“Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses.”

James Madison, Property, 1792

HD-1. Historic Overlay (Landmark Decision, est. 1926)

Suppose the Supreme Court overturned Euclid v. Ambler on a Friday. The celebrations would be loud, and deserved. Then Monday would arrive, and every zoning map in America would still hang on the wall of every planning department in the country. The statutes, ordinances, institutions, and economic expectations built around them would not disappear with a single opinion. Every new project filed that day would still have to abide by Friday’s rules, unchanged.

A century is a long time for an idea to set. In 1926 SCOTUS upheld a village ordinance in Ohio. The decision meant that a local government may plan and divide its territory in advance, assign each parcel a purpose, and require the owner to ask for permission for even the slightest diversion from the written rules.

Before 1926, state legislatures had already begun passing rules modeled on the Standard State Zoning Enabling Act (SZEA) drafted by Herbert Hoover’s Commerce Department. The decision gave states that had already begun enacting it, and the many that followed, the Supreme Court’s blessing.

Codes did not compound into volumes because of Euclid alone. The case happened because change was already underway. But Euclid gave all of it the Supreme Court’s cover. Beyond SZEA-inspired state legislation, comprehensive plans and other instruments that came later, such as specific subdivision rules, discretionary tools like design review, environmental review, and public hearings created a regulatory mess we still cannot find our way out of.

Then the price system absorbed all of it. A hundred years of permissions now live inside land values, mortgage underwriting, appraisals, municipal budgets, and the net worth of every household whose home is worth what it is worth because something else can’t be built next door. The distortion has shareholders who vote, show up to hearings, and defend what they hold with the same conviction the founders brought to defending theirs.

As much as we would celebrate its demise, Euclid is but the keystone. Pull it and the arch collapses, but the ruins may prove harder to clean up than a contaminated brownfield in the New Jersey meadowlands.

As with other landmark SCOTUS decisions that changed the framework of America, what Euclid did was change the use of one’s property from a right into a permission. Overturning it would matter, but it would just be a first step. Euclid is the moral keystone, and the real work is legislative.

R-1. Rights District (By-Right Uses Only)

I grew up in Latin America, where rights are understood as emanating from government, and can be taken without much protection. Owning something is easier there, using it as one’s own as well, but also losing it for arbitrary reasons, without recourse. Upon realizing how precarious property rights are in places other than America, I got together with a group of friends to study how the constitutional architecture of America came to be. We read the Federalist Papers, the English Bill of Rights, George Mason’s Virginia Declaration of Rights, which listed among the inherent rights of man “the means of acquiring and possessing property,” and then the Declaration itself.

Most people remember the preamble. Among the less remembered grievances, Jefferson accuses the Crown of “raising the conditions of new Appropriations of Lands.” The grievance capped a decade of Crown restrictions on land that began in 1763, when the British forbade colonists to settle or buy land beyond the Appalachians. Americans rebelled against a sovereign who made the acquisition of land a matter of permission.

In April 1787, a few weeks before the Constitutional Convention, Madison wrote a memo to himself called Vices of the Political System of the United States. He catalogued the laws of the states: their multiplicity, their mutability, their injustice. Local majorities had passed laws that interfered with contracts and private rights, and Madison concluded that they threatened the republic itself. The Constitution was written, in part, because local majorities had learned to vote themselves their neighbors’ property.

What I took from those evenings fits in a few lines. Rights come first. Government comes after, to secure them. The Ninth Amendment says so plainly: the enumeration of certain rights “shall not be construed to deny or disparage others retained by the people.” The Fifth says private property shall not “be taken for public use, without just compensation.” And Madison, in his 1792 essay on property, wrote that a man has property in his opinions, his faculties, and the free use of them, and that “as a man is said to have a right to his property, he may be equally said to have a property in his rights.”

Zoning codes have a phrase for uses you may undertake without asking anyone: by right. Thankfully for us, the concept was not new to the founders, and they applied it to everything.

N-1. Nuisance District (Pre-1926, Harm-Based)

No reasonable person would argue that early Americans lived without rules. Towns that had burned passed fire codes. Gunpowder was stored where the law said. Colonial towns pushed slaughterhouses, tanneries and other noxious trades to places where their effects would be least offensive. The rules were “negative”: only what was forbidden would be regulated. Everything else, you could do.

Common law, that most wonderful inheritance from the British, carried an old maxim across the Atlantic: sic utere tuo ut alienum non laedas. Use your property so as to injure no one else’s. The order of events mattered. The owner acted when harmed, and a broader yet less interventionist law assigned liability.

That order did not disappear overnight in 1926. In the decades before Euclid, the Supreme Court widened, case by case, what local governments could restrict. In Mugler v. Kansas (1887), it allowed a state to ban a lawful business, a brewery, without compensating the owner. In Welch v. Swasey (1909), it allowed Boston to set different height limits for different districts, drawn in advance. In Hadacheck v. Sebastian (1915), it allowed Los Angeles to shut down a brickyard that had been operating before the city grew around it.

