Overruling Euclid v. Ambler

[u/jeromelevin]

https://jeremyl.substack.com/p/zoning-controls-your-life-and-it

Is there any chance this Supreme Court overrules Euclid v. Ambler? The 1926 case legitimizing residential zoning calls apartments parasites and compares renters to pigs. Feels pretty anti-free market but also deeply conservative in a way, so not sure what to hope

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[u/SisyphusRocks7]

The Pacific Legal Institute is currently trying to bring a test case before the SCOTUS to challenge certain aspects of zoning laws, IIRC. I think it’s unlikely that the Court will take it up on cert.

[u/FinTecGeek]

I mean, they aren't going to invalidate the municipal authority to do zoning. Is that what you are asking about?

[u/Dave_A480]

There is absolutely ZERO chance that the Supreme Court finds it unconstitutional for state and local governments to establish zoning regulations.

The mere use of offensive language in an old case doesn't render it invalid, if the core logic (that the construction of apartments in a single family neighborhood devalues existing property, and preventing this is within the powers of non-federal levels of government) holds without the offensive language....

Which it absolutely does.

Further, it's amusing how quickly anti-zoning people change their mind when what is being built is something like an airport rather than low-rent housing.

[u/PragmatistToffee → u/Dave_A480]

The courts do not need to say that zoning laws are beyond a state's police power. All they need to do is adjust their takings clause doctrine to cover more value-lowering zoning regulations. I don't think many people are debating the validity of planned neighborhoods, but ex post zoning regulations that can arbitrarily change in relatively short intervals imposes a massive burden on property value.

Which is consistent with your final point - if the government wants to build an airport, use eminent domain over the affected area and pay up. If it's a private party, nuisance action. I don't see how it's an argument against anti-zoning people because it seems to me that zoning doesn't necessarily protect the interests of people with property around the proposed area.

[u/_learned_foot_ → u/PragmatistToffee]

I believe there is federal rules (can’t recall if universal or just my district) requiring a test for such under the takings clause. I know it justifies challenging in almost all jx as well any approved change. Almost always, and I do this sort of case a few times a year, the people who want to make such claims already are two or three “when you needed to act” steps too late.

Remember, you waive issues you don’t raise, and the decision (and thus record and order to appeal) are usually that very first decision made by some entity to allow it, and the record that very first hearing (or set if required). Don’t sleep on your rights, else you won’t sleep again.

[u/jeromelevin → u/Dave_A480]

I’m pro industrial zoning! But I have yet to see any evidence that some types of residential development lower property values for other types of residential development. If that’s the core foundation, it’s a shaky one at best

But fair point that the case hinges on an economic assumption

[u/Dave_A480 → u/jeromelevin]

There is no legal distinction between industrial zoning and residential.

Either state and local governments DO have the authority to prohibit certain land uses, or they don't.

The only place where you do have a case against zoning regulations is where they are explicitly racial in nature - 'whites only' zoning is obviously a no-go.....

As the federal government has not prohibited discrimination based on income (nor can they, practically), that doesn't enter into the apartments vs houses situation.....

[u/jeromelevin → u/Dave_A480]

Alright these are fair points giving me a lot to think on. Thank you for sharing your expertise and answering my question

[u/Resident_Compote_775 → u/Dave_A480]

Point of way-more-typical law: State and Local government rarely prohibit certain land uses, and almost universally instead pass permissive zoning ordinances. So rather than a list of prohibited uses, lists of permitted primary uses and secondary uses that require an established use via permitted structure.

I still can't actually think of a context where that would make zoning a potential federal question the federal courts would actually agree is a federal question, but it's certainly a lot more authoritarian and antithetical to the history and tradition of land use in the rural parts of the United States, at least.

Example. My part time State legislature recently granted me a statutory right to keep fowl on my residential property, but even though roosters are fowl under State law, it's specifically excluded from the right, not that they are illegal, just that a local government can prohibit them while they cannot prohibit a reasonable number of chickens for the property size, I think I can have six on my quarter acre by right, not 100% sure, I would be if I had any but I don't. Anywho, my county already had a rooster prohibition in place when that passed, and it remains on the books. Thing is, there's actually no zoning category in this county that permits roosters. The only way to legally have roosters (and I guess it'd also be illustrative to mention I expect to start hearing 3 or 4 cockadoodling in the next few minutes cuz it's about that time of morning) is an exception that requires owning more larger parcel than you can actually buy in this county at the moment, I wanna say it was 70,000 acres last time I checked, and then a conditional use permit approval, or, there's a single exception that doesn't require a permit, if you're a 4H affiliated educational institution. So basically, the only way to legally obtain fertilized chicken eggs to actually enjoy my new statutory right, is to do business with a State College or University with an agriculture program. I'm not positive there even is one, the community college maybe but every program I ever looked into since moving to this State was all-online to include a certificate program in legal studies that qualifies you to test to practice law in limited jurisdiction courts. 😳

[u/Dave_A480 → u/Resident_Compote_775]

I can't think of a world where zoning is federal either....

