Historic PAS Report Series
PAS published its first Information Report in 1949. To celebrate this history, each month we're presenting a new report from the archives.
We hope you enjoy this month's fascinating snapshot of a planning issue of yesteryear.
AMERICAN SOCIETY OF PLANNING OFFICIALS
1313 EAST 60TH STREET — CHICAGO 37 ILLINOIS
|Information Report No. 37||April 1952|
Minimum Requirements for Lot and Building Size
More and more, communities are requiring large minimum lot sizes in restricted residential districts and many are imposing minimum area requirements for dwellings despite the somewhat questionable legality of such measures. Especially in suburban communities bordering large metropolitan centers, the desire to preserve some of the assets of semi-rural living such as adequate space, low density and rambling buildings, has led to the incorporation of provisions such as these in zoning ordinances, building and housing codes and subdivision regulations. Ordinances requiring minimum lot sizes of one-half acre or more per family or ordinances requiring minimum building floor areas of 1,000 square feet or more are no longer uncommon.
The body of law with respect to such provisions is also growing, as each case adds new precedents and new arguments. To what extent are such requirements based upon a reasonable exercise of the police power? To what extent are they related to the goals of health, safety and welfare? Or to what extent has the motivation for such regulations come from the desire of wealthier groups to exclude less wealthy groups from their district or their community? Is the aim economic segregation? Where does the proper exercise of police power for the good of the community end?
The scope and extent of the police power is continually being re-evaluated by the courts and the line between "proper" and "specious" exercise is shifting. There are few areas in zoning where this line is as uncertain and subject to change as in the area of minimum lot and building size requirements. This bulletin will trace both the development of court precedent and the types and extent of such regulations in municipal ordinances.
Minimum Lot Size
The power of communities to regulate the use, height, coverage and setback of buildings and the density of residential development is firmly established by law. In recent years, there has been little questioning of the right of municipalities to regulate residential density, with its clear relationship to light and air and fire protection. In some state zoning enabling acts the power to regulate density is specifically delegated, and a great number of ordinances state directly the number of families per acre to be permitted in the various residential districts. More common, however, are the ordinances which regulate density indirectly through provisions such as (1) type of structure; (2) lot dimensions, frontage, depth, yards; and (3) minimum lot area per family.
The justification for regulating density is similar to that for the regulation of height and coverage. Indirectly, the control of density may insure adequate light and air, may eliminate congestion with its attendant fire and traffic hazards, and may contribute to the creation of a neighborhood of pleasing homogeneity. A more positive reason for controlling density is that such control permits adequate planning of community facilities and utilities on the basis of the number of families per acre. Where density is regulated, it is often more possible to predict the future requirements for school facilities, for sewer and water system capacities, and for the many other facilities affected by population density.
Although the right to control density is securely held and is seldom questioned, certain standards of density have been questioned. How large a minimum lot area per family may a community require and still have its zoning ordinance sustained as reasonable by the courts? Bassett, in the last revision of his book, Zoning, published in 1940, states that density may be regulated by specifying the allowable number of families per acre of land.
"No prospect of trouble arises in reducing the allowable number to three or four families per acre. It is not difficult to show the court that such a regulation has a substantial relation to fire risk, light and sunlight, circulation of air, annoyance from noise, and danger of contagion. The substantial relation ceases, however, when unnecessarily large building plots are required. The question sometimes arises whether these density regulations can be used to preserve the surroundings of large estates by preventing the building of nearby houses on comparatively small tots. For instance, a regulation requiring two acres for each family might be a protection to surrounding large estates, but in case of a law suit, could the municipality show that a house for one family on two acres of land contributed to the safety and health of the community to a greater degree than such a house on one acre of land? Three families to the acre is safe. Beyond that is doubtful. Some point still beyond that is unlawful for the reason that there is no substantial relation between the regulation and the health and safety of the community." (italics ours)*
Despite this view expressed by one of the leading authorities in zoning, the courts have upheld regulations of densities lower than three families per acre. Courts in various states have upheld zoning regulations requiring minimum lot areas per family of one, two, and even three acres. Since the distinction between welfare and specious zoning is often hard to draw, a discussion of the relatively few court cases in which minimum lot size requirements of one-half acre or more have been upheld may reveal some basis for the distinction.
Court Cases Involving Large Minimum Lot Size Requirements
One of the classic cases in minimum lot area litigation is Simon v. Town of Needham, Supreme Court of Massachusetts, May 27, 1942, as reported in 42 N. E. 2d 516. In this case, the court found that a minimum lot requirement of one acre in the single family residence district was reasonable and valid, and based its decision on the grounds that there would be less noise and traffic, less danger of fire, greater opportunity for rest and relaxation, and greater facilities for children to play on the premises and not in the streets. It further found that other towns in the vicinity of Needham had adopted restrictions of a similar nature, and that the cost of servicing the area would be considerably less at the lower density (although the court stated that the zoning ordinance could not be used primarily as a device to maintain a low tax rate). Thus, the requirement was upheld not only upon the ground of health and safety, but upon the perhaps more tenuous ground of amenity.
Another important case in which a minimum lot area of 40,000 square feet was upheld is Gerard C. Gignoux et al., v. Village of Kings Point, and J. Edward Meyer et al., v. Village of Kings Point, Supreme Court Nassau County, June 22, 1950, 99 N.Y.S. 2d 280. In this case, the court upheld minimum lot requirements of 20,000 and 40,000 square feet as reasonable in an exclusively residential village.
The Village of North Hills adopted a zoning ordinance whereby almost the entire territory of the village was placed in a two-acre minimum single-family residence zone. This ordinance came to litigation several times. In the case of Elbert v. Village of North Hills, Supreme Court of Nassau County, April 1941, 28 N.Y.S. 2d 317, the court first upheld this minimum, stating that the plaintiff had not demonstrated that he could not use his property in accordance with the zoning restrictions, and that "besides the preservation of public health, safety and morals, aesthetic considerations and the desire to maintain the quietude and rural character of a community have been approved as proper motivation for local regulation."(italics ours) In 1949, the provision again came into question in the case of Dilliard v. Village of North Hills, Supreme Court Nassau County, September 20, 1949, 91 N.Y.S. 2d 542. In this case, the court held the minimum lot area of two acres to be unconstitutional, citing the section of Bassett quoted above, and reaching the conclusion that whereas three families to the acre is safe, beyond that is doubtful. The court found that the zoning ordinance in question had no relation to health, welfare or morals. This was appealed to the Supreme Court Appellate Division on February 14, 1950. The appealed case, Dilliard et al., v. Village of North Hills, appears in 94 N.Y.S. 2d 715. The judgment of the lower court was reversed when the Appellate Division held the regulation to be valid, saying in part:
"In the light of the location and character of the village, it was within defendant's legislative province to determine, in the absence of proof of superior public need . . . that the two-acre restriction is justifiable as an elastic application of police power . . . nor is the restriction invalid with respect to the particular parcel owned by the plaintiffs."
A minimum lot area of three acres was upheld recently by the Supreme Court of Missouri, in the case of Flora Realty and Investment Company v. City of Ladue, April session, 1951, 246 S.W. 2d 771. The zoning ordinance of the city of Ladue specifies a three-acre requirement in the single-family Residence District A. The testimony in behalf of the city of Ladue showed that the plaintiff's property was completely surrounded by land similarly zoned and restricted; that the school system had been planned for a density of population based upon the three-acre minimum; that the fire-fighting system had also been based on the same standard; that the streets in the area were narrow and could not carry traffic for a more highly dense development; and that this was the best residential area in the St. Louis region. The Supreme Court confirmed the decision of the lower court, and upheld the constitutionality of the ordinance.
