Cutting Zoning Down to Size

Reevaluating the Legal Vulnerability of Urban Minimum Lot Sizes

Abstract: Minimum lot sizes are among the most common form of land use regulation in the United States, existing even in those jurisdictions that have not adopted traditional use-based zoning. Although scholarly and judicial attention has focused on the minimums of an acre or more that are typically found in suburban areas, recent research has identified substantial economic benefits to reforming and reducing the lower minimums present in city neighborhoods. This article argues that these minimums, often requiring 5,000 square feet or more per home in areas served by city sewer and water, may be vulnerable to litigation on the basis of principles of uniformity, arbitrariness, and noncompliance with increasingly prescriptive state zoning enabling acts. In doing so, this article reviews the history and case law surrounding minimum lot sizes and proposes a new legal standard for evaluating lot size requirements linked to quantifiable public health and safety criteria. The author also proposes recommendations for state and local legislative reform.

Keywords: housing economics, land use, lot minimums, lot size, property law, public policy, real estate law, urban history, urban planning, zoning, zoning law

JEL codes: K11, K15, K25, L38, N92, O18, P14, P48, Q15, R11, R14, R31, R38, R52