Synopsis: Low-density, large-lot residential zoning of more than three acres perpetuates economic and racial inequality, constrains housing supply and housing markets, and makes housing costs unaffordable. It covers much of suburban America, contributing to a litany of harms in our housing system, but it has survived judicial challenges with few exceptions. This Article considers the judicial treatment of large-lot residential zoning and suggests how it can be reformed.
A common zoning feature restriction in the United States perpetuates economic and racial inequality, constrains housing supply, and makes housing costs unaffordable. Low-density, large-lot residential zoning (“Large-Lot Zoning”) does all this, and yet it remains ubiquitous across the country. Because Large-Lot Zoning contributes to a litany of harms in our housing system and because its costs outweigh its plausible benefits, the question is: why does it persist and how can we rid ourselves of it?
Although exclusionary zoning recently has come under fire, scant attention has been paid to Large-Lot Zoning and the damage it does to housing markets. This Article zeroes in on the tragedy of Large-Lot Zoning in the American suburbs and recommends needed reform.
Part I discusses the legal and social origins of Large-Lot Zoning and its many adverse social impacts, intended and inadvertent. Part II explores the economic and environmental impacts of Large-Lot Zoning as well as its assumed justifications. Part III considers the path to reform.
“Exclusionary zoning is traditionally discussed in terms of minimum lot requirements, crafted to create economically homogenous suburban communities.” Minimum lot requirements have been called the dominant form of residential exclusion, and they attract local political support as an effective way to stop housing development. Large-Lot Zoning is low-density residential zoning. There is no consensus on the density at which low-density residential zoning becomes Large-Lot Zoning, but there is support for one-acre residential density as the breakpoint after which Large-Lot Zoning begins.
Large-Lot Zoning is a suburban exclusionary zoning problem. The problem is made worse because two-thirds of the population lives in the suburbs, the share of the population living in the suburbs increased significantly in recent decades, and a majority of the Black, Hispanic, and Asian population lives in the suburbs. The average Black and Hispanic households earn about half as much as the average white household and own only about 15 to 20% as much net wealth. Lower incomes and lower net wealth give exclusionary Large-Lot Zoning a more negative effect on Black and Hispanic housing availability than it does on white housing availability.
Limiting the minimum density of residential lots defines Large-Lot Zoning, but the acceptable size of minimum-density lots has received little judicial attention. In an early Massachusetts case, without supporting evidence, the court relied on the dubious benefits of density minimums to uphold a one-acre minimum lot size. These benefits included freedom from noise and traffic, a reduction in danger from fire from outside sources, a better opportunity for rest and relaxation, and greater facilities for children to play on the premises and not in the streets. In a later Massachusetts case, the court held that “the law of diminishing returns will set in at some point,” and rejected a 2.35-acre minimum lot size. A Pennsylvania court similarly held that a point comes when the size of lots “ceases to be a concern” because they become simply a matter of private preference, that this point varies with the land and the circumstances of each case, and that a four-acre lot requirement was invalid. The cases do not explain when this point comes.
Large-Lot Zoning covers large areas and reinforces the exclusionary and racially motivated purposes of exclusive single-family zoning. A survey of over 29,000 municipalities across the United States found that 39% had extremely high minimum lot areas of more than one acre in at least one district. Neighborhoods with high minimum lot areas accounted “for 40% of the residential land and 16% of existing single-family homes.” Another national survey from 2006 to 2018 found that communities that raised their largest minimum lot size were double those that lowered them. And an extensive national study of land use regulations found that low-density-only municipalities account for 19% of metropolitan land areas.
Regions vary. Northeastern metropolitan areas are the most restrictive and most likely have Large-Lot Zoning. A 2023 statewide study of zoning in Connecticut found that Large-Lot Zoning was a dominant presence in zoning districts. Eighty-one percent of the state in both residential and nonresidential areas required lots that exceeded 0.92 acres, while 49% of the state required lots that exceeded 1.84 acres for single-family housing.