Zoning Ordinance Requirements
Despite the fact that legal precedent has been established only recently, large numbers of communities have required minimum lot areas of 20,000, 40,000 square feet, one, two, and even five and more acres for many years. The following table summarizes some of the large lot size requirements in selected zoning ordinances. As can be readily seen, only a minute fraction of these requirements have ever come to litigation.
Zoning Ordinance Requirements for Minimum Lot Sizes of 20,000 Square Feet or Greater
|Community||District||Lot Area Required Per Family|
|Arapahoe County, Colorado||A2||2 and 1/2 acres|
|Bedford, Massachusetts||40,000 sq. ft.|
|Bedminster Township, New Jersey||5 acres|
|Brookline, Massachusetts||40,000 sq. ft.|
|Canton, Massachusetts||40,000 sq. ft.|
|Carlisle, Massachusetts||1 acre|
|Cherry Hills Planning Dist., Colo.||R-A1||1 acre|
|Colorado Springs, Colorado||Garden Homes Zone||1/2 acre|
|Residential Estates||20, 000 sq. ft.|
|Concord, Massachusetts||40,000 sq. ft.|
|Cook County, Illinois||R-1||5 acres|
|R-2||40,000 sq. ft.|
|Cortlandt, New York||R-80||80,000 sq. ft.|
|R-40||40,000 sq. ft.|
|R-40a||40,000 sq. ft.|
|R-20||20,000 sq. ft.|
|Croton-on-Hudson, N. Y.||R-40||40,000 sq. ft.|
|R-20||20,000 sq. ft.|
|R-10||10,000 sq. ft.|
|Dover, Massachusetts||1 acre|
|El Paso County, Colo. (proposed)||Forest Zone||5 acres|
|Garden Home Zone||1/2 acre|
|R- Residence||20,000 sq. ft.|
|Greenwich, Connecticut||RA4||4 acres|
|Ladue, Missouri||R-A||3 acres|
|R-C||30,000 sq. ft.|
|Lake County, Illinois||R-1||5 acres|
|Lincoln, Massachusetts||40,000 sq. ft.|
|Longmeadow, Massachusetts||1 acre|
|Los Angeles, California||A-1||5 acres|
|A-2||20,000 sq. ft.|
|Lower Merion Township, Pa.||R-1||30,000 sq. ft.|
|R-2||18,000 sq. ft.|
|Maryland-Washington Regional Dist. (Prince George's County, Md.)||Rural Residential||20,000 sq. ft.|
|Mequon, Wisconsin||R-A||100,000 sq. ft.|
|R-B||40,000 sq. ft.|
|Miami Beach, Florida||RAA||40,000 sq. ft.|
|Milton, Massachusetts||40,000 sq. ft.|
|Needham, Massachusetts||1 acre|
|North Hills, New York||2 acres|
|Oklahoma County, Oklahoma||R-6||20,000 sq. ft.|
|Old Westbury, New York||R-B||1 acre|
|Oyster Bay, New York||A||2 acres|
|River Hills, Wisconsin||5 acres|
|San Diego County, California||E-1 Estates||1 acre|
|Scarsdale, New York||1 acre residence||1 acre|
|other residence||20,000 sq. ft.|
|Seekonk, Massachusetts||62,500 sq. ft.|
|Sherborn, Massachusetts||1 acre|
|Sierra Madre, California||Resort||5 acres|
|Somers, New York||R-O2||40,000 sq. ft.|
|R-O1||80,000 sq. ft.|
|Southampton, New York||RO1||40,000 sq. ft.|
|Stamford, Connecticut||RE-3||3 acres|
|R-20||20,000 sq. ft.|
|Village of Kings Point, New York||40,000 sq. ft.|
|Warwich, Rhode Island||AA||40,000 sq. ft.|
|Watchung, New Jersey||60,000 sq. ft.|
|Weston, Massachusetts||40,000 sq. ft.|
|Westwood, Massachusetts||40,000 sq. ft.|
|Yorktown, New York||Single family residence||40,000 sq. ft.|
Requirements in Subdivision Regulations
Whereas large minimum lot requirements in zoning ordinances may be defended on the grounds of safety, amenity, and occasionally health, large lot requirements in subdivision regulations are primarily justified by their close relation to health. Fairly common is the provision that where proper connections to community sewer and water systems are not feasible because of topography or the location of the subdivision, larger lots must be provided so that individual water and sewage disposal systems may be safely located within the lot area. The dimensions of the lot are thus partially dictated by certain technological requirements. The clear relationship between the size of lot and health requirements is further substantiated by the fact that often subdivision regulations will specify that approval of the local health board must be obtained before plats will be accepted. Some regulations grant even greater discretionary powers to the health board, by permitting the health commissioner to set the minimum lot size individually in each particular case. In still other communities, the health code itself specifies the minimum lot size required in areas not serviced by central water and sewer systems.
The commonly accepted standards for lot sizes may be summarized as follows:
Two families to the acre where both water and sewage systems are lacking.
Four families to the acre where either water or sewer systems are lacking.
Greater density where both facilities are provided.
The treatment in the subdivision regulations of Abingdon, Virginia, is fairly typical. Where both sewer and water connections are possible, the minimum lot size required is 6,000 square feet. If it is not feasible to maintain either sewer or water connections, the minimum lot size is raised to 10,000 square feet, and where connection with neither sewer nor water system is feasible, the minimum lot area is further increased to 20,000 square feet. All installations of individual water or sewage disposal facilities are subject to the approval of the county health officer who may vary the standards where necessary.
The subdivision regulations of Hamilton County, Ohio, passed in 1948, establish similar requirements. Where no sewer connections are possible, either now or in the future, a minimum lot area of 20,000 square feet must be provided. Where sewers have been constructed but are not yet attached to the system and where septic tanks must be used temporarily, the minimum lot area is reduced to 10,000 square feet. The regulations further provide that "in the case of individual septic tanks, a greater area and frontage may be required by the planning commission if, in the opinion of the county engineer or county health commissioner, soil, topography, or other conditions indicate the necessity therefor."
The Montgomery County, Ohio, subdivision regulations specify a similar standard, with 20,000 square feet being required where neither public water nor sewer connections are feasible; 10,000 square feet where water is provided but no sewerage system; and 7,500 square feet where both water and sewers are provided.
Somewhat different phrasing is found in the Baltimore County subdivision regulations of 1949. When a lot is outside the metropolitan district and faces the prospect of permanent lack of sewers, the lot size must be 20,000 square feet. If the lot is within the metropolitan district, and connection is made or septic tanks are used only temporarily, the minimum lot size is 10,000 square feet. Where neither sewer nor water connections are provided, 20,000 square feet is the minimum.
Even greater lot sizes are required by the Fauquier County, Virginia, subdivision regulations. Where an area is not supplied with sewers or water, lots must be 30,000 square feet. Where either sewer or water connections are provided the lot must be 15,000 square feet, and where both sewer and water are available, the minimum lot size need be only 7,000 square feet. Further, "if in the opinion of the county, circumstances in a particular area make a larger square footage advisable, the planning commission may require whatever increase in square footage appears necessary."
