A reckoning for single-family zoning is underway. From Minnesota to California, cities and states are looking for ways to compel the densification of neighborhoods long devoted to large lots and detached homes. The bitter debates occasioned by these efforts expose a common source of homeowner opposition: worries about multifamily housing and, specifically, the apartment building. In that regard, little about land use law seems to have changed. The apartment was cited as an evil in the case that upheld zoning as a legitimate use of the state’s regulatory power nearly a century ago. Beginning the story there, however, misses an important chapter. For decades prior, judges routinely declined to consider apartments undesirable neighboring uses that existing owners could prevent through private law. The legal history of the apartment demonstrates the important interplay between private forms of land use law — nuisance and deed restrictions or covenants — and the ways that these private land use controls influence the evolution of public regulation.
This Article uses a forgotten period in urban development to illustrate the critical interactions among forms of private and public law in identifying the proper subjects of land use control. In the early nineteenth century, a tool blending contract and tort proliferated: the nuisance covenant, a promise transmitted through deeds not to engage in specific noxious uses — an expanding list ranging from slaughterhouses to circuses to tenements — or any use deemed noxious in the future. This innovation offered benefits over covenant and nuisance law independently, as drafters were able to tailor the definition of nuisance while preserving flexibility to prevent unanticipated activities. And yet, the arrival of the apartment exposed the strong pull of traditional nuisance law: judges were hesitant to interpret restrictions to ban this new form of housing associated with the middle and upper classes. Lawyers and developers worked to identify apartments as problematic through newly drafted covenants and the concept of near-nuisance, paralleling arguments that would reemerge decades later as the proponents of zoning contended that it was within the state’s police power to limit apartment construction. Nuisance and covenant law influenced how judges and other parties came to see uses as harmful and anticipated debates about the appropriate scope of regulation. This dialogue between private and public law is echoing in the twenty-first century, and private law continues to form an important, lurking limitation on land use reform.
Introduction
For the past several years, single-family zoning — local land use rules preventing anything but detached single-family homes from being built in certain geographic districts — has come under sustained attack.1 This form of zoning is now widely perceived as a contributor to affordable housing crises, racial and economic segregation, environmental damage attending suburban sprawl, and even overall losses to the United States economy.2 And yet, while state and local legislators from Oregon to Minnesota to California have begun trying to densify housing in America’s cities and suburbs,3 there remains significant opposition. On August 16, 2020, President Donald Trump and Secretary of Housing and Urban Development Ben Carson published a piece in the Wall Street Journal warning that left-leaning politicians want to “remake the suburbs” by compelling “high-density ‘stack and pack’ apartment buildings in residential neighborhoods.”4 Indeed, apartment buildings and other forms of multifamily housing are ground zero for the debate over zoning.5 Inevitably, when residents or representatives of a single-family neighborhood oppose a change in zoning rules, the apartment is invoked as an inherently harmful neighboring use responsible for traffic, decreased school quality, noise, or a parade of other horribles.6
One could be forgiven for thinking it has always been this way. In Village of Euclid v. Ambler Realty Co.,7 the 1926 Supreme Court case upholding zoning as a legitimate use of the state’s regulatory power, the apartment already loomed large.8 Although zoning was a substantial incursion on property rights, the majority opinion portrayed regulation as sensible harm prevention: in limiting the apartment to certain areas, for instance, it restricted “a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district.”9 In one of the most famous quotes from the case, the majority suggested that an apartment in a single-family neighborhood “may be merely a right thing in the wrong place, — like a pig in the parlor instead of the barnyard.”10