Statutory authority for zoning is modeled on the facially neutral Standard State Enabling Act proposed by the U.S. Department of Commerce in 1926, which many states adopted. The Act neither expressly prohibits nor requires exclusionary zoning. Rather, it delegates zoning authority to local governments and authorizes them to adopt zoning districts. This delegation of zoning authority is broad and unencumbered by criteria for the adoption of zoning ordinances or significant guidance on their scope and content. Local governments are thus empowered to adopt zoning ordinances that create adverse social impacts. For example, the 1926 model zoning act allows a municipality to adopt zoning ordinances that create racial segregation.
Legislative freedom to impose land use restrictions was intentional and may have been racially motivated. Early zoning ordinances that explicitly separated populations by race were declared unconstitutional by the Supreme Court in 1917 in the case of Buchanan v. Warley. Shortly after the Buchanan decision, then-Secretary of Commerce Herbert Hoover appointed an Advisory Committee on Zoning that drafted the Standard State Zoning Enabling Act. Members of the Advisory Committee were outspoken segregationists. Although the Supreme Court proscribed expressly racial zoning, it did not outlaw zoning that created racially disparate impacts that cemented the geography of segregation. Zoning quickly evolved to include such impacts.
In a leading 1926 U.S. Supreme Court case, Village of Euclid v. Ambler Realty, the Court upheld exclusive single-family residential zoning on a major thoroughfare in a Cleveland suburb. Racially inspired ordinances in the Cleveland area and elsewhere provided a model for the ordinance, and even its draftsman admitted it was arbitrary. Justice Sutherland, a conservative Justice, applied rational basis judicial review to hold the ordinance constitutional. He explained that “the common law of nuisance may be consulted, not for the purpose of controlling, but for the helpful aid of its analogies in the process of ascertaining the scope of the power,” and he added that “[t]he crux of the more recent zoning legislation,” which was the creation of exclusive residential districts, was the “serious question” in the case.
In a famous and much-quoted phrase, Justice Sutherland upheld the exclusion of apartments from single-family residential districts. They were a “mere parasite, constructed to take advantage of the open spaces and attractive surroundings created by the residential character of the district.” They “greatly retarded” and “destroyed” residential areas, interfering “by their height and bulk with the free circulation of air and monopolizing the rays of the sun,” and “come very near to being nuisances.”As Professor Adams-Schoen explains, “Euclid’s minimum rationality standard greenlit widespread adoption of the barely veiled racial zoning promoted nationally by prominent zoning advocates and white supremacists.”
The judicial response to Large-Lot Zoning in the state courts occurs in litigation in which a landowner challenges a Large-Lot Zoning restriction, and a deferential standard of judicial review protects Large-Lot Zoning in most courts. It presumes that a zoning ordinance is constitutional, that the party challenging an ordinance has the burden of showing that the ordinance is not rationally related to a legitimate governmental interest, or that the ordinance is an unreasonable means of advancing that interest. A court must decide that the ordinance attacked is arbitrary and that there is no room for a legitimate difference of opinion concerning its reasonableness.
The Massachusetts court takes the opposite view by shifting the burden to the government by giving it the burden of proof to uphold Large-Lot Zoning. “A municipality’s reliance on generalities concerning the public benefit of Large-Lot Zoning will not carry the day,” and the government has the burden of coming forward with something tangible to justify its zoning restriction. This decision has the welcome effect of a presumption reversal.
Statutory authority for Large-Lot Zoning is one issue the courts have considered, but they hold that the zoning purposes authorized by state zoning legislation authorize Large-Lot Zoning. Taking of property is another issue, but the courts do not usually find a taking because a decrease in a landowner’s property value and her inability to put a property to its most profitable use is not enough. Whether Large-Lot Zoning complies with a municipality’s comprehensive plan can create a problem, but the problem is curable by a plan revision.
The issue most litigated is whether the purposes served by Large-Lot Zoning satisfy constitutional substantive due process. These purposes are vague, judicial consideration is disorganized, and the courts do not provide a logical explanation for why these purposes are selected or why they are relevant. The courts reject Large-Lot Zoning when a municipality does not provide a legitimate or any reason for adopting it. They have not considered the damaging effects of Large-Lot Zoning on housing markets.