The subdivision regulations for Millington, Tennessee, control minimum size of lot in the following manner:
"33.2 Minimum Size
The size and shape of lots shall be such as the Planning Commission deems appropriate for the type of building development contemplated. Lots to be used primarily for residential purposes and served by municipal water and sewerage must have a minimum area of ten thousand (10,000) square feet, and have a minimum lot width, at the building line, of seventy (70) feet. Lots in areas not served by public water and sewerage either constructed or planned, must have a minimum area of twenty thousand (20, 000) square feet, and have a minimum lot width, at the building line, of eighty (80) feet.
33.21 Minimum Lot Dimensions
|Lots||Width at Bldg. Line||Lot Area Per Family (sq. ft.)|
|With water and sewerage||70 feet||10,000 sq. ft. single family|
|5,000 sq. ft. each additional family|
|Without water and sewerage||80 feet||20,000 sq. ft. single family|
|10,000 sq. ft. each additional family"|
Among the other communities which have regulations of a similar nature in their subdivision regulations or zoning ordinances are the Washington-Maryland Regional District in Prince George's County, Maryland; Danville, Illinois: Oklahoma City, Oklahoma; King County, Washington; Bloomfield Hills, Michigan; Lake Forest, Illinois; and Sacramento County, California.
Control of lot dimensions in subdivisions is not confined to subdivision regulations. State and county codes may often be used to establish standards for lot sizes. In New York State, the Public Health Law, Chapter 5, Section 89, requires that before land is subdivided for the residential use of ten or more families, a plot of the area showing the methods proposed for the water supply and sewage disposal must be approved by the Commissioner of Health. The recording and registering of any subdivision map or plat is not permitted unless the approval of the health officer has been obtained. In Westchester County, New York, a similar procedure must be followed, even in cases where the subdivision involves fewer than ten lots. The Sanitary Code of the Westchester County Department of Health, Article 9, imposes minimum lot size requirements in subdivisions where public water and sewer systems are not feasible. The code requires a subdivider to submit the proposed subdivision plat to the Commissioner of Health for his approval of the proposed methods of providing water and sewage facilities and land drainage. This approval must be obtained before the plot is submitted to the local planning commission. Where water and sewage services are to be provided by connection with public mains and systems, the required approval may be indicated without formal application. However, where individual installations are required, the formal procedure must be followed.
"Where water is proposed to be provided by means of individual wells or other sources and separate sewerage systems on each building site are to be provided, the usable area on each such site shall be not less than 20,000 square feet in area, and shall be larger when, in the opinion of the commissioner, such larger area is necessary to install properly such facilities. No arrangement intended to furnish water from a single well or other source to more than one building site except a public supply shall be approved.
"Where water is to be provided by provision of or the extension of a public water supply system, and sewerage is to be provided by separate sewerage systems on each building site, the usable area on each building site shall be not less than 7,500 square feet in area, and shall be larger when, in the opinion of the commissioner, such larger area is necessary for the proper disposal of sewage. No arrangement intended to dispose of sewage by a separate sewerage system to serve more than one building site, except a public sewer, shall be approved.
"When building sites are sold or offered for sale without the actual provision of water supply and sewerage facilities, the seller shall furnish to each purchaser at the time of sale a legible reproduction of the realty subdivision plan bearing the approval of the commissioner indicating the arrangements for water supply and sewerage approved by the commissioner, and the contract for sale or deed to the property shall contain a provision to the effect that the arrangements for water supply and sewage disposal shall be installed in accordance with plans approved by the commissioner prior to the start of construction on any building on the property so acquired."
The Basis for Sanitary Standards
Despite the widespread use of the 20,000 square foot standard, most sanitation experts agree that it is almost impossible to predict without specific study of the soil and site characteristics of a lot what the minimum dimensions of that lot should be. It is even less possible to establish one standard for all lots, regardless of their individual characteristics. This inability to generalize the lot size requirements for individual water supply and sewage disposal systems stems from two major causes. The first is that topography may impose certain requirements and limitations which make impossible an adequate separation between the septic tank installation and the source of water supply on a lot of only 20,000 square feet. The second variable is that the "safe distance" between the source of water and the septic tank field varies with the permeability of the soil, i.e., the percolation rate.
An attempt to relate soil type and topography to minimum requirements for lot sizes is made by Robert C. Hoover in his excellent article, "Land Planning for Sanitary Drainage and Water Supply in Suburban and Open Country Subdivisions," which appeared in the Journal of the American Institute of Planners, Winter 1951, pp. 29–37. The following table reproduces the suggested scale of minimum lot sizes based upon soil type and topography developed by Mr. Hoover.
Suggested Scale of Minimum Lot Size Requirements
|Soil Type||Required Facilities
(Family of 4a)
|Area of Sewerage System in Square Feet|
|0–5% Grade||6% + Grade|
|Clean coarse sand or gravel||60' tile & 2' trench, or a 40 sq. ft. cesspool||120||210|
|Fine sand or light loam||80' tile & 2' trench||190||350|
|Fine sand with some clay or loam||120' tile & 2 1/2' trench||780||1,200|
|Clay with some sand or gravel||320' tile & 3' trench||3,150||4,700|
|Heavy clay, shallow bedrock or impervious layer||Subsurface sand filter discharging to a flowing stream; or a public sewer|
|Flooded, swampy or with a high water table||Considerable filling and public sewerage|
a Assumes that there will be approximately 50 gallons of sewage produced for each person in the family.
Suggested Scale of Minimum Lot Size Requirements
|Soil Type||Minimum Lot Sizes (in square feet)|
|Grade: 0-5%||Grade 6% or over|
|Type of water service||Type of water service|
|Clean coarse sand or gravel||5,000||20,000||6,000||20,000|
|Fine sand or light loam||6,000||20,000||8,000||20,000|
|Fine sand with some clay or loam||8,000||20,000||12,000||20,000|
|Clay with some same or gravel||10,000||20,000||15,000||20,000|
|Heavy clay, shallow bedrock or impervious layer||15,000b||20,000b||20,000b||20,000b|
|Flooded, swampy or with a high water table||(Lot size not directly related to sanitary requirements since both public sewer and public water connection is assumed to be provided.)|
b Assuming that a subsurface sand filter is employed and that no public sewer connection is available.
Other valuable discussions on this subject include:
"Subdivision Sanitation in Rural Areas," by J. A. Salvato, Jr., in Public Works, February 1952, pp. 66–68, 80, 82.
"Need for Local Control of Water Supply and Sewage Disposal on Realty Subdivisions, " by David C. Wiggin, Jr., reprinted from Connecticut Health Bulletin for September 1950, by the Connecticut Development Commission, Research and Planning Division, State Office Building, Hartford, Connecticut, in December 1950. This is CDC File FN2. 36, entitled "Sanitary Engineering in Rural Subdivisions."
"Controlling Water Supply and Sewerage in Subdivisions," by George L. Hall, in Public Works, October 1950.
"Water Supply and Sewerage Facilities for Realty Subdivisions, by J. E. Kiker, in Florida Engineering Society Journal, Volume II, No.4, December 1948, pp. 30–48.
Sanitary Sewage Disposal for Rural and Suburban Areas, published by the Oregon State Sanitary Authority and the Oregon State Board of Health, Portland, Oregon, in 1948.
Minimum Building Size
Despite occasional litigation, the specification of minimum lot size has been accepted as an integral part of the police power. The case is not yet so clear with respect to the regulation of building size. The maximum size of buildings may be regulated through the joint operation of minimum lot area requirements and maximum coverage standards. Front, side and rear yard requirements also contribute to the regulation of the maximum size of a dwelling structure. In addition, the fire code is often invoked to place a limit on structure size based upon the degree of "fireproofing." These regulations are rarely questioned. It is in the matter of minimum building size that the controversy exists.