The Court could still draw a line. In Buchanan v. Warley (1917), it struck down a Louisville ordinance that segregated residential blocks by race, on the grounds that it violated the right to buy, sell, and use property. And in Pennsylvania Coal Co. v. Mahon (1922), it warned that “if regulation goes too far it will be recognized as a taking.” In hindsight, it would have been tremendously helpful if the Justices had written down how far was too far.

By 1926 many pieces were already in place: bans without compensation, districts drawn in advance, and an owner who was there first but could still be moved aside. Euclid assembled them into a system. As Justice Sutherland put it, borrowing from the old law of nuisance, a nuisance may be “a right thing in the wrong place, like a pig in the parlor instead of the barnyard.” Common law asked whether you injured your neighbor. Euclidean zoning let the village preemptively decide where the parlor was.

U-1. Single-Family Supremacy

Fast forward to the Roaring Twenties. Euclid, Ohio, was a farming village east of Cleveland, directly in the path of the city’s industrial expansion along the rail lines. In 1922 it adopted an ordinance that divided its territory into six use districts, labeled U-1 through U-6. The hierarchy was cumulative. U-1 allowed single-family houses and little else. Each district below allowed everything above it, plus something heavier. Industry sat at the bottom.

Ambler Realty owned about sixty-eight acres in the village. Ambler alleged that for industry, the land was worth around $10,000 an acre, while zoned for homes, it was around $2,500. If those numbers were real, the ordinance would have erased three quarters of the value of the parcel.

A federal district judge, David Westenhaver, struck the ordinance down. He saw that it was meant to “classify the population and segregate them according to their income or situation in life.”

The Supreme Court reversed the lower court in 1926, six to three. The opinion was written by George Sutherland, ironically the Court’s great defender of property and contract. The decision changed the relationship between government and property owners in four important ways:

First, the decision extended to every parcel and every use what earlier cases had allowed piecemeal: it allowed councils to speculate about what might happen, and regulated it preemptively.

Second, the burden of proof was shifted. After the change, if a village’s map was even “fairly debatable,” the village won. The owner had to prove the government wrong. As hard as it must have been in 1926, it is close to impossible today.

Third, the Court upheld the system in the abstract while leaving particularly arbitrary applications to be fought later, case by case. The preemptive blanket regulation prevailed, and each owner would have to return to court when a particular line finally injured him.

Fourth, it redefined the building type that housed Americans for generations as a threat. The apartment house was written in the decision as a parasite and a nuisance, thus allowing codes to banish them from “good” neighborhoods.

The path to that sort of opinion is traceable. New York’s 1916 zoning code had been pushed by Fifth Avenue merchants who wanted the garment lofts, and the workers who filled them, kept away from their shops. Organized real estate wanted zoning to protect established values.

Hoover’s Commerce Department heard them and wrote the model law. By the time Euclid reached the Supreme Court, states were already adopting it.

M-1. Manufactured Scarcity

From activist and academic circles, they have spent decades dismissing the “slippery slope” as a myth brought forth by those opposing progress. Euclid has taught us the hard way that not all change is progress. Once the right was taken, Ambler could no longer direct its land toward the use its owners judged best. The loss of investment, and most importantly losses derived from the opportunity cost, were not unique to Ambler Realty, and have been disastrous over the past century.

Innovation, progress, and prosperity come from human action. Human action, in turn, responds to incentives, and incentives are downstream from the economy. When rights become permission, an extra, potentially very costly step acts as a bottleneck for new development. The owner who wants to do something different now needs a variance, a rezoning, a special exception, or an entitlement. Each one is a favor granted by a board, takes time, bears more cost, and ends up added to the buyer’s price tag.

Economists have a name for what that bottleneck adds up to. In the early 2000s, Edward Glaeser, Joseph Gyourko, and Raven Saks compared what Manhattan apartments sold for with what it cost to build them. Homebuilding is about as competitive as industries get, with almost nothing stopping new builders from entering, and in a skyline of high-rises the cost of one more apartment is simply the cost of stacking one more floor. Condominiums were selling for roughly $600 a square foot, more than twice that cost.

The gap was what buyers paid for scarcity: the premium on an apartment that exists because others were not allowed to. The authors attribute the premium largely to local zoning laws and land-use regulations blessed by Euclid. They concluded that it accounted for about half of what a condo owner paid for their unit. They called it the zoning tax. Unlike any other tax, its revenue does not go to the government. It goes to incumbents who already own property.

Their diagnosis could have been written by James Madison himself: piecemeal regulation had taken property rights from landowners and handed them to existing residents, public commissions, and ad hoc coalitions of well-funded opponents.

Knowledge that is distributed and moves people to act entrepreneurially dries out when market signals are replaced by legislation. The merchant who knows this corner wants a bakery, the builder who knows this lot wants four apartments, the widow who knows her upstairs rooms could house her grandson: each of them holds knowledge that is local, particular, and fleeting. And they understand and tolerate risk. That is what gets things built. The zoning map freezes an uneducated guess, made by people with the least information and the least at stake.

When land is priced by arbitrary allowances on a map rather than by what the parcel could do, prices still move, but they measure permission, not potential. A lot’s value tracks the odds of a board vote more than the odds that a bakery or a fourplex would succeed there. The door opens wide to a different kind of speculation: betting on councils instead of customers.