Large-Lot Zoning aggravates social and racial segregation in the zoning system in which the Large-Lot Zoning is embedded. As one observer explains, “Prior to the mid-20th century, social segregation was a principal and often explicit goal of land use zoning schemes,” and is part of an exclusionary system now that keeps lower-income households from finding adequate housing by separating multi-family from single-family housing.
Racism is deep-seated. Several cities in the early twentieth century adopted explicit racially exclusionary zoning, which the Supreme Court ended in 1917 in Buchanan v. Warley. Cities avoided the Buchanan decision by adopting class-based zoning motivated by a desire to maintain neighborhood racial demographics that included minimum lot size requirements, the exclusion of multi-family dwellings, and other exclusionary requirements. A white supremacist structure supported by an accommodating statutory framework dominates land use regulation as “the strict residential use taxonomy and related land use regulations successfully segregated most US cities by race.” “[S]ubstantial levels of neighborhood segregation persist for Black residents and—to a sizable, though lesser extent—for Latino or Hispanic and Asian Americans.”
The Saint Louis, Missouri suburbs are an example, where a study found that “[s]egregation was abetted by local zoning.” Exclusionary zoning emerged as the dominant pattern by the mid-twentieth century. It ensured “a pattern of predominantly low-density, single-family settlement” through a combination of restrictions including prohibitions on manufactured housing, refusal to zone land for multifamily housing, and area and density standards such as lot size requirements, setbacks, and building size. Another Saint Louis study found that an inner suburb used zoning and other strategies to eliminate an African-American settlement that predated incorporation. Boston is another example of zoning for race, class, and family exclusion.
This historic trend continues. One study found that cities that were whiter than their metropolitan area in 1970 had significantly more restrictive land use regimes in 2006. Restrictive land use regulations found more support in white neighborhoods.
Minimum lot size causes social segregation. A Wake County, North Carolina study found that minimum lot size sorts households by income into differently regulated neighborhoods. A density decrease of one dwelling unit per acre increases average neighborhood income by 4.5%. Lots on average are 19% larger and houses are 7.5% more expensive where residential densities are lower.
Another study of density restrictions in large metropolitan areas found that they increased the average price of units in affluent neighborhoods, which excluded lower-income people by prohibiting high-density, multi-family housing. Less segregation occurred at higher densities. Another study found that density restrictions are associated with higher-income segregation but appear to segregate affluent households, not poor households.
Social segregation by income is indefensible. Income diversity is essential in local economies, and segregated concentrations of poverty and wealth create unequal access to jobs and schools, unsafe neighborhoods, and negative life outcomes for low-income households.
Numerous studies find that low residential densities cause racial segregation. One study estimated minimum lot area requirements for over 16,000 municipalities across the United States that covered a universe of urban and suburban communities. It found that white households are far more likely to buy homes in neighborhoods with large minimum lot areas.
Another study surveyed 49 metropolitan areas with about 56% of the country’s population. Using density categories from less than four units per acre to 16–30 units per acre, it found “that restrictive density zoning produces higher housing prices in white areas and limits opportunities for people with modest incomes to leave segregated areas, a perspective in accordance with a great deal of research.” A metropolitan area’s relative openness to housing construction, as indicated by residential density, strongly predicted Black segregation and isolation; the greater the allowable density, the lower the level of racial segregation. Other studies reached similar conclusions.
Racial segregation caused by Large-Lot Zoning can violate the federal Fair Housing Act. The Act provides that “it shall be unlawful to . . . make unavailable or deny . . . a dwelling to any person because of race, color, religion, sex, . . . or national origin.” It does not mention zoning, but the courts hold that racial discrimination by zoning violates the act because it makes housing “unavailable.”
In Texas Department of Housing & Community Affairs. v. Inclusive Communities Project, Inc., the Supreme Court held that racially discriminatory impact is enough to violate the federal Fair Housing Act. Inclusive Communities means that Large-Lot Zoning can violate the Fair Housing Act because it has a racially discriminatory impact. Justice Kennedy’s remand, however, added dicta that provide defenses to liability. “Valid governmental and private priorities,” he held, must not be displaced, and defendants in fair housing cases must be able to “state and explain the valid interest served by their policies.” He explained that zoning officials must often make decisions based on an objective and subjective “mix of factors,” which are “legitimate concerns,” and that the Act includes “[a] robust causality requirement.”