There are several bases upon which the advocates of the minimum building size regulation rest their case. The first is that minimum building size bears a direct relation to health, and therefore its regulation falls properly within the scope of the police power. The second is that whereas a minimum dwelling size in excess of perhaps four or six hundred square feet may not be justified solely on the ground of relation to physical health, it can be justified because of its relation to total health — both physical and emotional. It is stated that a community has the right to require a minimum standard of decent housing in the community on the basis of a broad interpretation of health. Taking the case a step further, a large minimum building size requirement may be supported because it "preserves the character of the neighborhood." This is an argument for "amenity" similar to that used by advocates of architectural control. Indeed, the minimum building size requirement is often found, if not in the same ordinance, in the same community where architectural control is practiced. Another argument is that the police power may be used to aid in the preservation of property values, which in turn preserves the tax base of the community, and that requiring a minimum building size helps in this process. It is this last argument that has led to ordinances containing not only sliding scales of minimum building sizes but also sliding scales of minimum building costs.
The legal bases for minimum building size regulations differ, as do also the types of regulations. We will explore the variety of minimum requirements which have been established — from those based almost entirely upon health standards to those based more upon the grounds of amenity and property values. These requirements are to be found in building codes, minimum housing codes and zoning ordinances. In general, smaller minima are to be found in the minimum housing codes and in most of the building codes, whereas the larger minima are to be found in the zoning ordinances.
Building Codes and Minimum Housing Codes
Recently, a number of cities have passed minimum housing codes in which maintenance and occupancy standards for existing dwellings are set forth. Most of these establish standards for the minimum size of habitable rooms and for floor area and cubic space in rooms used for sleeping purposes. Others go a step farther and specify minima for a variety of rooms and combinations of rooms.
For example, the ordinance establishing minimum housing standards for habitable buildings in Kansas City, Missouri, (passed in April, 1951) specified that the "total area of all habitable rooms in a dwelling unit shall be such as to provide at least 65 square feet of floor area per person." In addition, all sleeping rooms must have areas of not less than 60 square feet, and at least 400 cubic feet of air space must be provided in a sleeping room for each occupant over six years of age. A similar provision is found in the Rules and Regulations Governing the Hygiene of Housing of Baltimore, Maryland, passed in 1948. This ordinance, in addition to the above requirements as to sleeping rooms, specifies a minimum floor area of 50 square feet per adult and a minimum floor area of 30 square feet and minimum air space of 200 cubic feet for each child under the age of twelve. The same standards are contained in the Rules and Regulations of Housing in Wilmington, Delaware, passed in July 1950, and in the Ordinance Relating to Housing Standards passed in April 1951 by the city of Norfolk, Virginia.
Two minimum housing codes which contain much more specific spatial standards for all dwellings are those in operation in Portland, Oregon, and Greensboro, North Carolina. The Portland Housing Code, Section 8-508, specifies that "for each family in a single or two-family dwelling, there shall be not less than two regular use habitable rooms, one of which shall be a living room, and also there shall be a bathroom . . ." This section was amended December 15,1949, as follows:
"(b) AREA. Minimum floor areas for rooms shall be as follows:
Living room................................................................................................ 150 square feet
Dining room.................................................................................................. 80 square feet
Bedroom...................................................................................................... 90 square feet
Kitchen........................................................................................................ 60 square feet
Den or library............................................................................................... 60 square feet
Sewing room, 60 square feet if in the family unit there are two bedrooms, otherwise 80 square feet.
Breakfast nooks and dinettes, no minimum floor area or width required if there are windows having a glass area at least equal to 1/10th of the floor area; for a nook or dinette not having a window or having windows with a glass area less than 1/10th of the floor area, the regulations for alcoves shall apply. . . The term 'breakfast nooks' and 'dinettes' is to be understood to mean a room adjacent or in close proximity to the kitchen.
Sleeping porches, 80 square feet unless the sleeping porch has an open wall or window area of at least 1/4th of the floor area, in which case there is no minimum size.
Sun rooms, 80 square feet, unless the sun room opens with an archway into the main living room and has a window area of at least 1/4th of the floor area, in which case there is no minimum size requirement."
The Greensboro, North Carolina, City Code, Chapter 40, Providing for Minimum Building Requirements for Dwellings or Structures Used or Intended to be Used for Human Habitation, also establishes a schedule of room sizes based upon functions. The following table is included as part of the ordinance in Article 27, as amended March 12, 1952:
|Purpose||Minimum Area in Square Feet|
|Living – Dining – Cooking|
|(a) Living, dining, cooking, when in one room||220|
|(b) Living and dining, when in one room||160|
|(c) Living only in one room, when dining space is provided in kitchen or separate room||120|
|(d) Kitchen, cooking only||60|
|(e) Each additional room for living purposes when provided||70|
|(f) Cooking and dining, when in one room||90|
|(g) Kitchenette for one-room apartment occupied by not more than two people — 250 cubic feet, or||30|
|(a) Major bedroom||100|
|(b) Additional bedrooms, when provided.||70|
|(a) Sufficient for water closet, lavatory, tub or shower|
|(b) A bathroom opening into kitchen will not be permitted|
Similar to the minimum housing code standards are those occasionally contained in building codes which specify the minimum size of habitable rooms, etc. The Model Township Building Code for One and Two Family Dwellings, prepared by the Michigan Planning Commission in May 1947, requires that no dwelling structure contain less than two rooms and a bath. Of these, one must be a sleeping room and have a floor area of not less than 120 square feet, and the other must be a living room which, if space is provided elsewhere for eating and cooking, must be not less than 150 square feet, or, where the room is to be used for living and eating space, must be at least 190 square feet, and where such room shall be used for living, cooking and eating, must have a floor area of not less than 220 square feet.
Similar to the Michigan model code are the standards established in the building code of Cook County, Illinois, adopted August 1947, in which the following space requirements are specified:
Each living unit must provide at least one bedroom and one bathroom, and space for living, dining, cooking, storage, utility and heating. Where living, dining and cooking are done in one room, the minimum floor area for that room is 200 square feet. Where living and dining are done in one room, and cooking is done in a separate room, the living room must be 180 square feet, and the kitchen must be 60 square feet. A living room devoted only to living, where separate dining and kitchen space is provided, must be 160 square feet, and the kitchen where dining space is provided within must be 90 square feet. The major bedroom must have an area of not less than 100 square feet, and any additional habitable rooms must be no less than 80 square feet in area.
In 1946, the Tri-County Regional Planning Commission of Denver, Colorado, prepared a Uniform Building Code of Colorado available for adoption by any zoned unincorporated community or, with minor changes, by any municipality in Colorado. Minima of 150 square feet for living rooms; 160 square feet for living rooms with dining space included; 220 square feet where dining, cooking and living space is included "provided that this area shall not be less than 210 square feet when located in a dwelling unit having less than two (2) bedrooms." Kitchen areas must be 60 square feet, or 90 square feet where dining space is included "provided that the area of the kitchen shall not be less than fifty (50) square feet when located in a dwelling having less than two bedrooms." The area of at least one bedroom must be 100 square feet, and for each additional habitable room, the minimum required area is 70 square feet. All the above minima are exclusive of storage and closet space.
