Zoning in 20th-Century American Cities
Summary and Keywords
Zoning is a legal tool employed by local governments to regulate land development. It determines the use, intensity, and form of development in localities through enforcement of the zoning ordinance, which consists of a text and an accompanying map that divides the locality into zones. Zoning is an exercise of the police powers by local governments, typically authorized through state statutes. Components of what became part of the zoning process emerged piecemeal in U.S. cities during the 19th century in response to development activities deemed injurious to the health, safety, and welfare of the community. American zoning was influenced by and drew upon models already in place in German cities early in the 20th century. Following the First National Conference on Planning and Congestion, held in Washington, DC in 1909, the zoning movement spread throughout the United States. The first attempt to apply a version of the German zoning model to a U.S. city was in New York City in 1916. In the landmark U.S. Supreme Court case, Ambler Realty v. Village of Euclid (1926), zoning was ruled as a constitutional exercise of the police power, a precedent-setting case that defined the perimeters of land use regulation the remainder of the 20th century.
Zoning was explicitly intended to sanction regulation of real property use to serve the public interest, but frequently, it was used to facilitate social and economic segregation. This was most often accomplished by controlling the size and type of housing, where high density housing (for lower income residents) could be placed in relation to commercial and industrial uses, and in some cases through explicit use of racial zoning categories for zones. The U.S. Supreme Court ruled, in Buchanan v. Warley (1917), that a racial zoning plan of the city of Louisville, Kentucky violated the due process clause of the14th Amendment. The decision, however, did not directly address the discriminatory aspects of the law. As a result, efforts to fashion legally acceptable racial zoning schemes persisted late into the 1920s. These were succeeded by the use of restrictive covenants to prohibit black (and other minority) occupancy in certain white neighborhoods (until declared unconstitutional in the late 1940s). More widespread was the use of highly differentiated residential zoning schemes and real estate steering that imbedded racial and ethnic segregation into the residential fabric of American communities.
The Standard State Zoning Enabling Act (SSZEA) of 1924 facilitated zoning. Disseminated by the U.S. Department of Commerce, the SSZEA created a relatively uniform zoning process in U.S. cities, although depending upon their size and functions, there were definite differences in the complexity and scope of zoning schemes. The reason why localities followed the basic form prescribed by the SSZEA was to minimize the chance of the zoning ordinance being struck down by the courts. Nonetheless, from the 1920s through the 1970s, thousands of court cases tested aspects of zoning, but only a few reached the federal courts, and typically, zoning advocates prevailed.
In the 1950s and 1960s, critics of zoning charged that the fragmented city was an unintended consequence. This critique was a response to concerns that zoning created artificial separations among the various types of development in cities, and that this undermined their vitality. Zoning nevertheless remained a cornerstone of U.S. urban and suburban land regulation, and new techniques such as planned unit developments, overlay zones, and form-based codes introduced needed flexibility to reintegrate urban functions previously separated by conventional zoning approaches.
Keywords: zoning, Standard State Zoning Enabling Act, Ambler v. Euclid (1926), racial zoning, New York Zoning Resolution (1916), Edward M. Bassett, planned unit development, exclusionary zoning, overlay districts, form-based codes
Zoning is the exercise of public control over private property through a legal instrument available to local government to regulate real property, including buildings and structures, by designating districts according the nature and extent of their use. Zoning is intended to enable orderly growth of a city, town, village, or county according to a framework for development that seeks to ensure that incompatible uses do not undermine the quality or value of real property. Local governments determine the character of the real property within their jurisdictions and its fitness for particular uses in accordance with a master plan. The comprehensive approach to designating districts as residential, commercial, and industrial avoids the problem of arbitrary exercise of government power. Zoning emerged early in the 20th century as the most widely used land planning tool to correct problems associated with random land development, especially in cities where the incursion of certain environmentally harmful industrial uses jeopardized property values in areas of predominantly residential and commercial uses. The greatest impact of zoning was in determining the form of new development in the suburbs surrounding the urban core, which became the primary site of urban growth beginning after 1920. The Supreme Court decision Euclid v. Ambler Realty (1926) cleared the way for zoning to be upheld as a legitimate exercise of the police power. Subsequently, nearly all states adopted some form of zoning regulation.