A dictum in Inclusive Communities indicates that Large-Lot Zoning can violate the Fair Housing Act. The Court said that “unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification. Suits targeting such practices reside at the heartland of disparate-impact liability.” Large-Lot Zoning excludes minorities from certain neighborhoods without sufficient justification.
Courts since Inclusive Communities have held that restrictive zoning violates the Fair Housing Act if it disparately affects minorities. The Second Circuit, for example, held that a county’s refusal to adopt rezoning for a 300-unit, mixed-income development where several minorities would likely be tenants created a disparate racial impact when the county adopted single-family and town housing zoning as an alternative. This decision could apply if a municipality refuses to replace low-density with higher-density zoning.
Character of the area is another factor courts consider. Using character as the basis for upholding Large-Lot Zoning ratifies exclusion when the character of an area consists of low-density zoning that has serious supply and price effects. In one case, a court upheld a five-acre “estate district” for “substantial” people of “more than ample” financial resources. It used as excuses that it covered only 6.7% of a small county expected to grow only 25% in 10 years, and strong affirmative evidence that showed fair and reasonable provision for different kinds of required housing. Not all courts have been as agreeable. In another case a town threatened with rapid development increased minimum lot sizes from one to two acres, motivated by a demand to keep a rural community and keep undesirable businesses out.
Courts also uphold Large-Lot Zoning for a specific lot when they find that zoning protects the character of the area and property values. In Flora Realty & Investment Company v. City of Ladue, which is typical, the court blatantly upheld three-acre zoning in an affluent Saint Louis suburb where existing residential development near the zoned property was almost entirely on three acres or more. The court held that three acres were required because “the district cannot maintain its character if sections here and there are developed with smaller lots.” An intrusion of smaller lots into such an area would materially impair the value of buildings already constructed.
The “character” of an area is not a legitimate reason for Large-Lot Zoning. As a Harvard Law Review article explained: “[C]haracter” is an ambiguous self-defining term that can justify the use of Large-Lot Zoning for illegitimate zoning purposes. Social or economic stereotypes may subtly and incorrectly influence a community's self-definition, such as incorrect stereotypes about manufactured housing or the tendency to exaggerate the virtues of suburban life. Character can also be a pretext for racial discrimination. Character is a vague and ill-defined term that can justify zoning measures directed at locally unpopular groups or individuals or significantly injure people living outside the municipality. Giving a local majority limitless power to determine the character of a community may produce stifling and oppressive homogeneity.
Courts also uphold Large-Lot Zoning to protect “rural character,” to protect a “rural residential area,” to “maintain the natural and rural qualities of the land,” or to protect a “rural atmosphere.” A few courts rejected “rural community” or “rural character.” A stereotype like “rural character” is suspect. As Debra Lyn Bassett clearly explains, “The use of rural stereotypes in law tends to shortchange the review and determination of the facts, the depth and quality of the analysis, and the integrity of the conclusion.”
Alternatives exist for preserving rural character. Municipalities can include a “rural element” in their local comprehensive plans, a requirement included in the Washington State Growth Management Act. The Act provides guidance for the rural element. The Act provides, “The rural element shall include measures that apply to rural development and protect the rural character of the area, as established by the county.” The Act also provides that the rural element shall “provide for a variety of rural densities, uses, essential public facilities, and rural governmental services needed to serve the permitted densities and uses.”
All zoning is inherently exclusionary and limits the housing supply. Supply limitations generally drive prices up. Today, the nation faces a severe housing affordability crisis, making it increasingly difficult to justify exclusionary zoning practices and their inflationary effects. A substantial percentage of the population is severely burdened by housing costs, and this burden increased substantially in recent years.
Minimum lot size directly impacts the number of housing units that can be built in a given area, reducing the housing supply. Large-Lot Zoning therefore raises housing prices. A Greater Boston study found that minimum lot size had a robust negative effect on the number of buildings, which means that about 50% fewer building permits during the study period between 1980 and 2002 were associated with each extra acre per lot.
