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Euclid, Smart Growth, and the Need to Think Regionally

Land use regulations have been around for a long time in America. Most planning students are familiar with the origin story: nuisance laws, New York 1916, Euclid 1926, the Standard Zoning Enabling Acts. This paper will examine that origin story in depth, looking at the major court decision, the Village of Euclid, Ohio v. Ambler Realty, as well as examining how these traditional zoning laws have played out over time. It will look at how those laws have affected issues like transportation, race, and the environment in addition to how they have affected traditional government services. The paper will then examine alternatives to traditional, Euclidian zoning, specifically what has been termed as "Smart Growth." It will examine the basic philosophy of Smart Growth and look at examples of communities that have enacted these regulations to varying degrees of success. Finally, the paper will draw from these instances of Smart Growth regulations to determine some best practices of implementation.

Land use regulations in America have a long history. In fact, they date back to colonial times with the old British colonies maintaining rules governing the timing and location of development. The Massachusetts Bay Colony, for example, prohibited dwelling more than one-half mile from town meeting housing without court approval (Dowling, 2000). In the same spirit, Connecticut enacted laws addressing the depopulation of towns (Ibid.). Other land use controls were enacted by the colonies that limited not only the amount of development, but also the sequence of development (Ibid.).

As far as the U.S. legal history goes, the earliest U.S. land use regulations centered on the common law of nuisance. Legally, a nuisance is defined as a "nontrespassory invasion of another's interest in the private use and enjoyment of land" (Nolon & Salkin, 2006). In essence, these are actions brought by one landowner against another to be determined by a court. The courts then would deal with these issues on a case by case basis. Anyone bringing an action must be significantly impacted and must be able to prove that the land use is unreasonable (Ibid.). This can be determined by a number of tests: the suitability of the activity on the land, the value to society of the land use, and the hardship to the defendant (Ibid.).

Examples of these actions include the 1917 Wisconsin case of Clark v. Wambold and the 1887 Louisiana case Villavaso v. Barthet. In the Wambold case, action was brought by the plaintiff against a rural piggery due to foul odors and disturbing sights and sounds (Ibid.). In this instance, the state court ruled that the plaintiff had no grounds for action as the rural area in which the piggery was located was an appropriate place to raise pigs (Ibid.). This can be contrasted with the Villavaso case, in which Villavaso brought suit against Barthet, alleging that the location of his slaughterhouse in a residential area of New Orleans was a nuisance (J. M. Villavaso et al. v. Louis Barthet et als., 1887). In this instance, the state court agreed with the plaintiff and ordered the slaughterhouse closed (Ibid.).

The first major shift in these types of laws came through the City of New York in 1916 when the Board of Estimate and Apportionment adopted a building zone resolution "regulating and limiting the height and bulk of buildings ... and regulating and determining the area of yard, courts, and other open spaces, and regulating and restricting the location of trades and industries and the locations of buildings designed for specified uses and establishing the boundaries of districts for the said purposes" (City of New York, 1916). This law divided the city into three use districts: residential, business, and unrestricted (Ibid.). It addressed non-conforming uses, stating that existing structures may continue in their use so long as no structural changes would be made (Ibid.). In addition, the law contained district use exceptions, establishing a board of appeals and a set of circumstances for these exceptions (Ibid.). For example, a district boundary line dividing the lot of a single ownership could be used for either purpose (Ibid.). The law also established five classes of height districts governing the size of buildings and five classes of area districts governing the size of yards (Ibid.). Both of these regulations, likewise, had established exceptions to the district rules (Ibid.).

In effect, this was the country's first zoning ordinance. It was a huge shift from the above mentioned nuisance laws, which were reactive, case-by-case rulings (Attkisson, 2009). The New York law, and the zoning laws that came after it, were, rather, proactive (Ibid.). Rather than waiting to rule on a development after the fact, these new zoning ordinances determined which uses would be deemed appropriate before the fact, leading to more certainty for land owners and developers (Ibid.). They are, in essence, an extension of the nuisance laws as they are simply defining what nuisances are in advance, rather than waiting to make judgments on individual pieces of property after the fact.

