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When New York City adopted America’s first comprehensive zoning code in 1916, it created only three land-use categories: residence, business, and industry. While areas designated for residence were protected from the intrusion of new commercial or industrial uses, all forms of residence were permitted — including boarding houses, multiple-dwellings, and tenements.

The zoning code emphasized two kinds of protection for residences: first, protection from the impacts of commercial and industrial traffic, odors, smoke, deliveries, and garbage; and second, protection from the severe financial loss that could result from incompatible commercial or industrial uses destroying the residential utility of a site.

In the 1920s a number of municipalities expanded on New York’s single “residence” district by creating districts limited to development for single-family-detached homes only. The courts upheld these ordinances based on: (1) a public safety rationale (i.e., the risk of fire would be reduced because there would be fewer buildings, located farther apart, housing fewer families per acre); and (2) the premise that single-family-detached residence districts would induce good citizenship through the encouragement of home ownership.

The public safety rationale was constitutionally sound as it was founded on physical conditions capable of being proven to bear a direct relationship to public health and safety — preventing the extreme congestion commonly associated with the practices of apartment and tenement house construction of that era.

However, the second premise, that single-family districts would foster good citizenship by encouraging home ownership, was based on a faulty presumption. It presumed that single family-detached homes would be owner-occupied. But this was not a requirement of single-family-only zoning districts. Moreover, as time would prove, the courts would not look favorably on attempts by municipalities to specify conditions of occupancy (rental, ownership, lease, etc.) in their zoning codes.

Even more significantly, the presumption that single-family-only districts would be solely occupied by home owners has not been borne out. In metropolitan areas throughout the country, block-by-block surveys indicate large numbers of single-family detached units which are renter, not owner, occupied. …

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