Large-Lot Zoning not only aggravates the inflationary effects of exclusionary zoning generally, but also causes lower-density development patterns with their harmful side effects. Large-Lot Zoning forces new housing development to expand ever outward, creating low-density sprawl. By decreasing the area available for new development, new housing development is forced into neighboring municipalities. Sprawl increases road, utility, and school construction and maintenance costs and therefore causes infrastructure costs to increase. It also increases air pollution and related health care costs by requiring more motor vehicle travel time. Courts have not considered the harmful costs of urban sprawl in Large-Lot Zoning cases.
Supply restrictions and low density make housing significantly more expensive. A national study of Large-Lot Zoning found that Large-Lot Zoning prices large segments of the population out of housing markets. Local studies confirm this finding. A Massachusetts study found that minimum lot restrictions have a significant impact economically and statistically and would raise house prices up to 20%, that this impact increases over time, and that intra-town and inter-town spillover effects existed.
The courts examined supply restrictions when they considered the constitutionality of a single Large-Lot Zoning restriction. Courts dismissed claims that a failure to provide lower-income housing violated equal protection or statutory requirements and claimed that Large-Lot Zoning in an area of rural character or a rural and agricultural land was exclusionary. They did not find Large-Lot Zoning unconstitutional when it did not exclude a reasonable amount of development and when housing needs were met or unaffected. Other courts found that Large-Lot Zoning was inimical to growth needs in the surrounding region or practically prevented people in low-income brackets from living in the western area of a county.
Studies find that housing supply increases when density increases. A counterfactual model of zoning reform in Connecticut halved minimum lot areas statewide and found that this reform increased the housing supply. A cross-city analysis of actual zoning reforms in 1136 cities in eight U.S. metropolitan regions from 2000 to 2019 that included low-density zoning found that increased housing density produced a statistically significant increase in housing supply as compared to cities that did not increase density. Another study found that easing land use restrictions on a broad scale generally leads to housing supply increases if demand exists.
Supply increases take time, however, and provide only a fraction of the housing capacity created because other factors also decide what gets built. Downward market filtering can help with this problem. Supply increases at the medium or higher end of the market over the longer run should increase supply in lower-priced markets because less valuable older units will find their way down to lower-priced submarkets.
Courts have given limited approval to Large-Lot Zoning for managing growth. Saint Louis County, Missouri adopted an interesting growth management experiment in the mid-1960s. It adopted a three-acre Non-Urban zone as a stopgap growth management measure “to guide and coordinate development in the unincorporated portions of St. Louis County to secure the appropriate development of the physical environment.” The county was able to use Non-Urban zoning to manage growth by rezoning to higher densities when rezoning met the growth management purposes of the ordinance, though adjoining residents often objected. Court decisions were mixed. The Non-Urban zone now permits uses such as group homes and schools, usually on lots of three or four acres, and single-family dwellings on lots of less than three acres.
Residential development requires an adequate water supply and sewage disposal, which can be provided by onsite wells and septic systems. They require a lot large enough to produce an adequate water supply and a septic system that does not endanger water sources. A consensus does not exist on the necessary lot size. Some municipalities require one acre, some 40,000 square feet, and some 20,000 or 22,500 square feet. One opinion suggests that one acre has replaced 20,000 square feet as the safe rule-of-thumb for local planners, and a court-approved one-acre zoning to prevent the use of more densely located septic systems. Courts also approved lots of more than one acre to provide enough land for an adequate water supply and to avoid water pollution from septic systems.
Notwithstanding these asserted justifications, Large-Lot Zoning is not required for onsite systems. Wells can fail or provide an inadequate water supply. Septic systems endanger ground and surface waters if not designed, installed, maintained, or used properly, and one study found a high failure rate for onsite septic systems. Courts should also reject Large-Lot Zoning for onsite systems when public water and sewage systems are available as a less environmentally dangerous alternative. The court in National Land & Investment Company v. Kohn rejected four-acre zoning because the township code provided for sanitary regulations and the installation and maintenance of sewer systems, although the township had not made plans for either and expected to rely on onsite systems. Developer-built water and sewage systems with offsite facilities are another option.