In 2021 Gyourko and Jacob Krimmel measured the tax directly, using data on vacant land bought to build single-family homes to estimate how far regulation bids up the price of land. Around San Francisco, the median zoning tax on a quarter-acre came to about $409,000, more than four times the region’s median household income. In the San Francisco, Los Angeles, and Seattle metros there is no escaping it: land everywhere has been bid up by at least a typical household’s annual income.

A board vote can double a lot’s value in an evening or cut it in half. In the 1930s, the Federal Housing Administration’s underwriting standards favored neighborhoods protected by zoning. Federal mortgage insurance began underwriting risk partly according to the map. The village of Euclid contributed to the blueprint for the national financial infrastructure.

Add all this and let it simmer over 100 years and the distortion becomes the norm. I work on Main Streets. Walk any of them and look up. The second and third floors are dark in town after town, because the apartment above the shop, the most ordinary building in American history, became illegal by law, or buried under so many requirements it may as well be in practice.

CUP. Conditional Use (Public Hearing Required)

In Federalist No. 10, James Madison defined a faction as a group of citizens “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens.” He considered it the deadliest disease of democracy and spent the rest of the essay explaining how a well-built republic contains it.

I had read that passage many times, along with the short life and violent death part that comes after, before I sat through my first public hearing on a building permit. The owner wanted to build something the code allowed only on condition. The neighbors had no claim on the parcel and many didn’t even live in the same block. They had no knowledge of its best use, beyond their own preference that nothing change. Yet they held a veto, lent to them by a delegated police power that Euclid had blessed a century earlier.

Nobody in the room, not even the petitioner, cared to discuss the infringement or asked where the owner’s right came from. It never occurred to them that the question applied. To them, they represented everyone in the community and were doing right by it by denying someone their rights.

Form-based codes are a real alternative to Euclidean zoning that many New Urbanists favor. They have proven successful in streamlining the creation of livable urban spaces, insofar as they allow a multiplicity of by-right uses, establish loose rules meant to generate human-scaled, quirky spaces, and minimize the tyranny of review for most cases. Their adoption remains far from universal, perhaps because doing so asks councils to surrender some of the discretion conventional zoning gives them.

If the alternative to faction is a well-designed republic, with checks and balances, and rule of law, then maybe the alternative to the unfortunate outcome of Euclid abused in a participatory environment is the use of new technologies that make checks and balances one hundred percent nondiscretionary, and rules nonnegotiable.

Automated plan review or algorithmic permitting would make approvals faster and less discretionary, but wouldn’t solve the aggregate, which is what Euclid confirmed: comprehensive, preemptive regulation of land use could be a constitutional exercise of the police power. A century of compound legislation followed.

FLU. Future Land Use (Unassigned)

A post-Euclid future is desirable. Our best cities and towns were built under a handful of narrow rules, most of them aimed at fire and nuisance. Charleston’s peninsula, Over-the-Rhine, and Fells Point were long established by the time their cities adopted comprehensive Euclidean zoning codes.

Many of the country’s first codes are turning or have already turned 100 in recent years. As we discussed above, most have incorporated ancillary legislation at the local, state, and even federal level, that makes the overturning of Euclid a small step towards a future land use of organic, human-scaled urbanism.

We need to weed out discretionary review for projects that already meet the code, hearing processes that turn permits into referendums decided by those with the least skin in the game, large minimum lot sizes, minimum parking mandates, as some states like North Carolina have moved to eliminate, and the effective ban of the building types Americans lived in for three centuries, which incidentally is among the most desirable real estate in Hoboken, Wicker Park, or Boston’s South End. The default must flip back from permission to right, in every code, at every level.

As a Localist, I recognize withdrawing zoning power from local governments might seem like a violation of the principle of subsidiarity. There is a stark difference, however, in legislating from above to prevent a specific vice, and doing it to assume control over matters best solved at the smallest possible level.

States delegated zoning power to municipalities through enabling statutes, many of them modeled on or heavily influenced by the SZEA. Withdrawing the delegation of authority to establish preemptive control is not the same as seizing a local power.

A future land use map left blank by state law leaves it to those with skin in the game to fill, and local governments can still use all democratic tools at their disposal, pass ordinances, hold votes, ask residents, punish harm and keep adding to the tradition of common law. Anything, except writing blanket rules that infringe on rights that have existed well before the town got its charter.

LNC. Legal Nonconforming Use (Rights, Grandfathered)

Zoning has a category for things that existed before the code was written. A corner store built in 1910 in what became a residential district or a duplex on a street later zoned for single houses. The law calls them legal nonconforming uses. They were there first, so most codes let them stay, albeit begrudgingly.

Property rights are the original nonconforming use and as such, they belong in this category. They were here first. Before the zoning code, before the planning commission, before the village of Euclid, before the Constitution that was written to secure them.

One thing that no council can legislate on is what they don’t know. New uses, new building types, new construction technologies, and new commercial typologies that have not yet appeared. A council member voting in New York in 1916 to enact a new Zoning Resolution could never have imagined entire shopping districts would be replaced by a smartphone or that towers well above 1,500 feet tall would cast long shadows over Central Park.