The relatively simple zoning schemes legitimized under the Euclid decision exerted a powerful influence over land use changes in localities throughout the United States after 1940. Zoning classifications became substantially more refined, thereby ensuring even more segregated patterns of land use and development. This was largely in response to the perception that sustaining property values was best accomplished by preserving strict separation of different land uses according to size and density. This also generated new criticism of the rigidity and unintended consequences of conventional zoning schemes. New zoning techniques were introduced to create more flexibility in zoning systems, including planned unit developments (PUD), transfer of development rights (TDR), zoning overlay districts, and traditional neighborhood development (TND). More recently, some have argued that the whole system of structured land use districts for city and suburbs should be eliminated in favor of a system known as form-based codes.
19th-Century Precedents for Zoning
Defining the power of municipalities to regulate public health, park construction, transportation networks, and water and sewer systems were key challenges of expanding 19th-century cities. This required a public intervention into land use regulation that provided the legal foundations to support zoning.1 As Schultz noted, the expanded scope of authority of the municipal corporation provided the legal basis upon which city planning and zoning eventually rested.2 The application of Dillion’s rule—that cities only had powers granted by states—impeded full development of land use regulations. A precedent setting case was Vanderbilt v. Adam, 7 Cowen 349 (NY 1827).3 It concerned the ability of the City of New York to regulate ship docking at private wharves and the concept that it was in the interest of public welfare to deal with urban densities, and it justified public exercise of the police power. The case was widely cited in support of urban policing of property uses.4 The Massachusetts Supreme Court in 1899 upheld a Boston ordinance regulating the height and mode of building construction as a proper use of the police power.5 University of Chicago professor of law Ernest Freund, in The Police Power: Public Policy and Constitutional Rights, (Chicago: Callaghan, 1904) defended the inalienable character of the police power, and argued that it be exercised “flexibly to effect the greatest good for the greatest number of people.” He accentuated the positive characteristics of policing power to promote the general welfare that was increasingly embraced by courts.
A major push for zoning occurred in conjunction with work of the Committee on Congestion of Population in New York City. New York City settlement house leaders hired Benjamin C. Marsh as the Committee’s first Executive Director in 1907. After travelling to Europe to study British, French, and German approaches to house and city planning, the Committee staged an exhibition in 1908, at the American Museum of Natural History, which graphically depicted the problems of overcrowding. The exhibition moved on to Washington in 1909, and prompted the first National Conference on City Planning and Congestion,6 and led to the publication of An Introduction to City Planning: Democracy’s Challenge & the American City (1909). Frankfurt, Germany was celebrated as an ideal model, convincing Marsh that “the most important part of City Planning, as far as the future health of the city is concerned, is the districting of the city into zones.”7 Although Marsh initially pushed the innovative notion of German-style zoning, he devoted more energy to the radical “single tax” scheme of Henry George and the efforts to relieve congestion by taxing property being held for speculative purposes. This put him at odds with others in the mainstream of the nascent U.S. planning movement, which quickly embraced zoning as the most effective tool to ensure that planning would result in desired changes on the ground.8 New York City real estate interests resisted Marsh’s cheap land strategies, but acknowledged that zoning could stabilize uncertain real estate conditions. Thus, they backed the nation’s first comprehensive zoning law in New York City in 1916.9
The German model that Marsh highlighted in Frankfurt-on-the-Maine was advanced by Frankfurt’s reform-minded Mayor Franz Adickes in 1891. This model, based upon a concept first advanced in 1876 by Reinhart Baumeister of the Technical University in Karlsruhrwhich, created six zones, two for residential uses, two for mixed uses, and two for factories, and set density and building bulk requirements.10 Similar ordinances emerged in various German cities (Berlin, 1892; Hamburg, 1896; Stuttgart, 1897; Mannheim, 1901; Hanover, 1902; Nuremberg, 1903; and Munich, 1903) during the next decade. Contemporaneous zoning initiatives in the United States started with controlling building heights in business districts, largely to ensure access to light and air. The other zoning focus was on regulating the location of certain undesired businesses, such as Chinese-run laundries.11 San Francisco and Modesto, California ordinances in the 1880s regulated commercial laundries to certain areas and were upheld as legal; Los Angeles had similar ordinances. As Logan noted, “Between 1909 and 1915, Los Angeles established 27 industrial districts and about 100 residence exception districts and about 100 exception districts,” which allowed all but heavy and objectionable industries.12 In 1898, a Massachusetts state statute limited the height of buildings in central Boston around Copley Square and the State House on Beacon Hill. Although the New York City building zone resolution passed by the Board of Estimate and Apportionment in 1916 is commonly cited as the first comprehensive zoning ordinance, other city-wide zoning schemes—one in Baltimore, Maryland, and the other in Richmond, Virginia—created city-wide zoning based upon racial occupancy.
