What makes an ordinance unconstitutional

That opinion dripped with upper-middle-class smugness on the moral superiority of suburban living a kind of living, by the way, which did not exist until the twentieth century. Euclid and its ilk were a sharp change from earlier jurisprudence where courts would have found modern zoning unconstitutional under a number of theories.

And, it can even mandate a minimum size of lot. Mathematically, this can only continue for so long, of course. Plus other laws, such as environmental protections, may make some lots unbuildable. All of this raises the cost of homes. Using state constitutions, state zoning statutes, and other limitations of municipal powers, some state courts have nibbled around the edges of over-expansive municipal housing policies. For example, some have declared that state zoning laws do not allow cities to forbid renters from living in homes if homeowners are already allowed in them.

It protects their right to rent out basement apartments and mother-in-law cottages for people other than mothers-in-law. The recent policy successes liberalizing rules for second-unit apartments follow in the footsteps of these sporadic, but real, legal victories. This litigation under state statutes and local ordinances is very important, and those groups should be commended for their work.

The lack of constitutional litigation may be because of a bad experience. The biggest legal victory for housing liberalization in recent decades quickly turned into a bogyman used to scare state courts away from constitutional limits on zoning.

Extensive single-family zoning and other land use tools made it prohibitive to build housing for those of modest means, and the Township even actively tried to eliminate the little existing housing that the poor could afford. Why challenge Euclid when you end up with Mount Laurel? One way to attack a lack of housing is through a comprehensive approach like the plaintiffs pursued in Mount Laurel.

But another way is simply to expand the property rights of individual owners, such as the above example of the family with the furnished basement. Is a basement-apartment lawsuit an attack on zoning? Would challenges like the family with the basement succeed in court? Given current jurisprudence in most, if not all states, the answer is a bit bleak: not often.

My employer, the Institute for Justice , did just that in the fight against eminent domain abuse, highlighting the issue through litigation but also working with a myriad of groups in pushing for successful reform in states across the country.

And that mostly was after we lost at the Supreme Court, in Kelo v. New London. Despite the result, the drama and attention the case provided got the conversation going and led to most of those reforms.

Board of Education , of bringing incremental cases to chip away at the edifice of Jim Crow segregation. A strategy of high-profile litigation in state courts under the banner of property rights, seeking incremental efforts to open up housing laws to more housing units, might have some wins under state constitutions, but, more importantly, would supplement the existing push for the same thing in state legislatures and city halls. Again, this is not to say that no one pursues public interest litigation to expand the availability of housing.

But much more could be done through invoking constitutional protections of basic American liberties to raise the awareness of legal limitations on the amount of housing, and find a few court victories along the way. How do we make that happen? One way is for those who most worry about these issues urbanists and fellow-minded advocates and those who like to sue the government about restrictions to private property mostly libertarian or conservative public interest litigators, like my colleagues at IJ to talk to each other.

Privacy Policy Last modified: January 1, Toggle navigation. An ordinance of an Idaho municipality, adopted in , that subjected a water company to monthly rental fees for the use of its streets invalidly impaired the obligation of contract arising under an ordinance of which granted a predecessor company the privilege of laying water pipes under the city streets without payment of any charge for the exercise of such right. An ordinance of a Nebraska municipality adopted in requiring, without any showing of the necessity therefor, a utility to remove its poles and wires from the city streets invalidly impaired an obligation of contract arising from an ordinance of granting in perpetuity the privilege of erecting and maintaining poles and wires for the transmission of power.

New York city ordinances requiring an express company to obtain a local license, exacting license fees for express wagons and drivers, and requiring drivers to be citizens, to the extent that they extended to interstate commerce, imposed invalid burdens on such commerce. Michigan city municipal ordinance which compelled operator of a ferry between Canadian and Michigan points to take out a license imposed an invalid burden on the privilege of engaging in foreign commerce.

Kentucky municipal ordinance, insofar as it sought to regulate the number of street cars to be run, and the number of passengers allowed in each car, between interstate points imposed an unreasonable burden on interstate commerce. Louis ordinance which levied one-fourth of the cost of paving on property fronting on the street and the remaining three-fourths upon all property in the taxing district according to area and without equality as to depth denied equal protection of the laws.