The impossibility of having dispersed, prescient knowledge at the time of writing or amending zoning codes makes them machines to infringe on the future rights of cities, and it makes a spectacular case for going all in on overturning Euclid.

But here is the plot twist: the police power Euclid blessed goes both ways. A willing local government could use its existing powers for a different forecast, to create a different future, and abolish as much as possible of their current preemptive zoning laws that have crippled its own development and social cohesion.

The group I studied with kept circling one question: where do rights come from? We never neatly agreed on one answer. We agreed on one thing: they don’t come from a board, and they don’t arrive by permit. It’s about time we start exercising them to build the American cities of the future.

Jaime Izurieta is the editor in chief of Southern Urbanism. Architect, designer, and urban development consultant, founder of Storefront Mastery, author of Main Street Mavericks and The 10 No-BS Rules for Successful Storefront Design. He has founded a city, a museum, and an architectural practice, planted a few trees, rehabbed a 100-year-old farmhouse, co-owned an independent bookseller, and taught architectural design studios at university. Jaime now serves downtowns and commercial districts all over the country from Montclair, New Jersey, and writes on Substack at The Vertical Sidewalk.

WASHINGTON, DC | November 22, 2026 marks the centennial of the Village of Euclid v. Ambler Realty Co. decision. On that date, Americans will have endured a century of judicial deference on land use planning, leaving municipalities with broad authority to sort building uses, heights, and densities under highly subjective standards justified by nebulous rationales of health, safety, morals, and general welfare. Each passing year has justified more power for the state and reserved less for the people, even as some states have begun to curtail local discretion. At 100, it’s time to consider how we might bring all of this to a rightful end.

The power of cities to codify pseudoscientific parking requirements, demand discretionary review, and pre-ordain land uses without the owner’s consent all emanate from the Euclid decision. The resulting system has produced perpetual housing shortages in high-opportunity places, limited property owners’ ability to respond to demand, and chronic patterns of exclusion.

Euclid’s centennial is a time for reflection. With it, legal institutions and advocacy groups are taking time to understand the decision’s negative impacts and are considering ambitious campaigns to stop these harms from continuing.

In short, that means overturning Euclid.

Supreme Court cases can be overturned. The Supreme Court overturned Plessy v. Ferguson (1896), which upheld racial segregation under the doctrine of “separate but equal,” in Brown v. Board of Education in 1954. Dred Scott (1857), which declared that descendants of enslaved people cannot be citizens of the United States, was overturned by the 14th Amendment of 1868. There are many more. Euclid has not yet followed that path.

From a legal perspective, Euclid will be attacked from multiple angles. Below, I outline three lines of argument that offer the most coherent routes to overturning the decision. Each can be advanced through as-applied challenges, carefully chosen plaintiffs, and supporting amicus work.

1. Euclid Is a (5A) Taking

The strongest vehicle for overturning Euclid is a modern 5th Amendment Takings Clause claim. Euclid treats severe use restrictions as ordinary police-power regulation rather than a taking of the right to use property. Contemporary doctrine has not fully abandoned that view—cases like Nollan/Dolan and Cedar Point have narrowed complete deference for certain sleights (especially exactions) without reaching ordinary use restrictions that leave residual value—but scholarship and lower-court practice have narrowed the gap. Law professors Joshua Braver and Ilya Somin have argued that exclusionary zoning—especially single-family districts that bar apartments, duplexes, or modest commercial uses—should generally be treated as a regulatory taking requiring compensation or invalidation.

The argument rests on the original understanding that the right to use land is part of the property protected by the Fifth Amendment, and on living-constitution theories concerned with oligarchic barriers to mobility. Under anti-oligarchy readings (one interpretive strand, not settled doctrine), such as those by Daron Acemoglu, courts should intervene when ordinary political processes systematically favor incumbents and disadvantage outsiders or diffuse interests (future residents, renters, lower-income workers). Under this view, the complete judicial deference to local zoning decisions (the standard under Euclid) fails to protect the underlying constitutional commitments to equal opportunity and open access.

As an example, a clear legal contrast exists between private covenants and zoning. Covenants bind only those who agree to them; they require universal consent among affected owners and can be enforced or modified only by private agreement. Zoning imposes equivalent (often stricter) limits by majority vote of a council or planning commission, requires no consent from the burdened owners, and provides no compensation for the lost development rights.

Given this simplest of simple takings framework, an ideal plaintiff is an owner of residentially zoned land near a job center or transit line who can document a substantial drop in feasible value once apartments or missing-middle housing are barred. The value measurement problem under Penn Central remains real—how much diminution is “too much”—but litigation strategy would pair a takings claim with a request for invalidation or damages, supported by amicus briefs from property-rights organizations and empirical work showing the aggregate productivity loss from Euclid-justified exclusionary rules.

Critically, success would not require the Court to abandon all land-use regulation; it would require compensation or heightened scrutiny once restrictions go beyond traditional nuisance control and destroy a large fraction of the property’s use value. In such a case, Euclid would not be overturned in every application, but it would be substantially gutted for the severe use restrictions that dominate planning practice—effectively the same result for the rules that matter most.