It was not until 1926, however, that the U. S. Supreme Court would establish an opinion on these land use regulations (Nolon & Salkin, 2006). Up to this point, there were serious constitutional concerns regarding these rules, the best of which can be summed up by Judge D. C. Westenhaver, the first federal judge to rule on the landmark Euclid case. Before we get into that ruling and its subsequent overturn by the U. S. Supreme Court, though, the context of the case should be established by examining the 1922 ordinance.

The village, a suburb of Cleveland, established a zoning plan "regulating the location of industries, trades, apartment houses, two family houses, single family houses and other uses of property, the area and dimensions of lots and yards, the bulk and alignment of buildings near street frontages" (Village of Euclid, 1922). The intended purpose of this law was to "preserve the character ... and the public improvements therein, to prevent congestion, and to promote and provide for the health, safety, convenience, comfort, prosperity, and general welfare of the citizens thereof ..." (Ibid.). This zone plan was very similar in concept to the New York plan, yet different in that it expanded on the number of different use districts. Whereas New York had the three use districts discussed above, Euclid established six districts - single family housing, two family house districts, apartment districts, retail districts, commercial districts, and industrial/manufacturing districts (Ibid.). Also, similar to New York, Euclid established three height districts regulating the size of buildings and area districts regulating lot size (Ibid.). The ordinance also established regulations for non-conforming uses similarly to New York, qualifications for exceptions, and a board of appeals (Ibid.).

This ordinance was challenged in court by Ambler Reality and arguments were heard by Westenhaver in federal district court in January 1924. Judge Westenhaver, ruling against Euclid, recognized the historical significance of this case as he opens his opinion by stating: "This case is obviously destined to go higher" (Ambler Realty Co. v. Village of Euclid, Ohio, et al., 1924). Westenhaver believed the central focus on the case centered on the authority of the police power of Euclid, and whether or not the village had a legitimate ability to enlarge the police power beyond the authority to enforce nuisance laws (Ibid.). He argued that the ordinance was in violation of both Ohio's constitution and the Fourteenth Amendment of the U. S. Constitution, stating that the zoning was not a proper exercise of police power and constituted a taking (Ibid.). He stated:

The argument supporting this ordinance proceeds, it seems to me, both on a mistaken view of what is property and of what is police power. Property, generally speaking, [Euclid's] council concedes, is protected against a taking without compensation, by the guaranties of the Ohio and United States Constitutions. But their view seems to be that so long at the owner remains clothed with the legal title thereto and is not ousted from the physical possession thereof, his property is not taken, no matter to what extent his right to use it is invaded or destroyed or its present or prospective value is depreciated. This is an erroneous view. The right to property, as used in the Constitution, had no such limited meaning. (Ambler Realty Co. v. Village of Euclid, Ohio, et al., 1924)

He concludes by stating that the zoning ordinance, therefore, is a taking of Ambler's private property for a public use without just compensation. It is, therefore, unconstitutional and void and is not a reasonable or legitimate exercise of police power (Ibid.).

Two years later, in November 1926, Judge Westenhaver's decision was overturned by the U. S. Supreme Court. This decision validated the constitutionality of zoning and other land use regulations as a legitimate exercise of the police power of local governments. Justice Sutherland, writing the opinion, states that with the increase in population and the concentration of populations in urban places, restrictions in the use of private lands is required (Village of Euclid, Ohio v. Ambler Realty Co., 1926). He says regulations of these types are valid so long as they are determined through the police power of the municipality made with consideration for the public welfare of the community (Ibid.). He likens the regulations, as discussed earlier in this paper, to the well-established laws of nuisance, which have given these types of power to local governments in the past (Ibid.). He gives great leeway to the governing authority, opining that so long as a zoning regulation is "fairly debatable" then the courts must side with the municipality (Ibid.). He rules, then, that the impetus is on the side of the challenger to prove that the law is arbitrary, unreasonable, and has no relationship to the public health, safety, morals, or general welfare of the community (Ibid.).

For our purposes, this decision validities the practice of zoning and other land use regulations. While Westenhaver believed that any regulation limiting a land-owner's options constituted a taking, the U. S. Supreme Court did not view it that way. The Court, ultimately, grants local municipalities great authority when it comes to these laws, so long as there is a reasonable argument that the regulation is made in regard to the health, safety, morals, and general welfare of the community. And - importantly - any challenges to these laws must show the law as being made arbitrarily, and not with reasonable forethought.