Identical standards are to be found in the New Jersey Code of Minimum Construction Requirements for One and Two Family Dwellings. This state building code prepared by the Department of Economic Development of New Jersey has no binding power within any municipality. It is "suggested as a code of minimum requirements for voluntary adoption by such municipalities as would care to follow that practice."
The relation between these minimum standards and the standards promulgated by the Federal Housing Administration to which buildings must conform in order to be eligible for FHA loans is fairly clear. Such requirements would permit dwellings of even less than 400 square feet (i.e., 350 square feet) without violation of the regulations.
The American Public Health Association has recently published a model ordinance which suggests spatial standards higher than those incorporated in the ordinances cited above. In the Committee on Hygiene's Proposed Housing Ordinance Regulating Supplied Facilities, Maintenance and Occupancy of Dwellings and Dwelling Units, published by the American Public Health Association, Inc., New York, in 1952, minimum space standards are enumerated as follows:
"Every dwelling unit shall contain at least 150 square feet of floor space for the first occupant thereof, and at least 100 additional square feet of floor space for each additional occupant thereof, the floor space to be calculated on the basis of total habitable room area.
"In every dwelling unit of two or more rooms, every room occupied for sleeping purposes by one occupant shall contain at least 70 square feet of floor space, and every room occupied for sleeping purposes by more than one occupant shall contain at least 50 square feet of floor space for each occupant thereof."
Thus, according to these standards, a minimum building size requirement in excess of four hundred square feet may be imposed according to family size. For a family of six, it would be possible under this regulation to require a minimum building size of six hundred and fifty square feet.
It is interesting to compare the minimum building sizes which the Committee felt to be enforceable by law with the minima suggested in their volume on standards, Planning the Home for Occupancy. This was published by Public Administration Service in Chicago in 1950. In this volume, the Committee on the Hygiene of Housing dealt not with enforceable minima, but with "desirable" minima. In the words of the Committee:
"The proposed standards are not suggested for legal condemnation proceedings, but represent minimum requirements for satisfactory housing. They should be clearly distinguished from the detailed regulation which must be embodied in a building code . . . . These figures are not suggested as standards to be applied by legal means, but are goals at which to aim. They represent the essential space requirements of the dwelling which, without extravagance, will make physical and emotional health possible." (italics ours)
On the basis of a detailed analysis of the space required for home activities and equipment, the Committee evolved the following space standards for families of various sizes. For the one-person family, a dwelling of 400 square feet of floor area is desirable. A two-person family requires a dwelling unit having 750 square feet of usable floor area; a three-person family requires 1,000 square feet of floor space; a four-person family, 1,150 square feet; a five-person family, 1,400 square feet; and a six-person family, 1,550 square feet. These standards make an interesting comparison between legally enforceable health requirements and the requirements based upon amenity and a new interpretation of health. (See the case of Lionshead Lake Inc. v. Wayne Township, Passaic County, Superior Court of New Jersey, April 27, 1951, discussed below.)
In general, regulations in building codes and housing codes establish minima without reference to the zoning district in which the dwelling is located, whereas regulations in zoning ordinances frequently establish different minima for the various residential districts. There are many exceptions to this general rule, however. For example, in this section we shall include excerpts from two building codes which establish sliding scales of building size. There are also a number of zoning ordinances which establish a flat minimum for the entire community. Examples of these will also be given.
The types of regulations which appear in zoning ordinances may be classified as follows:
(1) Those in which a minimum building size is established for all dwellings within the community, regardless of location or building type.
(2) Those in which a sliding scale of dwelling size minima is established, regardless of location but dependent upon building type, i.e., single family, two-family, multiple- family.
(3) Those in which a sliding scale of dwelling size minima is established based upon the residence zone in which the structure is located, regardless of building type.
(4) Those in which a sliding scale of building cost is established based upon the residence zone in which the structure is located.
(1) A Single Minimum for the Entire Community
The town of Cortlandt, New York, in its recently (1951) adopted zoning ordinance, requires that "every building hereafter erected for use for dwelling purposes or converted for such use, shall have a gross floor area of not less than 500 square feet computed as being the sum of the areas enclosed by the outside faces of all exterior walls surrounding each floor used for dwelling purposes, exclusive of any area used for an attached garage."
An amendment to the zoning ordinance of Mount Lebanon Township, Pennsylvania, adopted July 9, 1951, establishes a minimum dwelling size for all single-family dwellings, leaving other types of residential buildings uncontrolled. The following standards are imposed:
"(a) For all one-story single-family dwellings, the minimum first floor area shall be one thousand (1,000) square feet;
(b) For all one and one-half story single-family dwellings, the minimum first floor area shall be eight hundred and forty (840) square feet;
(c) For all single-family dwellings having two or more stories, the minimum first floor area shall be six hundred sixteen (616) square feet."
This amendment contains an interesting flexibility clause which specifies that:
"Nothing in the aforesaid minimum first floor area requirements shall be held to prohibit the erection of a single-family dwelling upon a lot, the area of which is such that, after application of the building line restrictions and sideline restrictions contained in this ordinance, as heretofore amended, there is not sufficient land area remaining in the lot to permit the erection of a dwelling containing the minimum first floor area requirements established hereby, provided that such lot was, at the date of the enactment of this amendment, held and thereafter remained under a separate ownership from the adjoining lots, or provided that at the date of enactment of this amendment, a plan of lots theretofore recorded in the office of the recorder of deeds of Allegheny County, Pennsylvania, showed such lot to be a separate and distinct numbered lot."
An early minimum building size requirement is contained in a 1938 ordinance ( not a zoning ordinance) in force in Boulder, Colorado, where "all dwellings . . . erected shall provide a minimum floor area of 315 square feet exclusive of partitions and exterior walls." This ordinance has, according to our records, been enforced satisfactorily and has not been challenged in the courts.
An attempt is made in at least one ordinance to relate the minimum building size to occupancy. In a 1951 proposed amendment to the zoning ordinance of Pound Ridge, New York, a minimum floor area of 1,000 square feet is required in all zones and an area of 1,500 square feet is required in buildings over one story in the Residence A District. Deviation from this standard is permitted, however, since the board of appeals is given discretionary power
". . . to grant a special permit for the construction, alteration or occupancy of a dwelling having less than the minimum floor area . . . , but in no case less than 400 square feet of livable floor area as defined above, on condition that the owner applying for said special permit execute and deliver to the board of appeals an agreement approved by the town attorney as to form and manner of execution, in proper form to be recorded, and containing a covenant that no more than two persons shall regularly occupy such dwelling unless and until additional floor area is created in order to conform to the minimum requirements for dwelling use as hereinbefore provided."
In the Township of Southfield, Michigan, the Zoning Ordinance for District 1 specifies both a minimum building area and cubic volume for dwellings in the residence districts (only one type of residential district is enumerated). All dwellings must have a first floor area per family of not less than 525 square feet and must provide at least 10, 000 cubic feet of content.
The total number of communities with regulations establishing a flat minimum for dwelling unit size is not known, but this provision is found in far fewer ordinances than are the sliding scale provisions. In a recent study conducted by the Division of Planning and Development of the New Jersey Department of Conservation and Economic Development, it was revealed that of the sixty-four zoned communities in New Jersey with minimum building size regulations, only twenty-one had a uniform requirement for all districts, whereas forty-three had ordinances with sliding scales in which the minimum requirements were varied from zone to zone.**
(2) Minima for Building Types
Examples of this type of provision are quite numerous. For example, the zoning ordinance of the Village of Allen Park, Michigan, requires a minimum first floor area of 576 square feet for a single-story one-family dwelling, and requires a first floor area of at least 400 square feet and a total cubic content of 8,640 cubic feet for a single-family dwelling of two or more stories. Buildings designed for the occupancy of two families must have a first floor area of at least 575 square feet, and a cubage of 15,000. In buildings designed for the occupancy of more than two families, each apartment must contain no less than 1,666 cubic feet.