Accord: Harmon v. Tyler , U. Accord: City of Richmond v. Deans , U. Ohio ex rel. Pontius , U. Resolution of Stark County commissioners in purporting to revoke an electric railway franchise previously granted in perpetuity by appropriate county authorities in amounted to state action impairing the obligation of contract. Justices concurring: McReynolds, White, C. Rates fixed by a Denver ordinance pertaining to the charges to be collected for services by a water company deprived the latter of its property without due process of law by reason of yielding a return of 4.

Justices concurring: Pitney, White, C. A Kentucky city ordinance of purporting to grant a year franchise for a street railway over certain streets to the best bidder impaired the obligation of contract of an older street railway accorded a perpetual franchise over the same street. Justices concurring: Holmes, Pitney, White, C. A Detroit ordinance that compelled street railway company to carry passengers on continuous trips over franchise lines to and over nonfranchise lines, and vice versa, for a fare no greater than its franchises entitled it to charge upon the former alone impaired the obligation of the franchise contracts; and insofar as its enforcement would result in a deficit, also deprived the company of its property without due process.

Justices concurring: Day, Pitney, White, C. A Los Angeles ordinance authorizing city to establish lighting system of its own could not effect removal of fixtures of a lighting company occupying streets pursuant to rights granted by a prior franchise without paying compensation required by Due Process Clause.

A Houston ordinance was void because the rates it fixed were confiscatory and deprived the utility of its property without due process of law. Justices concurring: McKenna, White, C. Fares prescribed by an ordinance of Kentucky city were confiscatory and deprived the utility of property without due process of law.

Justices concurring: Sutherland, Taft, C. A Portland, Oregon, ordinance that exacted a license fee and a bond for insuring delivery from solicitors who go from place to place taking orders for goods for future delivery and receiving deposits in advance was invalid as unduly burdening interstate commerce when enforced against solicitors taking orders for an outofstate corporation which confirmed the orders, shipped the merchandise directly to the customers, and permitted the solicitors to retain the deposited portion of the purchase as compensation.

An ordinance of Louisiana municipality that exacted license as a condition precedent for operation of a ferry across boundary waters separating two states imposed an invalid burden on interstate commerce. A New Jersey municipal ordinance that compelled use of railroad station grounds for a public hackstand without compensation deprived the railroad of property without due process. An Indiana municipal ordinance that exacted from motor bus operators a license fee adjusted to the seating capacity of a bus could not be validly enforced against an interstate carrier, for the fee was not exacted to defray expenses of regulating traffic in the interest of safety, or to defray the cost of road maintenance or as an occupation tax imposed solely on account of intrastate business.

A municipal Washington zoning ordinance that conditioned issuance of a permit to enlarge a home for the aged in a residential area on the approval of the owners of two-thirds of the property within feet of the proposed building violated due process because the condition bore no relationship to public health, safety, and morals and entailed an improper delegation of legislative power to private citizens. A Griffin, Georgia, ordinance that exacted a permit for the distribution of literature by hand or otherwise violated freedom of press as guaranteed by the Due Process Clause of the Fourteenth Amendment by imposing censorship in advance of publication.

A Jersey City ordinance forbidding distribution of printed matter and the holding, without permits, of public meetings in streets and other public places withheld freedom of speech and assembly contrary to the Due Process Clause of the Fourteenth Amendment. Justices dissenting: McReynolds, Butler. Irvington, New Jersey, ordinance prohibiting solicitation and distribution of circulars by canvassing from house to house, unless licensed by the police, violates the First Amendment as applied to one who delivered religious literature and solicited contributions door to door.

Justices concurring: Hughes, C. The New York City sales tax cannot be collected on sales to vessels engaged in foreign commerce of fuel oil manufactured from imported crude petroleum in bond. Thus enforced, the city ordinance is invalid as an infringement of congressional regulations of foreign and interstate commerce Art. A Shasta County, California, ordinance making it unlawful for any person to carry or display any sign or badge in the vicinity of any place of business for the purpose of inducing others to refrain from buying or working there, or for any person to loiter or picket in the vicinity of any place of business for such purpose, violates freedom of speech and press guaranteed by the Due Process Clause of the Fourteenth Amendment.