One of the key distinctions between the German and U.S. approaches to zoning was the separation of uses, which was not a central objective in German zoning.13 In contrast to the German model, the U.S. version of zoning consistently sought to regulate land use in terms of the likely population those uses served, and for the express purpose of separating the undesirable classes from the more affluent.14 German zoning rarely utilized exclusively single family zones. But it is significant to note that “the overzealous separation of homes from commercial services and places of employment was not present in the early applications of zoning in either Germany or the United States.”15 Eventually, the separation of uses zoning became the end in itself, which differed from the original intent.
Conflicts between the existing and future land use needs generated efforts to regulate growth as urban communities expanded in the early 20th century. In Los Angeles, the Hadacheck Brickworks opened in an unannexed fringe of the city in 1902. When the city annexed the area and residential development began in the neighborhood, the city passed an ordinance to shut down the brickworks. Hadacheck claimed that this amounted to an unlawful taking of his property. In Hadacheck v. Sebastian (1915), the U.S. Supreme Court ruled that the nuisance created and continued by the business would preclude proper development of the city. Thus, the exercise of the police power to remove the brickworks nuisance was warranted and legal. Overturning the city’s ordinance would “preclude development and fix a city forever in its primitive condition,” in the Court’s opinion. “There must be progress, and if in its march private interests are in the way, they must yield to the good of the community.”16
The 1916 New York City Building Zone Plan Resolution
The 1916 New York City Building Zone Plan is commonly and incorrectly regarded as the nation’s first zoning ordinance in an American city. The Plan was based upon a comprehensive assessment of land use conditions and was instrumental in advancing the approach, legality, and popularity of zoning as a land development regulating tool. In response to unregulated growth of tall buildings in the city’s commercial heart, the widely held belief that blocking natural air and light generated harmful health effects, and the perception that unregulated design of new buildings created congestion on the ground, Manhattan Borough President George McAneny proposed in 1913 that the concept of zoning districts be explored. This was two years after the deadly Triangle Shirtwaist Factory fire, an event that was blamed on unregulated building construction. Edward M. Bassett chaired the Heights of Building Commission that produced a detailed report that identified various problems with unregulated tall buildings, and that posited that using zoning to regulate building was constitutional. Like Marsh, Bassett had traveled to Europe and drew upon the German model in drafting the New York City resolution. Other advocates for devising ways to reduce urban densities and congestion included New York housing reformer and author of the New York State Tenement Act of 1901 Lawrence Veiller; attorney Robert H. Whitten, who would later participate in defending the Town of Euclid, Ohio in the landmark Euclid case; and planner George B. Ford, worked with Bassett on the New York Building Commission. The New York ordinance was the first that applied both use and bulk restrictions to the entire municipality.17
The New York zone system had only three categories of uses: residential, commercial and unrestricted. The latter was intended to accommodate industrial uses that were excluded from the other two. The use of the unrestricted use district was common in early zoning schemes but disappeared as localities sought to more explicitly identify industrial districts and incorporated finer gradations in the residential and commercial categories. The intent of the 1916 regulation was simply to prevent further incursions by the garment industry into the Fifth Avenue commercial district. The regulation, however, failed to remove those that already existed in the area. These nonconforming uses could not be expanded or replicated if they ceased to operate for any reason. Because zoning did not constitute the power to remove existing uses, it took considerable time for the removal and disappearance of nonconforming uses. Usually, such uses were removed because of decisions by the property owners to relocate or close down for business reasons. Over time, however, the zoning scheme enabled to district to take on the character of a predominantly commercial district.18
The Euclid Case Legitimizes Zoning
The U.S. Supreme Court decision in Village of Euclid v. Ambler Realty Co. (1926) authorized municipal police power to direct and control private land uses in the United States. Cities only had to demonstrate with “reasonable” evidence that the decision promoted the health, safety, and comfort of the general public.19 The Court agreed to review the decision of Judge David C. Westenhaven of the U.S. District Court for the Northern District of Ohio in January 1924, which declared the Euclid ordinance null and void. Interestingly, Ambler Realty counsel argued that the effort of the Village of Euclid to create residential zones provided the affluent with the larger area for light and air, while it called for those who were in congested two-family residences and apartments to be put in the low-lying areas adjacent to construction areas. To maintain the community aesthetic, the plaintiff argued, their zoning ordinance not only “deprived honest businessmen of their due profits; worse they had literally denied the honest working people of the community their place in the sun.”20
Writing for the majority of the Court, the strict constructionist Justice George Sutherland contended that the growing complexities of urban life, with great increases and concentrations of population, required additional restrictions in the use and occupation of private lands in urban communities. The arguments of Euclid were prepared by Alfred Bettman of Cincinnati and Edward Bassett, author of New York City’s 1916 Zoning Resolution. The Euclid defense of zoning was argued by James F. Metzenbaum, a village resident and Cleveland lawyer, who had headed the commission that drafted the village ordinance following passage the state enabling act. Unlike the three-district New York City scheme, Euclid was divided into six height, area, and use districts that restricted the location of businesses, industries, and residences (including the type of housing).