2. Euclid Fails to Deliver Equal Protection Under the Law (14A)

A second path rests on the Equal Protection Clause and the history of discriminatory purpose. Nine years before Euclid, the Supreme Court in Buchanan v. Warley held that an ordinance barring the sale of property across racial lines exceeded the state’s police powers and violated the Fourteenth Amendment’s protection of property and contract rights.

The district court in Ambler warned that upholding the Euclid ordinance would supply a template for achieving similar (racist) ends by proxy. Justice Sutherland’s opinion validated the district court’s concerns, arguing that apartment houses were “mere parasites” (referring generally to recently arrived Italians and Jews) and that separating uses would protect the “residential character” of districts (we can deduce what that means via negativa).

Newton Baker, arguing for Ambler and against the establishment of zoning as precedent, pointed to a recent Ohio case in which a well-managed Jewish orphanage was excluded from a village because local civic authorities did not want “a large number of Jewish children” in their midst. Progressive-era planning literature frequently treated density, immigrants, and the poor as sources of social and biological “pollution.” If Euclid would pass, Baker argued, such discriminatory racial policy would take deeper root, especially because it would then be validated (and effectively sanctioned) by the state.

Any 14th Amendment case rests on discriminatory intent, a framework that Village of Arlington Heights v. Metropolitan Housing Development Corporation failed to prove. The court held that denying multifamily housing was legitimate because no evidence showed that “Discriminatory purpose was a motivating factor in the village’s decision.”

Modern digital records have changed the evidentiary landscape. Well-documented community meetings, neighborhood listservs, Facebook pages, and Nextdoor archives provide discriminatory statements, but courts remain cautious about inferring purpose solely from neighbor hostility; a stronger claim is evidence that public policy decision-makers themselves adopted or ratified the exclusionary rationale. The timing of adoption, linked statements by officials, and the practical effect of barring multifamily housing in previously open areas can all be relevant and revive these older claims.

Many cities’ stormwater exemptions, for example, are applied more leniently to single-family and duplex projects than to multifamily development of comparable or smaller scale. This effectively discourages lower-income housing in a community without saying it out loud. Building-code disparities are easier for municipalities to defend under rational-basis review than pure use restrictions, yet they still illustrate the pattern.

Alli Quinlan, an architect and incremental developer who has documented barriers to missing-middle housing, has highlighted parallel disparities in life-safety rules: multifamily buildings are routinely required to install full sprinkler systems under commercial standards (NFPA 13 or 13R) while single-family homes of similar (and larger) size escape the mandate, even though there is no proof that small multifamily is more of a fire risk.

Public records in multiple jurisdictions show officials specifically seeking to increase the cost of affordable or missing-middle housing to discourage it from being built in their communities.

An ideal 14th Amendment case would combine historical evidence of discriminatory purpose with modern data showing that rules of this kind continue to raise the cost of smaller multifamily projects relative to single-family construction of equivalent impact. The litigation goal would be a holding that an ostensibly neutral zoning or code was adopted or maintained with discriminatory intent, or that it functions as a proxy for earlier racial and ethnic exclusion, and therefore fails equal-protection obligations under the law.

3. Euclid Fails Its Own “Arbitrary and Capricious” Test

The third line of attack tests the police-power justification on its own terms. Euclid instructed courts to defer when the legislative judgment was “fairly debatable.” But Sutherland, in his majority opinion, also declared that a zoning ordinance violates the Due Process Clause if it is “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or the general welfare.” Many current applications clearly fail that test.

Rules that mandate expensive discretionary approvals for established historical forms and uses, or that offer relief from arbitrary requirements unrelated to public health or safety, could only be described as “arbitrary and unreasonable.” Aside from some reasoned environmental concerns worthy of regulation, much of zoning today reflects the utopian, ideological preferences of a profession with little to no experience in the actual practice of citybuilding—preferences that frequently lack a substantial empirical relation to health or safety. Such is the sclerosis caused by 100 years of this flawed decision.

The variance or text-amendment process for a risk-bearing property owner suffering these injuries often provides no practical relief: an applicant must spend significant time and money requesting permission (from non-risk-bearing bureaucrats) to do what the city historically allowed, but the modern ordinance forbids, only to face the same exclusionary participatory political machines that produced the restriction. In practice, the system can be circular—legal only after the applicant pays to make it legal. This asymmetry is ripe for civil-rights litigation. (Many jurisdictions already treat variances as a tool reserved for the extraordinary; the deeper problem is the baseline prohibition plus high standards for relief, which combined justify the litigation.)

What could a case look like? An as-applied challenge focused on a specific ordinance provision with thin empirical support for “health and safety,” brought by an owner who has documented both the cost differential and the absence of a corresponding safety or environmental gain, could force courts to demand more than conjecture. Success would narrow the zone of deference without eliminating the police power altogether—again, gutting Euclid for the rules that matter most without killing every application.