Euclid has spawned hundreds of retrospectives,11 and there is wide consensus that the key move in the case was to unmoor the government’s police power from the common law of nuisance.12 Nuisance is the property tort involved when “one owner’s use and enjoyment of property [unreasonably] interferes with the use or enjoyment of property by another”;13 it conjures images of a polluting factory next to a residential neighborhood.14 Apartments and other uses targeted by early zoning laws were not generally considered legal nuisances,15 although the lawyers in Euclid managed to portray them as close enough. The Euclid decision thus scuttled the idea that land use regulation was limited to suppression of legal nuisances, enabling communities through zoning to structure an affirmative concept of the public good. Of course, that public good was often defined by elites hostile to racial minorities,16 the poor,17 and even certain women and families,18 and it carried the widespread economic and social consequences we now know.19
In this Article, I argue that an important preceding development foreshadowed the outcome in Euclid, one that conventional land use histories have ignored. And this important development occurred in an unexpected spot: not within constitutional jurisprudence, nor within natural law or political theory, but rather deep within private law, at the intersection of property, contract, and tort. Using perennially underappreciated source material — specifically, deeds and scattered state cases20 — this Article demonstrates that cracks in the dominance of nuisance law were forming and widening for nearly a century by the time Euclid was argued. The idea that communities could redefine tort law baselines to prevent harm accelerated in the 1820s through a curious feature straddling contract and property law: the “nuisance covenant.”21 This Article tells the story of the rise and fall of the nuisance covenant toward three different ends: (1) to illustrate how developers and owners used this hybrid legal device to prevent unwanted uses that tort and contract law could not independently exclude from neighborhoods; (2) to indicate how these covenants came to communicate strong messages about the nature of unwanted uses across time and place; and (3) to show how and why the nuisance covenant proved ill-equipped to confront a new land use challenge — the apartment building — and how both its failures and its legacies ultimately shaped the push for formal zoning regulation.
The term “nuisance covenant” requires an initial definition. Al-though the word “covenant” brings to mind both biblical allusions and nightmares from first-year property courses,22 covenants are at base voluntary agreements (thus like contracts) that run with the land, rather than attaching to a specific person or owner (thus bearing the in rem quality of property).23 Covenants are also called deed restrictions,24 and they are subject to a number of highly technical and bewildering rules largely irrelevant to the purposes of this Article.25 Instead, this Article’s focus is on the emergence of the legal device its nineteenth-century contemporaries called the “covenant against nuisances.”26 The nuisance covenant usually combined two features: a list of specific objectionable uses (such as “slaughterhouses” or “iron factories”) and a clause banning all “nuisance” or “noxious” uses (or some similar term).27 It came to pervade nineteenth- and twentieth-century deeds,28 was cataloged in multiple books of legal forms,29 and persisted well into the World War II era in lists of recommended deed provisions promulgated by the Federal Housing Administration and the consortium of suburban developers forming the Urban Land Institute.30 And as this Article will explore, the decades of litigation over these covenants had effects on both ordinary nuisance law and the debates over property regulation.
This Article proceeds in four parts. Part I identifies and traces the history of the nuisance covenant. To set the stage, it discusses the early uses of deed restrictions in land planning. Most work on covenants has focused on two features: the role of covenants in establishing suburbs and homeowners’ associations,31 or the (quite related) use of racial covenants in deeds meant to exclude Black residents from owning or leasing property.32 While both these innovations are deserving of the attention and criticism they have received, the earlier history of the covenant reveals a forgotten battleground: the use of covenants to evade technical hurdles in bringing nuisance cases, a tactical choice with unexpected consequences. By inscribing nuisance into deed restrictions, it turns out, owners achieved myriad new capacities to control neighboring land uses that helped them escape limitations imposed by both tort law and covenant law taken independently. The open-ended terms “noxious” and “nuisance” could encompass uses not yet known by the covenant drafter despite the rule that covenants were to be strictly interpreted as restraints on free use. Far more importantly, breach of the nuisance covenant proved injury without need for the affected owners to reach a certain threshold of damage, an imposing barrier to nuisance plaintiffs. This legal device expanded owner capacity to control neighboring use types at a time when residents were seeking more separation between work and home — and also new forms of separation along class lines.