Large-Lot Zoning is needed for environmental and ecological preservation. Forest and mountain preservation zoning, which prevents the fragmentation of forest and mountain areas, is an example. The New Hampshire Supreme Court upheld a 50-acre lot minimum for a mountain and forest district because it encouraged the continuation of large tracts of forest land, encouraged forestry and timber harvesting, protected wildlife habitat and natural areas, and made forestry profitable. Large-Lot Zoning is not appropriate for environmental and ecological preservation, however, when Large-Lot Zoning is not an appropriate response to the environmental problems that they present, and when an alternative regulation can consider these problems.
Hillsides are an example. Land disturbance is a major issue on hillsides. Building structures create inherent problems because they inevitably create land disturbance by placing level structures on sloping surfaces. These structures experience a gravitational force that creates landslides through downhill movement. Uniform Large-Lot Zoning on hillsides does not remedy this problem. Slope/density regulation can remedy this problem by decreasing density as the slope increases. The Colorado court upheld a special hillside low-density residential zone that included an equation to calculate minimum lot sizes for different areas of steeply graded property.
Protecting groundwater and surface water sources from upland and adjacent stormwater pollution caused by development on impervious surfaces is another example. Large-Lot Zoning that uniformly reduces density throughout impervious surface areas is neither appropriate nor effective because surface water flows and groundwater tables vary significantly. The courts nevertheless uphold Large-Lot Zoning when Large-Lot Zoning is adopted for groundwater and surface water protection.
A water source protection ordinance is a substitute that is more effective and appropriate. It can include land use controls in overlay districts that require new development to minimize impervious or partially pervious surface coverage, direct stormwater away from surface waters, incorporate Best Management Practices (BMPs) to minimize water quality impacts, and minimize transport stormwater runoff by vegetated conveyances, and that include variable density limits.
Exclusive agricultural zoning, which some statutes authorize, is a widely accepted method for preserving agricultural land that can require low-density Large-Lot Zoning. Although their reasons vary, courts unanimously uphold Large-Lot Zoning for agricultural preservation because it protects agricultural character, the feasibility of farming, and the fragmentation of agricultural areas.
A Pennsylvania case is an example. The court upheld 50-acre agricultural zoning because the size of farmland tracts is directly related to the economic viability of farming operations that use modern machinery, soil conservation, and the ability to dispose of agricultural byproducts. Soils require strip cropping or contour farming, diversion terraces and ditches, and remedies for erosion problems, which are more easily done on larger agricultural tracts.
There are limitations. Courts reject Large-Lot Zoning for agricultural preservation if Large-Lot Zoning is applied to an area that is not suitable for agriculture, if the agricultural use restrictions are arbitrary, if agricultural zoning is exclusionary, or if it does not balance the need for reasonable growth and agricultural uses, a limitation that can prevent the use of agricultural zoning to create urban sprawl.
The judicial response to Large-Lot Zoning requires reform because the reasons for accepting Large-Lot Zoning, with a few exceptions, are unacceptable. There are several possibilities. One important possibility is for courts to reject these reasons except when Large-Lot Zoning is appropriately used for agricultural, environmental, or ecological protection. “Character of the area,” for example, is not an acceptable reason for upholding Large-Lot Zoning.
A judicial presumption that Large-Lot Zoning is unconstitutional is another possibility. I have argued with Professor Dan Tarlock that courts should consider a presumption against constitutionality because judicial concern reflects increasing public unease with processes and results in the land use system. One example is that “[l]ocal units of government possess . . . the power . . . to do great mischief by distorting regional social inequities and by shifting spillovers from one jurisdiction to another.” Exclusionary zoning, including Large-Lot Zoning, can do great mischief. Reversing the presumption of constitutionality reverses the burden on a municipality to show it has not adopted restrictions that distort regional social inequities or shift spillovers.