A Dallas ordinance made it unlawful to throw any handbills, circulars, cards, newspapers or any advertising material upon any street or sidewalk in the city. As applied, the ordinance prohibited the dissemination of information, a denial of the freedom of the press, and where the handbills contained an invitation to participate in a religious activity, a denial of freedom of religion, in violation of the First and Fourteenth Amendments.

A Paris City ordinance making it unlawful for any person to solicit orders or to sell books, wares or merchandise within the residential portion of Paris without a permit is invalid as applied. The ordinance abridges the freedom of religion, speech, and press guaranteed by the Fourteenth Amendment in that it forbids the distribution of religious publications without a permit, the issuance of which is in the discretion of a municipal officer.

An Opelika, Alabama, ordinance imposing licenses and taxes on various businesses cannot constitutionally be applied to the business of selling books and pamphlets on the streets or from house to house. As applied the ordinance infringes liberties of speech and press and religion guaranteed by the Due Process Clause of the Fourteenth Amendment. Justices concurring: Stone, C.

An ordinance of Struthers, Ohio, made it unlawful for any person distributing handbills, circulars, or other advertisements to ring the door bell, sound the door knocker, or otherwise summon occupants of any residence to the door for the purpose of receiving such handbills, etc.

The ordinance, by failing to distinguish between householders who are willing to receive the literature and those who are not, extended further than was necessary for protection of the community. The ordinance violated the Commerce Clause because it discriminated against outofstate merchants in favor of local ones and operated as a barrier to the introduction of out-of-state merchandise. A New York City law provided that, for the privilege of carrying on within the city any trade, business, or profession, every person shall pay a tax of one-tenth of one per centum upon all receipts received in or allocable to the city during the year.

The excise tax levied on the gross receipts of a stevedoring corporation is invalid as a burden on interstate and foreign commerce in violation of the Commerce Clause. Justices concurring: Vinson, C. A Lockport ordinance forbidding use of sound amplification excepted public dissemination, through loudspeakers, of news, matters of public concern, and athletic activities, provided that the latter be done under permission obtained from the Chief of Police.

The ordinance is unconstitutional on its face as a prior restraint on speech, in violation of the First Amendment, made applicable to the states by the Fourteenth Amendment. No standards were prescribed for the exercise of discretion by the Chief of Police. A Chicago ordinance proscribed the making of improper noises or other conduct contributing to a breach of the peace. Petitioner was convicted of violating said ordinance by reason of the fact that he had addressed a large audience in an auditorium where he had vigorously criticized various political and racial groups as well as the disturbances produced by an angry and turbulent crowd protesting his appearance.

At this trial, the judge instructed the jury that any behavior that stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, violates the ordinance. As construed and applied by the trial court the ordinance violates the right of free speech guaranteed by the First Amendment and made applicable to the states by the Fourteenth Amendment.

A local ordinance forbade the holding of such meetings without a license but contained no provisions for revocation of such licenses and no standard to guide administrative action in granting or denying permits. Appellant was convicted for holding religious meetings without a permit. The ordinance was held to grant discretionary power to control in advance the right of citizens to speak on religious issues and to impose a prior restraint on the exercise of freedom of speech and religion.

A Madison, Wisconsin, ordinance prohibited the sale of milk as pasteurized unless it had been processed and bottled at an approved plant within a radius of five miles from the central square of Madison. An Illinois corporation, engaged in gathering and distributing milk from farms in Illinois and Wisconsin was denied a license to sell milk within the city solely because its pasteurization plants were more than five miles away.

The ordinance unjustifiably discriminated against interstate commerce in violation of the Commerce Clause. Marshall City, Texas, motion picture censorship ordinance, as enforced, was unconstitutional as denying freedom of speech and press protected by the Due Process Clause of the Fourteenth Amendment.

Thus applied, the ordinance was held to violate the First and Fourteenth Amendments, including the Equal Protection Clause. Section of the New York City Charter provides that whenever a city employee invokes the privilege against self-incrimination to avoid answering inquiries into his official conduct by a legislative committee, his employment shall terminate.

The summary dismissal thereunder, without notice and hearing, of a teacher at City College who was entitled to tenure and could be discharged only for cause and after notice, hearing and appeal, violated the Due Process Clause of the Fourteenth Amendment.