The Euclid case focused on the power of local government to determine how it wanted to develop without reference to any existing nuisance. Unlike in the Hadacheck case, which relied upon proof of a nuisance to uphold the city’s expulsion of the brickyard, Euclid allowed the village to prohibit shops, industries, and apartments from single-family districts on the grounds that these uses had a deleterious effect on the community, much like the nuisance created by the brickyard in Los Angles. But the argument to exclude these uses, as set forth by Charles Henry Cheney, a prominent national planning consultant, in a National Municipal Review article in 1920, captured the prevailing view of the incompatibility of different housing types existing side-by-side. As Cheney put it: “Once a block of homes is invaded by flats and apartments, few new single family dwellings ever go up afterwards. It is marked for change, and the land adjoining is forever held on a speculative basis in the hope that it may all become commercially remunerative generally, without thought for the great majority of adjoining owners who have invested for a home and home neighborhood only.”21 The linkage between zoning and the separation of commercial and industrial uses from residential districts was vividly demonstrated in the case of Los Angeles. With the power to regulate land use through zoning from the 1920s onward, a group of large community builders in the Los Angeles area developed planned neighborhood units of single family homes in the green fields around the city to form what became the modern bedroom suburb.22 Yet shortly after the Euclid decision, Justice Sutherland issued a very different verdict in the case of Nectow v. City of Cambridge (1928). Cambridge, Massachusetts had a zoning scheme similar to that considered in Euclid and was conceded to be constitutional based upon that decision. But Sutherland found that the ways the three districts were drawn put one portion of Nectow’s property in an industrial zone and one portion, which previously but no longer was in residential use, in the residential zone that did not permit any industrial use. The result was that the potential purchaser of the property refused to comply with the contract to buy because of the zoning restrictions. Sutherland’s judgment was that the specific zoning plan did not support the health, safety, convenience, and general welfare of the inhabitants of that part of the city, that the plaintiff was seriously injured financially, and that it violated the due process provisions of the Fourteenth Amendment.23
Standard State Zoning Enabling Act (SSZEA) and Beyond
The Standard State Zoning Enabling Act, disseminated by the U.S. Department of Commerce after 1924, demonstrated that zoning was a national movement even before the Euclid decision. Most states, however, needed to enact enabling legislation in order for their local governments to use it. The first edition of the Act sold 55,000 copies; within two years all but five of the forty-eight states had adopted enabling legislation. This accounted for the 420 local governments that adopted zoning ordinances and many more that were preparing them. By 1929, according to Hubbard and Hubbard, 753 local governments had enacted zoning systems.24
The stated objectives of the zoning system that the SSZEA advanced focused on how zoning lessened congestion caused by overcrowding of land, ensured access in communities to the health and welfare benefits of sufficient light and air (as advanced with the New York zoning scheme of 1916), mitigated against the dangers of fire and disease (also associated with congestion of structures and population), and facilitated the provision of transportation, water, sewerage, schools, parks, and other public requirements by predetermining the scale and intensity of growth. Two other motivating factors behind zoning, “to exclude unwanted people or uses” and to protect property values, were not explicitly mentioned in the act, but were definitely part of public discourse that propelled zoning into a national movement.25 The SSZEA provided the basis for granting power to local governments to zone through a local ordinance. It emphasized that the zone plan needed to be comprehensive rather than piecemeal, that the ordinance would be vetted through a public input process, and that a zoning commission of citizens would oversee the public input process. A separate citizen body would be needed to consider appeals of actions of the zoning commission. This model was closely replicated nationwide because this was seen as the best way to ensure that zoning would stand up to legal scrutiny.