With the Supreme Court validating the practice, municipalities all over the country began to enact similar regulations. In 1926, the U. S. Department of Commerce released the Standard Zoning Enabling Acts (SZEA) which would be adopted by forty-three states by the end of the year (Attkisson, 2009). The SZEA, which was intended to be adopted by states "as is", empowers local governments to "regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes" (Department of Commerce, 1926). The key is that the purpose, as spelled out by the SZEA, is for the promotion of the "health, safety, morals, or the general welfare of the community" (Ibid.). This, of course, is the same phrase mentioned by Justice Sutherland in the Euclid case.

The SZEA, as mentioned, empowers local legislative authorities to divide the municipality into districts determining the land use, building size, lot size, etc. (Ibid.). These divisions are to be made in accordance with a comprehensive plan designed to promote the health and general welfare of the community (Ibid.). The SZEA also states that the regulations are to be made with "reasonable consideration ... to the character of the district and its peculiar suitability for particular uses" (Ibid.). These regulations are to be made in a public manner, with an advertised public hearing (Ibid.). Also of importance is the SZEA established a procedure to amend or change regulations (Ibid.). The SZEA also requires local municipalities to establish zoning commissions and boards of adjustment in order to respectively develop a zoning plan and to, in special cases, make exceptions to the plan (Ibid.). Lastly, the SZEA also grants the local governing body enforcement power and lays out the procedure when the local law is in conflict with other local laws (Ibid.).

Thus, with Euclid decision and the SZEA, zoning and other land-use regulations became an established practice in the U. S. Yet while traditional Euclidian zoning has been a powerful tool for planners and local legislators, it has not been successful at solving many of the problems it was designed for. The most defining characteristic, the creation of use districts separating residential from other uses, has led to much criticism, as this paper will now briefly explore.

Dyble (2010) refers to zoning as a double-edged sword. He claims it has been used in ways to further racism and segregation, has hurt the environment, and prevented regions from working together. The claim is that zoning, starting with the situation in Euclid, was used to privilege certain types of residential construction, primarily single-family homes, while excluding others entirely (Wolf, as cited in Dyble, 2010). Critics, he points out, use Judge Westenhaver's original ruling as evidence of an implicit racism and segregationist undertones in the ordinance. They point to his statement:

[T]he purpose to be accomplished is really to regulate the mode of living of persons ... to classify the population and segregate them according to their income or situation in life .... It is equally apparent that the next step in the exercise of the police power would be to apply similar restricting for the purpose of segregating in like manner various groups of newly arrived immigrants. The blighting of property values and the congestions of population, whenever the colored or certain foreign races invade a residential section, are so well known as to be within judicial cognizance" (Ambler Realty Co. v. Village of Euclid, Ohio, et al., 1924)

Congress, however, has enacted laws to prevent this abuse, primarily the Fair Housing Act. This act "prohibits discrimination in the sale, rental and financing of dwellings based on race, color, religion, sex or national origin" (U. S. Department of Housing and Urban Development). This law, therefore, provides protections to minorities and others, protecting them from zoning ordinances that are discriminatory in nature. Though the Supreme Court determined in Village of Arlington Heights v. Metropolitan Housing Development (1977) that plaintiffs must prove that the local government purposefully designed a discriminatory ordinance (discriminatory intent), the later decision in Town of Huntington, New York v. Huntington Branch, NAACP (1988) shows that a discriminatory result is just as important as intent (disparate-impact). The cases of City of Cleburne, Texas v. Cleburne Living Center, Inc. (1985) and City of Edmonds v. Oxford House (1995) further show the protections granted to protected minorities. Thus, while critics are correct in asserting that land-use controls have been used in a discriminatory manner, congressional efforts have been made to ensure that this practice is not allowed to continue.

