A Taking by Any Other Name: Why Exclusionary Zoning Should Be Classified as a Per Se Taking

The housing affordability crisis in U.S. cities, particularly on the West Coast, has been well publicized in recent years, and the search for solutions has drawn together allies from across the ideological spectrum. While various cities and states have rolled out many types of reforms, there remains a widespread regulatory failure preventing the adaptation of cities to modern demands. A primary culprit is exclusionary zoning: plot-by-plot designation of which types of structures can be built on a piece of property— particularly which types of structures are absolutely prohibited from being built—and the broad definitional standards to which those structures must conform. Many of the regulatory policies behind the housing crunch can be tied back to the allowance of exclusionary zoning in the Supreme Court’s 1926 case, Euclid v. Ambler, in which the Court determined for the first time that exclusionary zoning was a constitutional exercise of the police power and not a taking. However, recent Supreme Court opinions in Horne v. Dep’t of Agriculture and Cedar Point Nursery v. Hassid have given new life to the takings clause.\nThis Article will argue that the Supreme Court should continue reinvigorating the takings clause by overruling Euclid, and instead hold that exclusionary zoning is a per se taking for public purposes. Under this rule, states should either compensate landowners accordingly or adjust their zoning policies to permit owners to develop their property to its highest and best use. In this Article, I first highlight how zoning has impacted the development of relatively young West Coast cities through the example of Seattle, Washington. Then, I argue that current takings clause jurisprudence— which centers on the distinction between regulatory and per se takings—leads to illogical and unjustifiable results when applied to the zoning context. I argue that the court should abandon the regulatory/per se taking distinction, and instead adopt a per se takings rule. I will explain how this would operate for exclusionary zoning, respond to several likely objections, and describe how such changes could impact the future development of Seattle.\nThis is an updated version dated October 23, 2024. This version clarifies Richard H. Chused’s argument, cited on page 16. Professor Chused argues that the rationale behind Euclid is properly derived from and embedded with the racism of the Lochner era in which the case was decided, not on class as the article suggested. See Richard H. Chused, Euclid’s Historical Imagery, 51Case W. Rsrv. L. Rev. 597, 597 (2001).