Invocation of the privilege to justify refusal to answer questions of a congressional committee concerning membership in the Communist Party in — cannot be viewed as the equivalent either to a confession of guilt or a conclusive presumption of perjury.

Justices concurring: Black concurring specially , Douglas concurring specially , Warren, C. Atlanta ordinance that reserved certain public parks and golf courses for white persons only violated the Equal Protection Clause of the Fourteenth Amendment. As applied to a Georgia corporation that solicits orders in the city and consummates purchases by deliveries originating in Georgia, the tax is invalid under the Commerce Clause.

Justices concurring: Warren, C. Los Angeles Municipal Code made it unlawful for a person who has been convicted of a crime punishable in California as a felony to remain in the city longer than five days without registering with the Chief of Police. Applied to a person who is not shown to have had actual knowledge of his duty to register, this ordinance violates the Due Process Clause of the Fourteenth Amendment of the Constitution.

Issuance or refusal may occur after the character of the applicant, the nature of the organization in which memberships are to be solicited, and its effect upon the general welfare of the City have been considered. Appellant had been convicted for soliciting memberships in a labor union without a license.

The ordinance is void on its face because it makes enjoyment of freedom of speech contingent upon the will of the Mayor and City Council and thereby constitutes a prior restraint upon that freedom contrary to the Fourteenth Amendment of the Constitution. A Los Angeles City ordinance making it unlawful for any bookseller to possess any obscene publication denies him freedom of press, as guaranteed by the Due Process Clause of the Fourteenth Amendment, when it is judicially construed to make him absolutely liable criminally for mere possession of a book, later adjudged to be obscene, notwithstanding that he had no knowledge of its contents.

Justices concurring: Clark, Warren, C. Little Rock and North Little Rock, Arkansas, ordinances that, as a condition of exempting charitable organizations from an annual business license tax, required the disclosure of the identity of the officers and members of said organizations, as enforced against the N.

Los Angeles ordinance that forbade distribution under any circumstance of any handbill that did not have printed on it the name and address of the person who prepared, distributed, or sponsored it was void on its face as abridging freedom of speech and press guaranteed by the Due Process Clause of the Fourteenth Amendment. The ordinance was not limited to identifying those responsible for fraud, false advertising, libel, disorder, or littering.

San Francisco ordinance authorizing warrantless entry of residential property to inspect for housing code violations violates Fourth and Fourteenth Amendments. Seattle ordinance authorizing warrantless entry of commercial property to inspect for fire code violations violates Fourth and Fourteenth Amendments. Justices dissenting: Harlan, Fortas, Stewart. Dallas ordinance providing for classification of motion pictures as not suitable for viewing by young persons does not provide adequate standards and is void for vagueness.

Justices dissenting: Harlan. Amendment to Akron, Ohio city charter providing that any ordinance enacted by council dealing with discrimination in housing was not to be effective until approved by referendum whereas no other enactment had to be so submitted violated Equal Protection Clause.

Justices concurring specially: Harlan, Stewart Justices dissenting: Black. Cincinnati ordinance making it unlawful for three or more persons to assemble on a sidewalk and conduct themselves in a manner annoying to passers-by is unconstitutionally vague and violates rights to assembly and association. A Jacksonville, Florida vagrancy ordinance is void for vagueness because it fails to give a person fair notice that his contemplated conduct is forbidden, because it encourages arbitrary and erratic enforcement of the law, because it makes criminal activities which by modern standards are normally innocent, and because it vests unfettered discretion in police.

A Chicago ordinance prohibiting all picketing within a certain distance of any school except labor picketing violates the Equal Protection Clause by impermissibly distinguishing between types of peaceful picketing.

A Columbus, Ohio ordinance prohibiting use of abusive language toward another as applied by court below without limitation to fighting words cannot sustain conviction.

New Orleans ordinance interpreted by state courts to punish the use of opprobrious words to police officer without limitation of offense to uttering of fighting words is invalid. A Jacksonville, Florida ordinance making it a public nuisance and a punishable offense for a drive-in movie theater to exhibit films containing nudity, when the screen is visible from a public street or place, is facially invalid as an infringement of First Amendment rights.