Other Approaches

Other legal theories exist but are less promising. An antitrust claim framing zoning as homeowner regulatory capture faces the obstacle of state-action immunity. Selective-enforcement arguments modeled on Yick Wo v. Hopkins can succeed in particular cases with strong evidence of discriminatory application, but they are difficult to generalize. State constitutional doctrines such as New Jersey’s Mount Laurel fair-share requirement offer useful models for affirmative obligations, yet they do not supply a federal basis for revisiting Euclid. Historical comparisons to Dred Scott and Plessy remain rhetorically powerful as a story of overturning wrongdoing—and can frame amicus briefing—but they are not themselves legal holdings.

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A Vision

A practical campaign to overturn Euclid would identify plaintiffs who can document concrete harm—lost development value, differential regulatory cost, or inability to build housing that neighbors of similar scale are permitted to build—and pair them with organizations experienced in property-rights and housing litigation at the highest level of the judicial system. Primarily, the Institute for Justice and Pacific Legal Foundation, both of which appear before the Supreme Court each year and regularly sue governments over land-use wrongs to establish transformative new precedents.

Ideal cases would present clean facts on one of the three theories above, with supporting records on intent or empirical weakness. Amicus briefs could supply the historical materials from the Euclid litigation, modern economic estimates of the cost of exclusion, and comparative evidence from jurisdictions that have already relaxed similar rules. Parallel state legislative campaigns can achieve partial results faster while the federal theories develop.

The objective is not the abolition of all land-use regulation. It is a decision that the severe use restrictions that dominate today either require compensation, rest on demonstrated rather than conjectural connections to health and safety, or cannot be maintained when they continue the exclusionary purposes that Buchanan forbade. Such a result would restore a measure of the property rights and equal-protection principles the 1926 decision set aside, and it would do so in time to prevent the precedent’s second century.

My personal experience is that advocacy that aims to address public-policy wrongdoing occurs in three progressive steps: 1) Show, 2) Shame, 3) Sue.

• First, advocates should thoroughly document the wrongdoing and productively propose specific action to correct it.

• If that’s ignored, they identify the people blocking the fix, document their behaviors, and share it widely with the world.

• And finally, if that doesn’t work, litigate.

Show, Shame, Sue.

After 100 years, it’s time to identify the litigants, and let the lawyers get to work.

Aaron Lubeck is a designer & builder with The Rocket Shop in Durham. He is the author of Green Restorations: Sustainable Building and Historic Homes and a former adjunct at Duke University’s Nicholas School, where he taught sustainable home building. Aaron is a founding faculty member with Incremental Development Alliance and was the original host of The Townbuilder’s Podcast, a curated conversation with top new urbanist developers. He writes about policy reform, urbanism, and incremental development at onHousing.

This post is cross posted with the author’s personal blog “onHousing” at aaronlubeck.com

Bibliography

Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
Primary holding and “fairly debatable” / “clearly arbitrary and unreasonable” standard.

Buchanan v. Warley, 245 U.S. 60 (1917).
Pre-Euclid racial zoning decision on property and contract rights.

Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977).
Discriminatory-intent framework under the Equal Protection Clause.

Braver, Joshua, and Ilya Somin. “The Constitutional Case Against Exclusionary Zoning.” Texas Law Review (forthcoming; SSRN 2024). See also the condensed version in The Atlantic, June 12, 2024.
Originalist and living-constitution arguments treating severe exclusionary use restrictions as regulatory takings; discussion of oligarchic barriers to mobility.

Nollan v. California Coastal Commission, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994); Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021).
Essential-nexus, rough-proportionality, and physical-invasion limits on certain regulatory impositions (primarily exactions).

Wolf, Michael Allan. The Zoning of America: Euclid v. Ambler. University Press of Kansas, 2008.
Historical context, Newton Baker’s arguments, Progressive-era planning literature, and the “mere parasites” language and surrounding record.

North Carolina House Bill 488 (2023), Section 9.
Statutory direction moving triplexes and quadplexes into the Residential Code and prohibiting the Building Code Council from requiring automatic fire sprinklers for them.

Quinlan, Alli Thurmond. Public commentary, Incremental Development Alliance materials, and documented local examples of differential code and zoning treatment of missing-middle housing (including life-safety and stormwater rules that raise costs for small multifamily relative to single-family of comparable scale).

Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).
Multi-factor regulatory-takings test (economic impact, investment-backed expectations, character of the government action) relevant to measuring diminution in value.

Euclid at 100 is a four-part series examining how we got here, the ideas behind the decision, what zoning has cost us, and what American cities might look like without it. At Southern Urbanism, we believe cities are built by free people making decisions about the places they own, the businesses they run, and the communities they belong to. These freedoms are worth restoring.

Village of Euclid v. Ambler Realty Co effectively handed the power to make decisions about what-gets-built-where to zoning boards and the governments which house them. From whom was this power appropriated? Was such an appropriation just? Euclid is a landmark in the perennial American debate—just how much government should we have—that tilted the scales decidedly in favor of “more”.

Subsidiarity is a fundamental principle of social organization that insists matters should always be handled by the most local, competent authority.1 It includes, of necessity, the truth that people, families, and society exist prior to the governments they form to serve them.