Political malfunction that dominates local decision-making is another reason for shifting the presumption of constitutionality. Political malfunction occurs when a dominant homogenous group in a community supports legislation that does not represent the pluralist character of the larger metropolitan area. Large-Lot Zoning can create an environment for political malfunction. It can create a municipality dominated by a homogenous affluent group that can obtain the adoption of restrictive regulation by the local legislative body that does not represent the pluralist character of the larger metropolitan area. Shifting the presumption of constitutionality will again shift the burden to the municipality to show that political malfunction has not distorted the local legislative process.
Courts should refuse to approve Large-Lot Zoning when a less restrictive alternative is available, such as public services as an alternative to onsite water and sewer systems. Courts adopted this rule in free speech cases when they held that free speech law requires a less restrictive alternative to content-based speech. Free speech is a fundamental constitutional right, and courts adopted the least restrictive alternative rule to protect this right. Zoning is not a fundamental constitutional right, but the importance of fair and reasonable zoning also requires the adoption of the least restrictive alternative rule.
Reform must address procedural difficulties in Large-Lot Zoning litigation. Litigation is limited to the landowner and the municipality because courts do not give standing to third parties, who are more likely to introduce wider public interest concerns such as the effect of Large-Lot Zoning on housing markets. Potential residential developers and homebuyers who are excluded from housing markets by Large-Lot Zoning and neighboring municipalities damaged by spillover effects are third-party beneficiaries who will benefit when Large-Lot Zoning is held invalid. They rarely appear in the case law because they do not have standing but may be affected more severely by Large-Lot Zoning restrictions. Legislation and judicial decisions can remedy this problem by granting standing to third parties to intervene in litigation so that they can produce evidence and argue for issues that are relevant to their interests.
Litigation is imperfect even if courts correct procedural problems. If a court holds a Large-Lot Zoning density restriction unconstitutional, a municipality can adopt a residential density that is marginally higher than the density held unconstitutional but that still blocks the landowner’s development. A court will not provide mandatory relief for the landowner that requires a municipality to adopt a density that will allow his develop-ment. The landowner can bring successive lawsuits to force a municipality eventually to adopt an acceptable density, but this strategy is costly, time-consuming, and may not be effective. Most municipalities also have Large-Lot Zoning at more than one density level, so that successful litigation against one low residential density will leave other low residential densities unaffected.
Judicial reform of Large-Lot Zoning requires a bright line rule that eliminates the problems of case-by-case litigation. Legislation at the state and local levels should adopt a minimum density cap for Large-Lot Zoning, except when low densities for agricultural, environmental, and ecological preservation are appropriate. A minimum density cap will vary because housing markets vary in different areas of the country.
The minimum density level for urban residential development in housing markets is one possibility. Four to six dwelling units per acre for single-family housing is typical, and guidance is available that visualizes development possibilities that can occur at these densities. The comprehensive plan is another option. It can provide guidance for growth and development that sets allowable residential densities and includes residential densities for undeveloped areas.
An additional remedy is required. After a municipality adopts a residential minimum density cap, any zoning above this minimum density will be nonconforming. A municipality could but may not rezone nonconforming minimum densities so that they comply with the minimum density cap. A court can remedy this problem by providing that rezoning to the new minimum density level is a ministerial act by the municipality, which requires only administrative approval, and is enforceable by a landowner in court.
Statutory reform of Large-lot Zoning can cover all the municipalities in the state and is protected by a presumption of constitutionality. It has several options. Statutes have limited lot size, restricted the adoption of lot size requirements, required the elimination or reduction in the size of Large-Lot Zoning as an optional zoning strategy, and required that “a substandard lot of record shall not be required to seek any zoning relief based solely on the failure to meet minimum lot size requirements of the district in which such lot is located.” Statutes can also define the situations in which Large-Lot Zoning can be used. For example, they can specify when it can be used for agricultural and environmental preservation purposes.
Decades of judicial neglect created a Large-Lot Zoning regime that covers large sections of suburban areas, raises housing prices, aggravates economic and racial segregation, and creates urban sprawl. This Article explains how Large-Lot Zoning is embedded in single-family residential zoning that is based on racial origins, is allowed without restriction by zoning legislation, and is sanctioned by the Supreme Court. Courts and legislatures should remove the tragedy of Large-Lot Zoning from our zoning system.