Part II moves to a period in which nuisance covenants came under greater stress and scrutiny: perhaps predictably, with the rise of the apartment building. While nuisance covenants had operated with relative consistency up until that point, the apartment disrupted them almost immediately, as judges refused to find that these new uses fit within the nuisance prohibitions that had helped to control and protect residential areas. Over several decades, landowners tried and failed to prevent apartments with covenant law, a strategy simultaneously pursued with mixed effect to stop new uses associated with the car and new forms of work and business taking place inside the residence.
Part III turns to parallel developments in public law, both caused and influenced by this private law history. In waging the fight against apartments under covenant law, owners and attorneys developed a set of arguments about nuisance’s mutability: combining a freedom-of-contract sensibility with underlying tort law principles, they argued that harms could be affirmatively declared ahead of time, not merely recognized once underway. Of course, the failure of these arguments paved the way for zoning regulation; the inability of covenants to prevent apartments acted as a rallying cry for Progressive-era advocates of zoning ordinances. Moreover, though, these arguments made to expand the reach of covenants paralleled those that would be made to support the constitutionality of zoning in Euclid. Indeed, by the time of that case, members of the real estate bar had been trying to use contracts to tweak the definition of nuisance for a hundred years.33 One hears echoes of the earlier debates involving nuisance covenants in the arguments made by proponents of zoning, as concepts like “near-nuisance” and “noxious non-nuisance” would become constitutional canon when Euclid recognized these uses as within the state’s regulatory reach. Without intending to minimize the significance of the leap from private covenants to prospective regulation, examining the debates over the apartment reflects existing tensions about the role nuisance law should play in evaluating how private parties and government representatives attempted to regulate land use. In covenant law, these arguments met a different fate than they would in the public law context.
Part IV examines the conceptual and practical significance of this account. First, it examines how covenants and deed restrictions transmitted prevailing conceptions of harmful land uses among developers, owners, lawyers, and judges, helping to shape norms surrounding reasonable uses in residential neighborhoods. Second, it considers what this dialogue between private and public law reveals about the relationship between these arenas. The stories of the apartment and the nuisance covenant indicate how private law developments may affect perceptions of what is reasonable and harmful in property law and what counts as a legitimate exercise of government power. Private law exists behind and in tandem with public regulation in ways to which those focused on zoning reform should be attentive.
* Assistant Professor of Law, Harvard Law School. This paper has benefited from workshop par-ticipants in the Harvard Law School Faculty Workshop, Duke University School of Law Faculty Workshop, Vanderbilt Law School Faculty Workshop, Southern Methodist University Law School Faculty Workshop, Harvard Private Law Workshop, Yale Law School Property Seminar, and the Boston Area Juniors’ Roundtable. I am grateful for comments from Jack Brady, Danielle D’Onfro, Bob Ellickson, John Goldberg, Debbie Hellman, John Infranca, Liz Papp Kamali, Noah Kazis, Cynthia Nicoletti, Claire Priest, Carol Rose, Rich Schragger, Joe Singer, Henry Smith, Kristen Stilt, and Rory Van Loo and helpful discussions with Niko Bowie, Ben Eidelson, Chris Essert, Dan Farbman, Nolan Gray, Hiba Hafiz, Claudia Haupt, Louis Kaplow, Larissa Katz, Anna Lvovsky, Kevin Lyons, Phillip Morgan, Portia Pedro, Ezra Rosser, Blaine Saito, Stephen Smith, Lyle Solla-Yates, James Stern, Rebecca Tushnet, and David Waddilove. Chris Hall, Juan Palacio Moreno, Sasha Peters, Ross Slaughter, Natassia Velez, and the librarians at Harvard Law School provided outstanding research assistance, particularly in the midst of a pandemic that substantially increased the difficulty of acquiring materials. Lastly, I am indebted to the editors of the Harvard Law Review for their editorial suggestions. In memory of Anne Fleming, a role model for kindness and enthusiasm both in her love for those corners of private law that others might find dry and in her treatment of the everyday characters that form its history.