The zoning ordinance for Rye, New York, adopted in 1949, also establishes different minimum requirements for single-family dwellings and dwelling units in multi-family structures. Dwelling houses must have a total gross floor area of not less than 1,000 square feet, whereas apartment houses need have only a gross floor area of 750 square feet for each dwelling unit included therein.
Farmington, Connecticut, in 1950, adopted a zoning ordinance in which the following requirements are included. All single-family dwellings must be at least 650 square feet in area, but two-story single-family dwellings must have 570 square feet of floor area on the first floor. Two-family dwellings must have a minimum floor area for each family of 525 square feet for a three-room apartment and 650 square feet for a four-room apartment. For each additional room in the apartment over four, 120 square feet must be added to the minimum requirements. Typical is the clause that "in computing floor area for living quarters, cellar space, rooms for heating equipment, halls, stairways and open or closed porches shall not be included."
(3) Sliding Scales According to Zone Location
Most common are the ordinances which set different minima for the various classes of residential districts. Large numbers of communities throughout Michigan, New Jersey, New York and Florida, to mention but a few of the states in which such provisions are common, have incorporated sliding scale standards into their zoning ordinances and even their building codes.
Sliding scales are contained in the building codes of both Flossmoor, Illinois, and Oyster Bay, New York (outside of incorporated villages). In the latter, for single-story dwellings in Zone A, the floor area must be 900 square feet; in Zone B, 850 square feet; in Zone C, 800 square feet; in Zone C-1, 750 square feet; in Zone D, 700 square feet; and in Zone E, 650 square feet. The minimum habitable floor area required for any two-story building in any of the foregoing ones is 1,000 square feet. The Flossmoor building code (adopted 1947) establishes somewhat higher standards, since in the Residence AA and A Zones, no building may be erected with less than 1,050 square feet of livable floor area exclusive of basement, closets, garages, porches, attics, stairways, storage space, utility and heating rooms. Residential buildings in other districts in the village must contain not less than 950 square feet of livable floor area. In two-, three- and multiple-family dwellings, each dwelling unit is required to contain not less than the minimum 950 square feet of usable floor area.
Sliding scales are included in zoning ordinances also. For example, the zoning ordinance of Somers, New York, requires that in the Residence O-3 District (with a minimum lot area requirement of 10,000 square feet), each single-family dwelling must contain 11,000 cubic feet and 950 square feet of floor area. In the Residence O-2 District (with a minimum lot area requirement of 40,000 square feet), each dwelling unit must contain 11,700 cubic feet and be at least 1,000 square feet in area. In the Residence O-1 District (minimum lot area of 80,000 square feet), each dwelling must contain 14,200 cubic feet and 1,200 square feet of floor area.
Meridian Township, Michigan, provides for a minimum number of square feet as follows: District A, 900 square feet on the ground level; District B, 720 square feet on the ground level, and; District C, 480 square feet on the ground level. In Miami, Florida, a sliding scale of minimum building size has been in force for many years. The minima range from 2,100 square feet to 3,500 square feet in the most restricted areas. A proposed draft of a zoning ordinance for Bloomfield Hills, Michigan, dated 1949, suggests the following cubic feet minima:
"No private dwelling, excepting here from those classified as accessory uses, shall be erected or altered in District A, which contains by volume less than 35,000 cubic feet; in District B, less than 30, 000 cubic feet; and in District C, less than 25,000 cubic feet. The cubical content of a building shall be computed from the exterior face of the walls and from the bottom of the basement floor, or in the case of basementless buildings, from the low grade to the average height of the roof, including all permanently enclosed and heated projections, bays, dormers, porches, balconies, or projections of chimneys . . ."
(4) Sliding Cost Scales
Ordinances requiring that no buildings costing less than a specified amount may be located in a particular zone seem to be on the least solid ground. We have no record of any court case in which such a regulation has been upheld. An example of typical wording is found in the zoning ordinance of Allen Park, Michigan, which reads as follows:
"(1) It is hereby determined and declared to be immediately necessary, in order to promote a uniform and planned development of lands within the Village of Allen Park, to impose upon the use of such lands certain restrictions upon the cost value of buildings to be erected thereon in certain sections or districts. It is also hereby determined and declared to be immediately necessary that such cost values be placed upon a sliding scale basis in order to further insure workable application of such cost value restrictions according to market conditions of building materials prevailing at the time application for the building permit is made . . .
"(2) For the purposes set forth in the preceding paragraph hereof, there is hereby imposed upon the use of all parcels of land to be used for building purposes, a minimum cost value restriction of a sum at least equal to that set forth in a certain table of minimum cost values applying to the various subdivisions or plats thereof lying within the limits of the village, . . . said cost values shall be based upon the average wholesale prices for all building material as indicated by the price index for the year 1926. The minimum cost value of each building shall be computed by multiplying the average wholesale price building material shown in the price index last published by the cost value restriction indicated in said table.
"In cases of conveyances of portions of unplatted land by metes and bounds, descriptions without cost value restrictions, and in cases where the cost value restriction cited in the conveyance is less than $3,500, there is hereby imposed a minimum cost value restriction of $ 3,500 for either commercial or residence use, based upon the computation provided for in the preceding paragraph hereof."
The Legal Aspects of Minimum Building Size Requirements
The courts have not looked with favor on minimum building size requirements. In most of the cases involving such provisions, the restrictions have been declared invalid. Only one case, a recent Texas decision, clearly supports a minimum building size requirement; several other cases have seemed to support such provisions, but have not been addressed directly to the question. Where a clear relation to health is demonstrable, there has been little difficulty. For example, the Indiana court upheld an ordinance requiring that a sleeping room contain 500 cubic feet of space for each person housed. (Spitler v. Town of Munster, 214 Ind. 75, 14 N.E. 2d 579,115 A.L.R. 1995.) The courts have been slow, however, to recognize "emotional health" as a valid ground for such regulations. This is demonstrated in the case of Lionshead Lake Inc. v. Wayne Township, Passaic County, Superior Court of New Jersey, April 27, 1951, 80 A. 2d 650. In this case, the Superior Court of New Jersey held invalid a requirement that every dwelling erected in a Residence A District must have 1,000 square feet for a one-story dwelling. The defendant produced an outstanding and nationally-known public health expert who testified as to certain minimum requirements for residential purposes, but the expert admitted that his requirements were based not necessarily upon physical health but on emotional health as well. The court, in judging the ordinance to be invalid discounted this evidence and based its decision on the fact that the ordinance practically provided that no house costing less than a certain sum could be erected in the community. The court said:
"The ordinance, in its present form, therefore practically provides that no house costing less than a certain sum may be erected in the entire community" let alone a specific area, and this he cannot legally do . . . No person under the zoning power can legally be deprived of his right to build a house on his land merely because the cost of that house is less than the cost of his neighbor's house."
The defense argued that property values would be harmed because of the appearance of the smaller homes, and because of the type of people who would be likely to occupy them. Other points raised were that the taxes paid on the lower cost houses would not be sufficient to cover the cost of municipal services and that the small homes were not conducive to physical or mental health. It was also pointed out that some eighty of the 300 zoning ordinances in New Jersey include minimum building size provisions. This case is now being appealed.