The other two issues mentioned by Dyble (2010) - that of adverse environmental effects and the prevention of regions working together - are a bit more problematic. This is due to the fact that federal laws are in place that not only are neutral to these problems, but support them. For example, federal transportation legislation that subsidizes local governments in building highways and public transportation encourage low-density development. To illustrate the problem: in the 1940s only 15% of the U.S. population lived in the suburbs - a number that has increased to 60% in 2000 (Attkisson, 2009). This has contributed to a national increase in commute time, up to an average 38 minutes in 2007 (Ibid.). Further, from 1970 to 1998, the U.S. population grew by 28% while the number of cars increased nearly 50% and the number of vehicle miles traveled nationwide increased by 116% (Daniels & Lapping, 2005). All of these extra vehicles on the road take an environmental and social toll, both from the perspective of emissions and pollution, to a lack of physical exercise by those stuck in congestion.

Therefore, that original Euclid decision, one designed to help combat traffic congestion among other urban problems, has had the exact opposite effect. It has encouraged low-density development and separated land uses, pushing people further and further away from work, schools, churches, and shopping centers. Most people in American now live in suburban development defined by single family homes on large lots, a separation of people from where they work (typically enforced by zoning), elaborate road networks to support this division, and shopping malls, office parks, arterial strip malls, and residential subdivision (Ibid.).

Also, while the Village of Euclid attempted to use land-use controls in an attempt to control growth, the low density developments that have since become popular have in actuality made it difficult to manage growth and provide services to new developments. Attkisson (2009) argues that cities are now geographically larger, yet poorer as many of the wealthiest citizens have moved outside the city limits, no longer contributing to the tax pool. Yet, with a larger geographic footprint, these cities must somehow provide more water, sewerage, fire protection, police services, libraries, schools, recreations facilities, and waste management services (Ibid.). And this is exasperated by the fact that the Euclid decision and the SZEA opened the door for small municipalities to enact land-use regulations without consideration to the region as a whole (Ibid.).

As we have already pointed out, Euclid was a suburb of Cleveland, Ohio. One of primary facts in the case was that the industrial development in Cleveland was extending over into the suburb of Euclid (Village of Euclid, Ohio v. Ambler Realty Co., 1926). Euclid, with its own distinctive and self-elected government, determined to control this development in order to maintain its residential character. One of Ambler's arguments in the case was that Euclid's ordinance "does not, in fact, pursue any rational plan, dictated by considerations of public safety, health and welfare .... On the contrary, it is an arbitrary attempt to prevent the natural and proper development of the land in the Village ..." (Ibid., emphasis added). In effect, Ambler argued that Euclid should consider the needs of Cleveland in its zoning ordinance. Ambler continues:

The municipal limits of the Village of Euclid are, after all, arbitrary and accidental political lines. The metropolitan City of Cleveland is one of the great industrial centers of the United States. If the Village may lawfully prefer to remain rural and restrict the normal industrial and business development of its land, each of the other municipalities circumadjacent may pursue a like course. Thus the areas available for the expanding industrial needs of the metropolitan city will be restricted ... (Ibid.).

Justice Sutherland, in the Euclid ruling, disagreed with Ambler's assessment, at least to the degree to which Ambler argued it. Sutherland recognized that there may be certain situations to which general public interest would outweigh the interests of a municipality (Ibid.). But this would not be it. He reasoned:

[T]he village, though physically a suburb of Cleveland, is politically a separate municipality, with powers of its own and authority to govern itself as it sees fit within the limits of the organic law of its creation and the State and Federal Constitutions. Its governing authorities, presumably representing a majority of its inhabitants and voicing their will, have determined, not that industrial development shall cease at its boundaries, but that the course of such development shall proceed within definitely fixed lines. (Ibid.).

In other words, local municipalities have the ability to enact land-use control without regard to any sort of regional vision or goals and in no regard to the land-use regulations being promoted in adjacent municipalities. And while the Euclid decision leaves open the possibility that there may be some "general public interest" outweighing a local land-use law, it does not mandate that any type of regional planning be done before these laws are enacted.

So far, this paper has documented the origin story of land-use regulations in New York, Euclid, and the SZEA. It then examined many of the problems and criticisms of traditional Euclidian zoning, specifically race, adverse environmental effects (transportation most specifically), and the lack of regional planning and coordination. It is with these issues in mind that this paper will now shift its focus on the batch of land-use regulations termed Smart Growth.