An Oradell, New Jersey ordinance requiring that advance written notice be given to local police by any person desiring to canvass, solicit, or call from house to house for a charitable or political purpose was held void for vagueness. Justices concurring: Burger, C. An East Cleveland zoning ordinance that limited housing occupancy to members of single family and restrictively defined family so as to prevent an extended family, i. Justice dissenting: Rehnquist.

A court of appeals decision voiding on Commerce Clause grounds an ordinance of St. Mary Parish, Louisiana requiring non-local job seekers and local workers seeking new jobs to obtain an identification card, to provide fingerprints and a photograph, and to pay a fee, is summarily affirmed.

A court of appeals decision invalidating on First Amendment grounds an ordinance of Southampton, New York barring door-to-door solicitation without prior consent of the occupant, but excepting canvassers who have lived in the municipality at least six months, is affirmed.

A Mount Ephraim, New Jersey zoning ordinance construed to bar the offering of live entertainment within the township violated the First Amendment. A complex ban on billboard displays within the City of San Diego, excepting certain onsite signs and 12 categories of particular signs, violates First Amendment.

A court of appeals decision affirming a federal district court injunction of an Albuquerque, New Mexico ordinance, as a violation of the First Amendment, is summarily affirmed.

The ordinance regulated solicitation by charitable organizations but exempted solicitation by religious groups for religious but not for secular purposes. Court of Appeals for the Second Circuit, is summarily affirmed. City of Akron v. Akron Center for Reproductive Health , U.

A Cleburne, Texas zoning requirement of a special use permit for operation of a home for the mentally retarded in an area where boarding homes, nursing and convalescent homes, and fraternity or sorority houses are permitted without such special use permits is a denial of equal protection as applied, the record containing no rational basis for the distinction.

Justices concurring specially: Marshall, Brennan, Blackmun. Lakewood, Ohio ordinance vesting in the mayor unbridled discretion to grant or deny a permit for location of news racks on public property violates the First Amendment.

Justices concurring specially: Blackmun, Brennan, Stevens. The ordinance fails to place a time limit within which the licensing authority must act, and fails to provide a prompt avenue for judicial review. The ordinance violates the requirement that a legislature establish minimal guidelines for law enforcement. Justice Thomas found that the Second Amendment was applicable to the states under the Privileges or Immunities Clause.

Justices concurring: Roberts, C. A Los Angeles ordinance that gives police the ability to inspect hotel registration records without advance notice and arrest hotel employees for noncompliance is facially unconstitutional. Inspections under the ordinance constitute administrative searches for purposes of the Fourth Amendment and, as such, may only proceed if the subject of the search has been afforded an opportunity to obtain precompliance review before a neutral decision-maker.

Weston v. City Council of Charleston , 27 U. Cannon v. City of New Orleans , 87 U. Murray v. City of Charleston , 96 U. Moran v. City of New Orleans , U. New Orleans Gas Co. Louisiana Light Co. New Orleans Water-Works Co. Rivers , U. Yick Wo v. Hopkins , U. Leloup v. Port of Mobile , U. McCall v. California , U. Brennan v. City of Titusville , U.

City of Walla Walla v. Walla Walla Water Co. City of Los Angeles v. Los Angeles City Water Co. City of Detroit v. Caldwell v. North Carolina , U. Postal Telegraph-Cable Co. Borough of Taylor , U. City of Cleveland v. Cleveland City Ry. Dobbins v. City of Los Angeles , U.

Cleveland Electric Ry. Rearick v. Pennsylvania , U. Mayor of Vicksburg v. Vicksburg Waterworks Co. Londoner v. City of Denver , U. City of Minneapolis v. Street Ry. Eubank v. City of Richmond , U. Williams v. City of Talladega , U. Grand Trunk Western Ry. City of South Bend , U. City of Owensboro v. Cumberland Telephone Co. Boise Water Co. Boise City , U. Old Colony Trust Co.

City of Omaha , U. Adams Express Co. City of New York , U. Accord: U. Express Co. City of Sault Ste. Marie v. International Transit Co. South Covington Ry. City of Covington , U. Gast Realty Co. Schneider Granite Co. Buchanan v. Warley , U. City of Denver v. Denver Union Water Co. City of Covington v.

South Covington St.