The courts have often used the argument that minimum dwelling size requirements are simply an indirect means for assuring the "economic exclusiveness" of a neighborhood, and have therefore found such regulations to be invalid. In an early case which involved an ordinance prohibiting single-story buildings in a residence zone, (Brookdale Homes Inc. v. Johnson, et at., 10 A. 2d 477, New Jersey, 1939) the court stated that "no person under the zoning power can legally be deprived of his right to build a house on his land merely because the cost of that house is less than the cost of his neighbor's house." A similar opinion is expressed in the case of American Veterans Housing Cooperative, Inc. v. Reginald M. Budd et al., in the Court of Common Pleas, Montgomery County, Pennsylvania (April 1949) No.6. The court, holding against a newly-adopted zoning ordinance establishing a sliding scale of minimum building sizes, stated in part:
"When the background and history of this amendment is considered, it appears as a thinly disguised attempt to regulate the cost of houses in a V Residence District, and thus make it impossible for the appellant to go forward with its proposed operation. It is an attempt to segregate economic classes, and this we believe cannot be accomplished by zoning."
This decision is significant, not only for the views expressed concerning economic segregation, but also for two other important statements. The first was a comment made in passing that "there seems to be no doubt that the township could require a minimum of habitable floor area in all dwellings in the township, (italics ours) so long as it is reasonable. . ." If this view becomes more widely accepted by the courts, and if a determination of reasonableness can be made which will define the minimum in excess of the accepted health code requirements, minimum building size regulations may be upheld more often in the future. A second important statement referred to the legality of sliding scale ordinances. The court said:
"It is rather difficult to see how a house containing 908 square feet of habitable floor area can promote the public health, safety and welfare of a T residence district where it is permitted by the ordinance, and detract from the public welfare in a V district where 1,400 square feet is the minimum . . .
"The township commissioners may legislate on the floor area of rooms, for this has a direct relationship to public health, but could they say that the minimum floor area of a room in one district must be greater than the minimum floor area in another district? We think not . . ."
However, the Texas case in which minimum building requirements were upheld unequivocally involved an ordinance in which a sliding scale was established for the various residential districts. This case is Thompson v. City of Carrollton, 211 S. W. 2d 970, (Texas Civ. App., April 5, 1948). The City of Carrollton established a sliding scale of minimum building sizes requiring dwellings in the Residence B district to have an area of 900 square feet. When Thompson submitted plans for a house of only 752 square feet, he was denied a building permit since his building did not conform to the zoning ordinance standard. The court ruled that the ordinance was not unreasonable and, according to a summary given in Municipal Law Decisions, October 1948, "relied on an earlier Texas zoning case in which it was found that 'harmonious appearance, appropriateness, good taste and beauty displayed in a neighborhood not only tend to conserve the value of property, but foster contentment and happiness among home owners."
Here, the court viewed both aesthetics and the preservation of property values as valid grounds for the exercise of police power. There are a number of cases, however, where such grounds have been rejected. In the Nebraska case of Baker v. Somerville, 293 N.W. 326 (1940), involving an ordinance requiring a two-story structure with 2,000 square feet of floor area, the court held the ordinance to be invalid. The court said in part:
"Beautiful city residences, homologous lines in architecture and symmetry in construction appeal to artistic tastes . . . and should be respected in connection with substantial zoning regulations for the promotion of the public welfare, but aesthetics alone for the purpose or zoning ordinances do not seem to be a source of police power, according to the weight of authority . . . . the zoning ordinance under consideration . . . , on the sole basis of aesthetic standards, does not promote public health, safety, morals or the general welfare, and is therefore void."
Another case in which the court commented on aesthetics is Frischkorn Construction Company v. Lambert, Building Inspector, et al., Supreme Court of Michigan, September 11, 1946, 24 N. W. 2d 209. The court found a regulation requiring a minimum cubic content of 14,000 cubic feet for new dwellings in an area in which most of the dwellings were one-story bungalows to be void since it would "not tend to protect or promote health, safety or public welfare." Further, the court said that although aesthetics may be an incident, it cannot be the moving factor in determining the validity of building restrictions under the police power.
In at least two Michigan decisions the courts have rejected the argument that minimum building size requirements should be sustained because of their relation to the protection of property values. In one of the basic cases with respect to minimum building size, Senefsky v. Lawler, 307 Mich. 728, 12 N.W. 2d 387 (1943), the court found that an ordinance which required a minimum of 1,300 square feet of usable floor space in a particular zone was unreasonable and void, since the restriction has no relation to public health, safety and welfare. It claimed that the fact that the restriction was designed to protect and preserve property values was insufficient to sustain its validity. A similar decision and opinion is contained in another Michigan case, Elizabeth Lake Estates et al. v. Waterford Township, Supreme Court of Michigan, April 8, 1947, 26 N. W. 2d 788. The zoning ordinance of Waterford Township contained minimum building size requirements for the various zones both in area and cubical content. The plaintiff proposed to build a house with less than the minimum cubical content. Testimony was introduced showing that the principal reason for the provisions was to maintain the standard in the district and to conserve the value of existing buildings in the subdivision. The Supreme Court held that these provisions were invalid and that the preservation of existing property values was not authorized by the zoning statute.
The preservation of property values is not mentioned in the Michigan zoning enabling legislation, but it is included in the enabling statutes of several other states. For example, in a law recently enacted by the state of Florida to amend Sections 168 and 170 of the Chapter of the City of Sarasota, Florida, states:
"that the said city has certain peculiar characteristics and qualities which attract tourists and visitors in great numbers and that these peculiar characteristics and qualities of said city justify zoning to protect not only the health, safety and general welfare of the public, but also the preservation of property values and aesthetic considerations with regard to business and residential areas . . . " (italics ours)
The Municipal Zoning Enabling Act of New Jersey contains a section on the purposes of zoning which reads as follows:
"Such regulations shall be in accordance with a comprehensive plan and designed for one or more of the following purposes: to lessen congestion in the streets; secure safety from fire, panic and other dangers; promote health, morals or the general welfare; provide adequate light and air; prevent the overcrowding of land and buildings; avoid undue concentration of population. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability, for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality." (italics ours)
There have been several cases in which minimum requirements have either been upheld or have gone unquestioned. In Dundee Realty Company v. City of Omaha, 144 Neb. 448, 13 N. W. 2d 634 (1944), the court upheld minimum area requirements of 1,200 square feet for two-story buildings and 1,000 square feet for one-story dwellings, saying that "such ordinance is not arbitrary or unreasonable, as applied to plaintiff's land, but is to the best interests of the city of Omaha . . . (and is) constitutional and valid." Another decision favorable for the future of minimum dwelling size regulation is to be found in Flower Hill Building Corporation v. Village of Flower Hill, Nassau County, Supreme Court (a lower court in New York State), Special Term, Nassau County, June 8, 1951, 100 N. Y. S. 2d 903. The petitioner contended that the Village exceeded its authority in legislating concerning minimum floor area, arguing that there is no relationship between livable floor area and public health, safety and general welfare. The court held that such regulations are not in themselves invalid and are invalid only if proved unreasonable in a particular case. The court said in part:
"I consider that it was the intent of the zoning statute to throw around each community an arm of protection in the form of a local zoning ordinance, which could insure its inhabitants against radical zoning changes (not necessitated by public demand and by changing conditions of the neighborhood) which would be detrimental to their established living conditions, their property values and the most desirable use of their land."