Smart Growth is defined by the American Planning Association (2012) as a development which "supports choice and opportunity by promoting efficient and sustainable land development, incorporates redevelopment patterns that optimize prior infrastructure investments, and consumes less land that is otherwise available for agriculture, open space, natural systems, and rural lifestyles." Attkisson (2009) terms this concept as the traditional neighborhood. He argues that good development is defined by people who have the option of walking to destinations such as work and the grocery store. He states that these developments meet all of a person's needs within a small footprint. These would be mixed-use developments that are literally outlawed in many communities via traditional Euclidian zoning measures (Attkisson, 2009). In contrast to Euclidian zoning, which separates land-uses and has popularized low-density, suburban development, Smart Growth emphasizes denser development. This does not necessarily mean that single-family homes are done away with, but when development of that type occurs, it advocates for smaller lot sizes in walkable developments near schools and other amenities (American Planning Association, 2012).

It would be a mistake to label Smart Growth as a single tool. It is, rather, a set of tools originating from a core set of principles (Ibid.). And while traditional Euclidian zoning has been enacted in many communities with no long-term vision or regard to the surrounding region, these concepts are part of the core principles of Smart Growth. The American Planning Association (2012) lists these principles among others (16 total):

Many communities in the U.S. have adopted land-use regulations in the spirit of Smart Growth. In some places they have been successful, and in other places not so much. The first state in the nation to adopt legislation specifically termed "Smart Growth" was Maryland in 1997 (Daniels & Lapping, 2005). Maryland's law, the Neighborhood Conservation and Smart Growth Act, was designed to limit low-density development in undeveloped areas and, instead, to focus efforts on densely redeveloping existing properties (Ibid.). Maryland's motivation for this policy, according to the state's planning department, was the costs the state would incur in continuing to support sprawling development (Ibid.). The state claimed it would expend an extra $10 billion dollars between 1995 and 2020 if low-density development continued to occur (Ibid.). Maryland's legislation, however, is not restrictive in nature. Rather than telling developers where they cannot build, instead it offers state incentives and grants for redeveloping properties designated by local governments as priority growth areas (Ibid.). Developers may still choose to develop in other locations, but no state money will be expended to support the development (Ibid.). These designated growth areas, or priority funding areas, are also used in several other Maryland programs. For example, the Job Creation Tax Credit offers an incentive to business owners creating at least twenty-five jobs in the designated areas (Ibid.).

Other Maryland programs designated under the act include the Live Where You Work Program, granting a minimum of $3,000 to individuals purchasing homes in older neighborhoods near their jobs; and the Rural Legacy Program, which provides funding for the state to purchase the development rights on land outside the designated growth boundaries to preserve as open space or farmland (Ibid.).

However, policies of this type date back much further than 1997. Hawaii adopted the State Planning Act in 1961 that divided the entire state into four zones: urban, rural, agricultural, and conservation (Ibid.). And while development in Hawaii's tourism industry pushed growth beyond those initial urban zones, most of the state is still located in restricted agricultural and conservation zones (Ibid.).

Another defining example is the town of Ramapo, NY, which passed an amendment to its zoning ordinance in 1969 (Golden v. Planning Board of the Town of Ramapo, 1972). This amendment was a break from traditional zoning laws in that it did not divide land into use districts, but, rather, specified the order in which new developments would be approved (Ibid.). This was due to the fact that its comprehensive master plan called for developments to happen in a certain order, as it would allow for the town to deploy services such as sewerage and water in an efficient manner (Ibid.). Ramapo was sued and the case went so far as the New York appellate court, which ruled in favor of the town (Ibid.).

Oregon, likewise, established land-use rules with these same goals of controlling growth in mind. The Oregon Land Conservation and Development Act of 1973 required local governments to develop comprehensive plans in agreement with state planning goals and objectives (Attkisson, 2009). One of the criteria for these plans is for communities to work together in developing urban growth boundaries that restrict where development may occur (Ibid.). Land located outside the growth boundary may only be used for open space or agricultural uses (Ibid.). The state has final authority over all plans, and plans are periodically reviewed for compliance with state goals by the Land Conservation and Development Commission (LCDC) (Ibid.). The LCDC is responsible for developing the goals, and the local governments are responsible for developing the method of implementation (Ibid.). Oregon's land-use regulations, supported by a coordinated, regional planning effort, have been successful in limiting sprawl and directing growth to established areas. From the mid-1980s to the mid-1990s, Oregon's population grew by 26%, yet the total vehicle miles traveled on Oregon's roadways only increased by 2% (Ibid.). In that same time period, the daily commute time actually decreased by 9% despite this substantial population growth (Ibid.).