SSZEA ordinances remained the norm throughout the 20th century, relatively consistent with what the Hoover Commission proposed in the 1920s. The SSZEA format consisted of two parts: a text providing the regulations and a map delineating the locations of the various districts or zones. The text included verbal descriptions of the zoning district standards, administrative provisions for changes (such as amendments, variations, and special uses), and nonconformities (that is, uses existing at the time of the zoning ordinances that did not conform to the zone scheme). The map delineated in spatial terms the various use districts in the locality, typically grouped into the general categories of residential, commercial, and industrial. Over time, the basic components of the zoning ordinance remained relatively static, but the complexity and the prescriptive character of the ordinance increased. As planner Walter Blucher noted, in 1955, “the early zoning ordinances were simple and crude, but to a very considerable extent they told a property owner what he might do with his property. Current zoning ordinances are no longer simple: they are terribly complicated and to an increasing extent fail to tell a property owner what he might do with his property as a matter of right.”26
The text of the zoning ordinance set forth a list of permitted uses for each district, along with permitted accessory uses and requirements (such as garage. carport, outbuildings, etc.) and allowable temporary uses. The text also identified parking and space loading zone requirements. Finally, it specified the land intensity or “bulk” standards, such as height, side-front-rear yards, lot coverage, and floor-to-area ratios. Typically, zoning schemes included buffers, which sought to shield higher order uses from lower order uses. So a single-family zone would likely be buffered by a multifamily or apartment zone from either an industrial or commercial zone. In addition, the SSZEA required creation of a body or commission, a board of adjustment, and a process to address amendments to the zoning scheme, special exceptions, and appeals.
Racial Origins of Zoning
The prevailing focus of zoning history scholarship and relevant court cases on its use to regulate and shape the built environment and to protect property values obscures past prevailing social objectives. According to legal scholar Yale Rabin, the post-Euclid legacy of zoning expanded from “a means of improving the blighted physical environment in which people lived and worked to a mechanism for protecting property values and excluding the undesirables.”27 In the early 20th century, two groups regarded as undesirables were newly arrived immigrants and African Americans. The first comprehensive racial zoning ordinance in the United States appeared in Baltimore in 1910, before either the New York City or Euclid plans, although several California cities had for decades employed “police power” to control the spread of Chinese laundries outside Chinese neighborhoods. Local white attorney Milton Dashiel fashioned Baltimore’s racial zoning plan immediately following the momentous decision of black attorney, George W. F. McMechen, to move into the fashionable Eutaw Place neighborhood. Dashiel’s plan moved methodically through both branches of city council despite immediate protests from black residents. Mayor J. Barry Mahool, a nationally recognized member of the “social justice” wing of the national Progressive movement, supported this pioneering racial zoning ordinance and signed it into law in December 1910. Mahool subscribed to the position that “Blacks should be quarantined in isolated slums in order to reduce the incidents of civil disturbance, to prevent the spread of communicable disease into nearby White neighborhoods, and to protect property values among the White majority.”28
Passage of the Baltimore ordinance drew national attention and unleashed a flood of similar laws in Southern cities. In Virginia, Richmond, Norfolk, Portsmouth, Roanoke, and Ashland enacted modified versions of the Baltimore ordinance. Atlanta, Georgia, Greenville, South Carolina, Asheville, and Winston-Salem, North Carolina; Birmingham, Alabama; and Madisonville and Louisville, Kentucky joined in the racial zoning movement. Other cities, including Charlotte, North Carolina; Charleston, South Carolina; Meridian, Mississippi; and New Orleans, Louisiana considered, but did not immediately enact, racial zoning ordinances. In Richmond, for example, the racial zoning ordinance followed immediately after the Virginia Supreme Court of Appeals decision, in 1910, to approve Richmond’s 1908 ordinance regulating the height and arrangement of building (a decision later used also in support of the New York City zoning resolution). Virginia’s enabling legislation allowed cities to zone their entire area according to race, whereas the original Baltimore plan applied only to all-white or all-black blocks. In contrast, the Richmond ordinance stipulated that a “block is White where a majority of residents are White and colored where a majority … are colored.”29 Richmond’s residential segregation ordinance received the blessing of the state’s highest court in Hopkins v City of Richmond (1915), where two individuals, one white and one black, moved together into a house in a designated “White zone” and violated the law. The court ruled there was no taking of rights or value from owner without just compensation since this act occurred after passage of the act, and would have been allowed under the grandfather provision of act had it taken place prior to the act, since it also designate “mixed neighborhoods.” Atlanta’s residential segregation ordinance (1913) initially failed in court for violating state and federal protection of “rights in property acquired previous to its enactment.” A revised version exempted residences acquired before passage of the ordinance, and the Georgia high court sustained the city’s racial zoning plan in 1917.30