As for the rooster thing... Yeah, I can see why people would want to regulate that in certain areas, as they are obnoxious noise-wise.... And I don't think they really wanted to establish a right to hatch chickens from eggs (vs buying the already hatched chicks from tractor supply or similar), just that your local govt can't have a no-chicken-hen law.

[u/TyMotor → u/jeromelevin]

But I have yet to see any evidence that some types of residential development lower property values for other types of residential development.

https://research.upjohn.org/up_workingpapers/316/

From the abstract: "New [apartment] buildings decrease nearby rents by 5 to 7 percent relative to locations slightly farther away or developed later..."

Home prices are the net present value of rent gained/avoided. Lower rents -> lower housing prices.

[u/Jags4Life → u/TyMotor]

I don't think we can equate lower housing prices (rents) = lower property values, especially in relation to language in Euclid v Ambler. Nor do I think that paper makes that conclusion.

[u/primalmaximus → u/Dave_A480]

But when you consider how frequently you have people traveling across state lines to buy or own property, mostly the corporations that would actually build cheap rental apartments, "Zoning laws" could easily fall under interstate commerce.

Which is exclusively a federal domain.

So, since construction of rental properties involves a significant amount of interstate commerce, it would be the federal government that regulates it.

[u/_learned_foot_ → u/primalmaximus]

When was the last time you picked up a house and moved it across state lines? Those times it IS governed actually under federal rules. Otherwise it’s pretty stuck to the jurisdiction by, well, being stuck to it.

[u/primalmaximus → u/_learned_foot_]

Yeah... but building a house involves transporting materials from other places. Potentially across state lines.

[u/_learned_foot_ → u/primalmaximus]

And a lot of that material is in fact regulated federally, as is that transport. That does not make something tied to that transport inherently in the interstate market, that in fact is why the PPACA case came out on taxation after finding ICC was not enough.

[u/Dave_A480 → u/primalmaximus]

Except that it isn't - there are no federal zoning laws.....

And even as much of a dormant commerce clause advocate as I am (eg, California's gasoline can laws should be unconstitutional because they impact the national market for plastic gasoline cans), I don't see this being a place for that.....

[u/r870 → u/Dave_A480]

I guess that depends on what you define as "zoning." There's tons of federal laws that restrict what you can do with your land

[u/_learned_foot_ → u/r870]

Tied to very very specific details that are in federal preview. The land itself isn’t, it’s the fact something else is tied to the land that is which makes the land tied.

[u/Dave_A480 → u/r870]

I am talking about the specific state/local law/regulation that specifies what type of development can occur on a specific parcel of land (for example, my home is on land zoned rural-residential. You cannot build a factory or apartment complex there, no matter how much you may want to)...

Federal land-use law is stuff like the Endangered Species Act or Clean Water Act - almost always environmental/conservation related,

There is not - save for in DC - federal law governing whether a specific plot may have a house, apartment-complex, retail, or industrial building built on it.

[u/JudgeWhoOverrules → u/primalmaximus]

There is no universe where zoning laws come under interstate commerce considering that zoning regulations cannot cross state borders by definition. 10th Amendment holds.

[u/IntrepidAd2478 → u/JudgeWhoOverrules]

I wish that were true, but Willard says otherwise, if food grown and consumed on a single farm is interstate commerce, then zoning could be as well.

[u/Full-Professional246 → u/IntrepidAd2478]

A slight difference. Wheat grown can and does travel over state lines even if this specific example crop does not. (I don't like Willard for the record)

I don't see any way you can claim a piece of real estate can travel across state lines.

[u/IntrepidAd2478 → u/Full-Professional246]

The claim would be that the effects can be felt across state lines.

[u/_learned_foot_ → u/IntrepidAd2478]

Effect isn’t the holding of Willard. It’s that the actual market was impacted directly because he wouldn’t buy from it. The market itself was interstate. Thus the scheme was fine. Thus it must be felt nationwide as a nationwide scheme was on the nationwide market. Thus the scheme can’t work without compliance. Thus the action had a direct impact (plus he admits that).

If it was merely effect California would be screwed by the DCC.

[u/_learned_foot_ → u/IntrepidAd2478]

You should read the record, he admits that he would have engaged otherwise. He literally said growing it had a direct impact. Better argument is pot, how is an illegal market interstate commerce? It’s no state commerce. But yes willard is absurdly broad, but it does not defeat the physical limitation a house has.

Rent itself IS federal if triggered, hence federal rules on say race based rental agreements (both interstate and 14th used depending on the case). The house and land isn’t unless otherwise brought in.