A final successful example that will be examined is the state of Florida. Florida, like Oregon, has unique planning and land-use regulations in place and applies these policies from a state-down approach (Ibid.). The state has developed a comprehensive master plan that guides all other state planning documents (Ibid.). Florida has further demarcated regional planning areas that must develop a regional comprehensive plan in agreement with the state plan (Ibid.). And, finally, each local municipality in Florida must develop a comprehensive plan in agreement with the plans of the state, region, and surrounding communities (Ibid.). These local plans are then the basis on which local land-use ordinances are based (Ibid.). This process ensures that all land-use regulations throughout the state are done in a coordinated and cooperative manner.

In addition to this planning hierarchy, Florida has also established a concurrency requirement for new development (Ibid.). This policy, much like the Ramapo zoning ordinance, requires that new development only occur in areas in which local governments already have existing infrastructure in place (Ibid.). The major difference with Ramapo, however, is that Florida, like Maryland, still allows development outside of these already developed areas so long as the developer pays for all public facilities included with the development (Ibid.).

These principles, however, are not always successful. In many communities, for example, the growth boundary has led to a shortage of affordable housing. In Boulder, CO, for instance, it has only contributed to surrounding sprawl (Ibid.). This can be attributed to the fact that Boulder implemented its growth boundary on its own with no coordination with the state or surrounding communities (Ibid.). In this instance, rather than controlling and directing growth within the city limits, new developments simply popped up outside of Boulder's jurisdiction (Ibid.), leading to the same scenario seen with the traditional Euclidian zoning ordinances. This can be attributed to the lack of regional planning and coordination as established in Oregon and Florida (Ibid.). Without these regional agreements and considerations, development simply continues to sprawl to the next unregulated piece of land.

A study of the above communities has lead Attkisson (2009) to two recommendations for the correct implementation of Smart Growth-style land use regulations. He advocates for the establishment of state planning commissions modeled on the LCDC in Oregon. These planning commissions would be empowered with the authority to approve - or disapprove - comprehensive plans throughout the state. They would also be tasked with developing statewide goals and objectives with which all local plans must be in agreement. Commissions should be made up of a mix of environmentalists, corporate leaders, county and municipal elected officials, developers, builders, and planners from every level of government. This would assure, he argues, that the needs and concerns all stakeholders would be represented.

Secondly, Attkisson recommends that states amending their zoning enabling acts to place more emphasis on planning, particularly planning in cooperation and coordination with the state, regional, and neighboring governments. This would help communities such as Boulder as they attempt to control sprawl and reduce growth leapfrogging throughout the community. He also argues that enabling laws should specify that zoning ordinances may not be implemented without the prior establishment of a fully developed comprehensive plan.

To conclude, we have come a long way since Euclid, yet cities and local governments are still fighting with the same problems Euclid sought to solve. Euclid saw massive, uncontrolled development from Cleveland's industrial sector threatening to destroy its residential character. In an effort to control and regulate this growth, it passed a zoning ordinance establishing where certain types of development could take place. And while this solved the problem for this one village, it did not solve the problem for the region, state, or country. It simply pushed the development further out. During Euclid, land was seen as a commodity. Now, nearly 90 years later, it is seen as a diminishing resource (Nolon & Salkin, 2006). Governments must adapt new measures to preserve the resource of land. And they must work in coordination, not competition, with each other. Despite the ideals of the Smart Growth movement, the example of Boulder proves that governments must work in coordination with the region and state if efforts are to be successful. Ramapo, Oregon, Florida, and Maryland have paved the way for new planning processes and land-use regulations that have shown promise in solving this land-shortage issue. However, none of these measures will work unless governments can determine to work together on a regional and state-wide level to solve these problems.

Works Cited

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