In a 2021 Harvard Law Review paper, Maureen Brady explores the early history of exclusionary zoning and prohibitions on multifamily housing as they evolved from 19th century private tort law and “nuisance covenants” that were inserted into property deeds in growing US cities.
Although legal scholars typically point to Euclid v. Ambler (1926) as the enshrinement of exclusionary zoning, Brady finds its roots “not within constitutional jurisprudence, nor within natural law or political theory, but rather deep within private law, at the intersection of property, contract, and tort.”
- Modern land use and zoning laws in the US trace their origins to covenants – restrictions in property deeds – to restrict the use of neighboring properties.
- As apartment construction accelerated in cities, landowners used covenant law unsuccessfully to exclude multifamily housing before turning to public law.
- The origin of zoning restrictions in private tort and deed restrictions may help explain why exclusionary zoning has proven politically popular among wealthy property owners.