Subsidiarity is rooted in the idea that all power and authority are given for the sake of those beneath you. All power is power for the sake of lifting others higher, all authority is for the good of others. This is nowhere more obvious than within the family. Parents have power and authority over their children precisely because they are the people most interested in the child’s welfare. All other authority exists in nested hierarchies that follow the same principle. Problems that cannot be solved within the household go out to the extended family, which may in turn go out to the rest of the town, friends, friends of friends, the church, and the whole fabric of other families sharing life in the same place as you. With each ascending step up the scale, you reach the level of authority who is most properly concerned with the good of those involved. Problems of the highest scale may finally reach a president or a pope.

Critically to our present topic, it does not follow that those at the top of the hierarchy should exercise the same level of authority all the way down. The office of president may be “higher” than that of mine as parent, but it confers no authority whatsoever over my child. The society wide handling of problems and blessings proper to your authority is subsidiarity in action. Subsidiarity is violated when those above overreach into realms below which are not proper to them. But subsidiarity is upheld when the duties of the proper authority are taken by the next highest authority, as in the case of an extended family that takes in an abandoned child. The principle here is the same: matters should always be handled by the most local, competent authority. Incompetent authority is as hateful to subsidiarity as is excessively remote authority. Neither is conducive to expedient, complete, and loving justice.

The question remains: was the federal government the proper authority to pass judgement on the problems presented by Euclid? Is the precedent set by the SCOTUS case one that encouraged, or hindered, subsidiarity?

Ironically, though Euclid the sort of legislation nominally designed to prevent un-wanted industries (like, say, a wartime aircraft plant) from moving into a community, philosophically Euclid is a move towards the imposition of such projects upon unwilling communities (as the later government-forced development of, you guessed it, a wartime aircraft plant on Amber‘s property perfectly demonstrates). That some land use practices are incompatible with one another when placed in close proximity is obvious. That the government should be the de-facto legislator of which uses are deemed compatible is not. But Euclid set a precedent of top-down management that we have wrestled with for a century.

Take just one example from the syllabus of the Euclid court documents:

7. The power to relegate industrial establishments to localities separate from residential sections is not to be denied upon the ground that its exercise will divert a flow of industrial development from the course which it would follow and will thereby injure the complaining land owner. P. 272 U. S. 389.

This claim is interesting, because the government later permitted its violation to a T on the Amber property itself. The essence of Amber’s case is that land was purchased for its potential to be developed commercially/industrially. The village of Euclid created a new zoning map that prohibited such development on the land. Federal government upheld this decision on appeal and penned syllabus note 7 above. The same government suddenly reversed its decision when it entered WWII and promptly allowed the building of an aircraft manufacturing plant, which later became…

The takeaway here, is that the government overstepped. It was not the right authority to make a land use decision for this community, as evidenced by its later permission of the exact use the original property owner intended. The difficulty exemplified in a case like Euclid is that morality can be very hard to legislate. Beyond the ten commandments, it is fairly difficult to find things that are always and everywhere wrong for everyone. Hence the necessity of wise and virtuous judges, who implement their knowledge of the law to ensure particular justice in the myriad of possible problems that arise in the course of social life.

How else might it be done?

Penny Auctions: a historical counter example

Here are two playbooks. In the first, a big power comes in (like the federal government) and does something everybody recognizes as destructive of their community, say forcing a foreclosure on local farmland. Whatever may have caused the mess, the fundamental things which are not to be disturbed are people and their relationship to the productive property by which they make/earn their living. These are the building blocks of society above which hell may rage but must, on no account whatsoever, be damaged. The whole town knows this, so everyone goes to the auction and bids literal pennies on the foreclosed property. As a deterrent against anyone tempted to sell his soul for his neighbors cheap real estate, a gallows erected outside the auction hall reminded such would-be progressives that the price was 16’ higher than advertised. The auctioneer is forced to take the highest price, which the town ensured was the original property owner, and thus the land was restored to its rightful owner.

This is a dark example, and it is certainly not a method anyone looks forward to employing. Grim as it may be, it is a justifiable, even laudable, response of the people against a tyranny which threatens their very existence. This is, archetypically at least, an example of subsidiarity: no out-of-town authority is going to come in and kick our neighbors off their land for wrongs they did not commit.

A second, more cheerful example presents itself in the everyman character of George Bailey. Facing a run on the bank, he reminds his friends, family, and neighbors that:

No, but you... you... you’re thinking of this place all wrong. As if I had the money back in a safe. The money’s not here. Your money’s in Joe’s house... (to one of the men)...right next to yours. And in the Kennedy house, and Mrs. Macklin’s house, and a hundred others. Why, you’re lending them the money to build, and then, they’re going to pay it back to you as best they can. Now what are you going to do? Foreclose on them?……..Now, we can get through this thing all right. We’ve got to stick together, though. We’ve got to have faith in each other.

Bedford Falls has a choice: sell each other out for 50 cents on the dollar to the highest power around (Potter), or stand united, shouldering each other’s burdens today so as to rejoice in each other’s joys tomorrow. George’s moving speech presents him as the virtual saint of subsidiarity, using what power and authority he has for the sake of those under his care even at great personal cost. Whatever else is going on in the state, country, and world at the moment, it is George Baily who is the proper authority to respond to the crisis in Bedford Falls. It is unthinkable that he could be replaced by a federal surrogate.

