Euclid Lives? The Uneasy Legacy of Progressivism in Zoning

Abstract

This article responds to Euclid Lives: The Survival of Progressive Jurisprudence, by Charles Haar and Michael Allan Wolf, 115 Harv. L. Rev. 2158 (2002). In Euclid, Haar and Wolf praise a series of Progressive legal principles, most often associated with zoning and Euclid v. Ambler Realty Co., and then use those arguments to criticize recent developments in constitutional regulatory-takings law. This article examines whether these Progressive arguments do enough conceptual work to justify zoning. It concludes they do not.

Instead, the article suggests that zoning and the Progressive legal principles associated with it are better understood as a practical application of general principles of Progressive political theory. To demonstrate, it interprets speeches and writings by the reformers most influential in instituting zoning - books advocating zoning, the first wave of zoning treatises, and the proceedings of the annual National Conference of City Planning. These materials defended zoning on more explicitly political, organic, and Progressive grounds. Read as a whole, these materials place faith in strong communities, local moral formation, and an organic conception of changing societal values. Many of the key institutional features of Euclidean zoning follow from these core beliefs - the commitment to homogeneous neighborhoods, stable home values, neighborhood aesthetics, centralized pre-use planning, and administration by urban-planning experts.

This connection to Progressive political theory offers several lessons. First, it provides a more thorough and better-integrated theory of law and politics for zoning than one sees in conventional land-use scholarship like Haar and Wolf's. Second, it helps clarify the normative debate over zoning. It suggests that many of the most controversial debates about zoning relate back at least in part to zoning's Progressive conception of the public interest. That conception encourages strong local communities, but it also encourages the tendencies that local majorities sometimes use to prop up home prices, exclude outsiders on the basis of race or class, or stage not in my backyard! campaigns. In short, Progressive political theory identifies the bitter and the sweet in zoning more clearly than conventional land-use scholarship, and suggests that scholars who like the sweet had better be prepared to swallow the bitter.

Keywords: Progressive, zoning, Euclid, property, land use regulation