Still another case is Kimsey v. City of Rome et al., Court of Appeals of Georgia, October 4,1951, 67 S.E. 2d 206, in which a trailer occupied as a permanent dwelling was held to be a dwelling and required to conform to the zoning ordinance provision for a 700 square foot minimum area. The court did not go into the question of whether or not such minimum regulations are legal.
The Present Status of the Controversy
No simple and uncontroversial conclusions may be drawn from the multitude of court cases and opinions in the field of minimum building size regulation. When we have eliminated the clearly legal regulations based upon accepted health standards and those regulations based upon economic cost discrimination which seem fairly sure to be held invalid, there still remain many regulations which are neither legal nor illegal a priori. Despite the number of cases which have been decided in opposition to minimum building size requirements, the courts have far from closed the door to future changes. In nearly every decision in which such regulations were held invalid, there are phrases which give hope to proponents of minimum requirements. For example, in the Senefsky v. Lawler case, if the opinion is studied carefully, it may be seen that the court has simply held that the minimum requirements were illegal as applied to the particular subdivision under consideration. In the Frischkorn case, likewise, the court felt that the requirement was unfair in this particular case because the majority of existing buildings in the area did not comply with the requirement. In the American Cooperatives case in Pennsylvania, the court recognized that the ordinance was enacted after substantial progress on the planning of the Veterans' project had been completed and was obviously intended as a means of obstructing these plans. This becomes clear when the facts concerning the history of the project and neighborhood opposition are studied. In the Elizabeth Lakes Estate case in Michigan, the court pointed out that the zoning ordinance was not comprehensive. It covered only two square miles of the community's 36 square mile area. There are similar loopholes in practically every case involving minimum building size ordinances, as Robert M. McClory points out in his article, "The Undersized House: A Municipal Problem," which appeared in the Chicago-Kent Law Review for March 1949, pp. 142–150. McClory states:
". . . Undersized dwellings, whether standing alone or in a row, are not only incompatible with the character of many of our residential areas, but, in the long run, cannot make for comfortable living. The adverse effect these three or four-room homes will have upon a residential community primarily consisting of substantial six to eight-room dwellings, erected when costs were lower, is obvious. To prevent that blight, the question of whether or not a municipal ordinance designed to regulate floor area and cubical content could be validly enacted is a matter of prime importance to many communities."
McClory contends that if the state zoning enabling statute is broad enough, the regulation of minimum size of dwellings falls within the police power of the municipality. He cites the Illinois act, which includes among the desired ends of zoning "(that) adequate light, pure air and safety from fire and other dangers may be secured, that the taxable value of land and buildings throughout the municipality may be conserved, that congestion in the public streets may be lessened or avoided, and that the public health, safety, comfort, morals and welfare may otherwise be promoted," as an example of a broad enough statute, since the regulation of minimum dwelling size is directed toward the conservation of tax values.
Some convincing arguments have been advanced in support of these regulations based upon the conservation of property values. One such argument is made in the often quoted dissenting opinion of Judge Bushnell in the Senefsky v. Lawler case.
"(Ordinances) having for their purpose regulated municipal development the security of home life, the preservation of a favorable environment in which to rear children . . . the safeguarding of the economic structure upon which the public good depends, the stabilization of the use and value of property . . . are within the proper ambit of the police power . . . The legislative authorities in the city of Huntington Woods are better acquainted with the necessities of their city than we are . . . They are also better able to determine whether the ordinance in question will accomplish the desired end result of stabilizing and preserving property values . . ."
Norman Williams, Jr. presents the other side of the subject in his article, "Minimum Building Size," which appeared on pages 130–131 of The American City, October 1951. Williams believes that large minimum dwelling size requirements are undemocratic, and in reality "snob" zoning. He feels that the conservation of property values is not in itself sufficient justification for this particular zoning power, since "some of the factors affecting values provide a proper basis for the exercise of police power; others do not." To quote further from Mr. Williams' statement:
"Essentially the same point applies to the arguments about 'protecting the character of the neighborhood' and 'protecting the most appropriate use of land in the area' — phrases which are sometimes brought up as if they solved all problems. Such phrases, while satisfactory enough as broad indications of the general purposes of zoning, are too vague and abstract to serve as a satisfactory independent basis for the exercise of police power. For precise and meaningful legal analysis of the basis for excluding certain buildings from an area, it is necessary to be more specific. What characteristics of the neighborhood are referred to? What criteria are to be used in determining whether certain uses of land are appropriate to certain areas? Once these questions are asked . . . we are taken right back to the basic issue of snob zoning. As with the argument about property values, these general phrases cover basic points of policy which may or may not be tenable when stated frankly."
Williams points out some of the implications of permitting zoning to be used to exclude the less well-to-do groups from a community. It is contrary to all our beliefs concerning taxation and responsibility, he emphasizes, to permit wealthy citizens to live in one community with a low tax rate or a high level of services, while the poorer segments of the population are segregated in another community which, because of the economic level, cannot support even basic municipal services. This objection is particularly relevant in those metropolitan areas where the central city faces a reduction in its tax base as properties in the central city decline and wealthier residents move to surrounding suburban communities. Whether this objection still has validity where both the more exclusive and the less exclusive residential areas are contained within the same taxing jurisdiction is another problem. However, even if the economic reasons against segregation are dismissed, there still remain the social reasons against economic segregation.
An answer to Williams and a defense of minimum building size regulations are to be found in "More on Wayne Township and Minimum-Size Zoning," by Herbert H. Smith, which appeared in the November 1951 issue of The American City (pp. 133-134). Arguing that a large majority of the municipalities in New Jersey are suffering from excessive debt burdens and high tax rates, he advocates minimum dwelling size requirements as a means of protecting these communities from the increased burdens which would result if houses paying less in taxes than the community requires to supply them with services were permitted to mushroom in the community. He states:
"While I believe that every man should have the right to own a home, I am equally convinced that no public subsidy should be required if he is to have it."
The fact remains, however, that very few single-family dwellings ever pay their own way, and the majority are subsidized by the tax returns from industrial and commercial property in the community.
From the foregoing discussion it will be seen that there is not yet anything like a generally accepted standard for minimum building size, nor is there any clear assurance that the courts will accept minimum building standards. Generally, however, the evidence points to the following conclusions:
- Minimum building size may be regulated where there is a clear relationship between such standard and health.
- Such a relationship has not yet been proven conclusively for any minimum dwelling size greater than 600 square feet.
- Such a relationship is fairly meaningless unless it is related to occupancy standards, i.e., the number of persons occupying the dwelling.
- Such relation is more clearly related to building type than zone location, although even the relationship between building type and minimum area is open to question unless occupancy standards are somehow brought into the picture.
- While there will undoubtedly continue to be a regulation of minimum building size through zoning, it may be that a stronger case can be built up for regulation through the building code and the housing code. It should also be remembered that regulation of minimum building size through private deed restrictions is possible, although this is not, of course, a field for municipal action.
*Edward M. Bassett, Zoning; The Laws, Administration and Court Decisions During the First Twenty Years, published by the Russell Sage Foundation, New York: 1940, pp. 86–87.
**These figures were taken from "Minimum Floor Area Requirements: Snobbery or Valid Protection?" Remarks of Herbert H. Smith before Seminar of the Institute of Local and State Government of the University of Pennsylvania, Jan. 10, 1952 (typed draft).