Are we ready to be a post-Euclid people?

The ancient Israelites had no king, they were governed by the guidance of Yahweh as given to them by the prophets. Desirous of appearing like the other nations, they beg Yahweh for a king. Their rulers have become corrupt (taking bribes, insider trading) and for one reason or another they are incapable or unwilling to solve the problem themselves. Yahweh tells them in no uncertain terms what the rule of a king will be like:

“[the king] will take your sons and assign them to his chariots and horses, and they will run before his chariot. He will appoint from among them his commanders of thousands and of hundreds. He will make them do his plowing and harvesting and produce his weapons of war and chariotry. He will use your daughters as perfumers, cooks, and bakers…he will take your male and female servants…he will tithe your flocks…as for you, you will become his slaves…On that day you will cry out because of the king whom you have chosen, but the Lord will not answer you on that day.” - 1 Samuel 8:11-18 (emphasis mine)

Sounds pretty terrible. But the Israelites insist, Yahweh grants them their request, and it goes exactly as he told them it would.

It is worth asking: are we citizens of the 21st century any different? Have we brought Euclid upon ourselves?

Do we not ask of our government and politicians things which we ought rightly to ask of ourselves? We demand that the president “do something” and look with hope to Bernie Sanders when our complaint is with the local police chief who installed flock cameras. We bemoan the loss of the American spirit and condemn the shade-tree mechanic in the same breath. We complain about our neighbors on Nextdoor and slam businesses on Yelp as expressions of our democratic freedom. We take pride in building our own little neighborhood bureaucracies with BOARDS and CAMPAIGNS and ELECTIONS, and isn’t it all so fun? Thank God we have moved beyond neighbors with whom we are friends and whose names are known to us, into the great Enlighted age where the lowest common denominator under which we can “associate” is that of “home owners”.

Are not we all obliged to do unto others as we would have them do to us?

Should it come as any surprise, therefore, that we continue to labor under the yoke of Euclid? What about our conduct as a people demonstrates that we are better than children who must be silenced with “because”? Where else in our lives are we governing ourselves with justice and equanimity? Are we not simply erecting little temples to the spirit of Euclid everywhere we look?

These questions are not meant as brow-beating. There have always been, and God willing always will be, brave men and women who fight the good fight. But the culture wars of the last century, from the counter-culture movements of the 1960s to the cancel culture of the 2010s, have all served to denigrate essential civic qualities; the value of common sense, the supremacy of reason and argument over passions, the necessity of disagreements that are respectful and rooted in rational discourse. The internet has alienated us from one another, our children and grandchildren move away from home. We no longer do anything together that isn’t state sponsored, work related, or otherwise formally programmed.2 Euclid predates all of this, but it is difficult to look at the cultural trends of the last century and conclude that we have moved in the right direction. Where have we shown ourselves desirous, let alone capable, of true self-governance?

We are a people who have perfected the art of cognitive dissonance, quick to detect the sliver in our neighbor’s eye while violently rebuking those who would attend to the beam in our own.

The essays in this series highlight the many problems with Euclid and I will not repeat them here. Suffice it to say that, whatever else Euclid is, it is decidedly not a piece of legislation that well-formed and prospering people would impose upon themselves. It should, naturally enough, be struck down. It’s abolition, however, is only the elimination of an obstacle, it is not the positive creation of some new good thing. Nature abhors a vacuum, and the hole which the disappearance of Euclid will leave in our development landscape will not long remain unfilled. Will we rise to the occasion, and display ourselves the virtues and liberalities we hope to see in others? Will we seek to always do the right and noble thing “at a profit if we can, at a loss if we must”? Will we raise up the George Baileys among us? Or will we sell to Potter for the fastest cash we can and run before new legislation hits?

Euclid has been a net negative for the world. But it is not hard to sympathize with some of the fears at the turn of the 20th century. The evils and excesses of industrialization are well documented if not well known. If Euclid erred in running too far in the opposite direction, the least that can be said is that at least it was running away from a known evil. The pendulum swung so far from the crowded, dirty Dickensian nightmares of the time that we ended up with the sprawling, sterile, suburban nightmares of our time. It is critical that in our push to reverse the damage of Euclid, we strive to do more than simply de-throne an oppressor, we must also install a new ideal, one aligned with the principle of subsidiarity.

A post Euclid world is full of promise and possibility for a revival of subsidiarity, but it will not happen on its own. It need not, I think, cost us any more than a few cents. Perhaps we ought to take it as a warning that penny production has ceased just when we are most in need of reviving the auction which bears its name.

Nick Larkins is a Philosophy-graduate-turned-craftsman. He has worked as a pipe organ builder, welder, historic home GC, timber framer, motorcycle mechanic, and furniture maker. He presently works in Cartersville, GA, as the head of Craeftworks, a millwork and fabrication shop integrating traditional building practices with incremental development. He writes about the interconnection of the building arts, the liberal arts, and human flourishing. He publishes at With Tools in Hand.

2

See Robert Putnam’s Bowling Alone for a comprehensive treatment of this alarming trend.