance at issue in Barbier restricted the hours during which laundries
in certain areas could operate. In rejecting plaintiffs due process and equal protection claims, the
Court declared that since no invidious discrimination against plaintiff was evident, any further
judicial inquiry would be an extraordinary usurpation of the authority of a municipality ....
Id at 30. In the following year, the discrimination missing in Barbier was found in Yick Wo v.
Hopkins, 118 U.S. 356 (1886). Yick Wo involved a San Francisco ordinance which required a
supervisor's approval in order to operate a laundry in a building not made of brick or stone. In
the face of clear evidence that the regulation was being enforced solely against Chinese laun-
drymen, the Court declared the ordinance violative of equal protection. Explicit racial discrimi-
nation was at issue in Buchanan v. Warley, 245 U.S. 60, 70-72 (1917), which involved a Louisville
ordinance prohibiting blacks from living on blocks composed primarily of whites, and vice versa.
Insisting that the prohibition infringed upon a due process property fight, which had not been
implicated in cases such as Plessy v. Ferguson, 163 U.S. 537 (1896), the Buchanan Court refused to
accept as justification such governmental ends as the reduction of potential race conflicts. 245
U.S. at 79-81.
In the absence of the gross discrimination characterized by Yick Wo and Buchanan, the
Court's policy remained one of broad deference to local government in questions of land use. In
Hadacheck v. Sebastian, 239 U.S. 394 (1915), the majority sustained a Los Angeles ordinance
which banned absolutely the use of brick kilns in a specified and arguably arbitrarily defined area
of the city. In Thomas Cusack Co. v. City of Chicago, 242 U.S. 526 (1917), the Court upheld an
ordinance which prohibited the erection of billboards on any block unless the majority of nearby
property owners gave their consent, despite the earlier invalidation of an ordinance permitting
those who owned two-thirds of the streetfront property to establish a building line on their side of

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

What Is HeinOnline?

Purchase Access

Contact Us

Log In

NEED HELP?

CONTACT US

Get started

Subscribe to our Newsletter