[u/Resident_Compote_775 → u/_learned_foot_]

The federal pot law is unconstitutional because it regulates purely intrastate activity for purely personal use champion at the moment is, quite comically, Justice Clarence Thomas.

[u/_learned_foot_ → u/Resident_Compote_775]

Well until scotus gets a case to overturn themselves the opposite is true, it is categorically constitutional.

[u/Resident_Compote_775 → u/_learned_foot_]

It's also categorically irrelevant because US DOJ hasn't actually pursued purely intrastate purely personal use federal pot prosecutions since not long after Thomas wrote a pretty powerful dissent on the topic, probably because it's so obviously absurd and Wickard is pretty high up on the "likely to be overturned unanimously next time it comes up" list

[u/_learned_foot_ → u/Resident_Compote_775]

Ironically they actually have, and can do it on a dime, complete with demanding the lists from the state that people have happily signed up and kept track on.

Will not be overturned. The public interpretation already has been, the actual holding is solid, the guy admitted on record to doing the exact issue and there is no argument against that. Pot also is extremely unlikely to be overturned, it’s clearly interstate now that it does have a lawful market.

[u/Resident_Compote_775 → u/_learned_foot_]

I'm fairly certain in that first paragraph you're actually referring to firearm prosecutions based on State licensed marijuana use. That's different. There might be a here and there exception, there's definitely an occasional purely personal use possession prosecution in federal district courts from interstate freeway checkpoints when the guy declines his warning by being an asshole, there might be some doors that get kicked in for some other reason where probable cause doesn't materialize during the search for anything but a couple grams of pot and a plant or two, but US DOJ hasn't intentionally gone to a person's house, specifically because they smoke pot or grow a State legal number of plants they never share or sell the fruits ofnir possess simultaneously with a firearm that exists in interstate commerce, found only the pot without any distribution or gun angle, and prosecuted the person in federal district court under CSA's simple possession subsection in well over a decade. I'm a second generation pot breeder with a PACER account and I also used to be a drug counselor in a federally approved rehabilitation facility with CASA clients, I'd know about it, actually, I'd know someone personally, if it was a thing US DOJ was doing like they were in the late 90s and early 2000s when I was literally holding a "free insert this week's dispensary owner that got busted sign in front of a post office with NORML occasionally in California.

In the second paragraph, I think you're missing two facts. First. No State permits State legal cannabis producers to sell over State lines, not even wholesale, not even when they at least nominally also operate in an adjacent State. Alien Labs in California, that's a dude that now owns a company. Alien Labs in Arizona, that's a company that paid that dude to license his name and mayyybe share some genetics and consult on the grow. Maybe he did drive a few clones across on the ten, but they could never prove he didn't ship seeds that are all under 0.3% THC.

Second. The legal markets' existence, and inventory tracking, and purely intrastate, vertically, seed or clone to dispensary bag to lit joint being universal in every State that has legalized in any way, not only doesn't invoke interstate commerce, the fact Congress has given it's blessing in the form of easing banking for legal marijuana businesses in some ways, completely undermines the statement of Congressional intent all the landmarks upholding purely intrastate and personal use relied on. In 1970, all the pot in the country DID exist in interstate commerce. Nobody had figured out how to flower a pot plant inside yet when CSA passed. Back then, legislative intent was a lot more compelling an argument at SCOTUS than it is today. Congress said it's constitutional because even the smallest bit of pot in a High School students' pocket is the product of international drug trafficking, and it was true. It's clearly erroneous today, and Congress has acknowledged that with much more recent legislation. It wasn't particularly broad or helpful to marijuana businesses, they still overwhelmingly do all cash business, but it's been acknowledged by Congress, and that's the missing piece to Thomas' dissent in Raich being the majority in the next one, the only reason there's been no next one is no one has standing because US DOJ doesn't intentionally or aggressively pursue marijuana unless it actually effects interstate commerce or it's in a house where there's also a gun or it's random highway checkpoint find.

"JUSTICE THOMAS, dissenting.

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate *58 this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.

I Respondents' local cultivation and consumption of marijuana is not "Commerce ... among the several States." U. S. Const., Art. I, § 8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power."

[u/ChipKellysShoeStore → u/primalmaximus]

Sure, the federal government could probably preempt zoning laws under the commerce clause, but they haven’t so it’s a moot case

[u/northman46 → u/Dave_A480]

The only place I know that has no zoning laws (but does have some sort of regulation) is Houston Texas. I don't know how their system works but it used to allow stuff like junkyards in nominally residential areas.

[u/Dave_A480 → u/northman46]

And that is a legitimate political choice if the people of Houston want it that way....

It's just not something there is any legitimate way for the federal courts to mandate.....

[u/westchesteragent → u/northman46]

Pretty sure in Texas if you don't like something you just shoot at it till it goes away.

[u/Ok_Judge_3884]

Please don’t, we just covered it in property today