The euphoria of segregationists faded quickly, however, when the Supreme Court unanimously struck down the Louisville, Kentucky racial zoning ordinance. In Buchanan v. Warley (1917), the Court ruled unanimously that the denial of full use of property “from a feeling of race hostility” constituted inadequate grounds to uphold the Louisville racial zoning ordinance.31 The immediate impact of the Court’s unequivocal rejection of racial zoning was to vacate existing racial zoning schemes. But it did not end the movement to use zoning to maintain residential racial segregation.32 A law review publication in 1927 contended that preserving social order, not racial hostility, was the overarching objective, since “the comingling of the homes and places of abode of White men and Black men gives unnecessary provocation for miscegenation, race riots, lynching, and other forms of social malaise, existent when a childlike undisciplined, inferior race is living in close contact with a people of more mature civilization.” So long as zoning did not deprive owners of property previously acquired, pro-racial zoning advocates believed that it would be upheld as constitutional even when it involved racial motives.33 The Buchanan ruling proved to be narrow in scope, because it focused just on the matter of denying property rights and was silent on the 14th Amendment’s equal protection clause. Thus Holt concluded that, so long as zoning did not result in a taking of property from minorities, it could stand. But, with later efforts to utilize various tools of exclusion under the guise of protecting property values, the effect of denial of equal protection raised new challenges to the system.
Throughout the 1920s, revised racial zoning plans emerged in Atlanta, Georgia; Charleston, South Carolina; Roanoke, Virginia; Kingsport, Tennessee; and New Orleans, Louisiana, although all ran afoul of the Buchanan decision.34 By the 1930s, the racial zoning movement had run its course, but not so the interest in the racial imperatives of land use regulations. The 1930s and 1940s constituted an important period in local planning, since many cities that had previously devised plans that called for separate black sections of the cities found new ways to accomplish this goal. Public housing and slum clearance provided new resources to reconstruct the social landscape to achieve racial separation, and Southern and non-Southern cities eagerly participated in these efforts. Exclusionary zoning practices with the effect of racial separation represented another strategy that withstood both legal and political challenges.
Zoning Comes of Age
Between the Euclid decision (1926) and the mid-1970s, the U.S. Supreme Court was largely silent on zoning. Instead, state courts served as arbiters of what had become the most widely used instrument to control land development. With explicitly race-defined zones no longer a legally sustainable option, but with race and ethnicity issues still alive in the United States, a variety of tools were used to maintain the color line. These included restrictive covenants that prohibited blacks and other minorities from owning property, manipulation of the real estate market to deny access to property, restricting the location of multi-family properties (including public housing) to safeguard single-family homeowners from the introduction of low-income populations, and setting high minimum building, lot size, and setback requirements within zoning regulations to ensure that the mixed-income neighborhoods of the 19th century would not be possible in the newly created urban and suburban communities. While cities typically enacted zoning ordinances that allowed for some mixing, at least in adjacent districts of different land uses, the long term effect of city zoning schemes was to eliminate mixed-use districts. As a result, many remaining vestiges of residences in the core areas were pushed out as property converted to commercial uses. Where zoning had its most noticeable impact was in creating the single-family home suburbs. As land use attorneys Clifford Weaver and Richard Babcock note in City Zoning: The Once and Future Frontier, “the history of zoning in [the] past half-century [since 1926] has been largely written in the suburbs …”35 More than 10,000 zoning cases were decided between 1926 and 1976, the overwhelming majority involving zoning issues in the suburbs, not cities. Issues such as the legality of planned developments, the introduction of flexible zoning, and the wide array of exclusionary devices kept the courts busy refining the increasingly more complex zoning system.
An inventory of city and county land use regulations compiled and released in 1937 by the National Resources Planning Board indicated that 1,390 cities and counties had zoning ordinances, and there were 517 subdivision ordinances, the other legal tool to control development.36 Generally, the courts sustained broad authority for local government to regulate land use both through zoning and subdivision controls. The American Society of Planning Officials noted in 1938 that many of the earlier ordinances were in the process of scaling down the size of commercial, industrial, and multifamily districts to more closely link to the community needs, but were also beginning to exclude new residences from industrial districts, except for the newly popular manufactured homes that were assigned to commercial and industrial zones, and adjusting parking requirements to keep the vehicles off streets in new developments.37 Only during World War II was there pressure to relax zoning restrictions in order to allow war-demanded multifamily housing and industrial facilities in places where the existing zoning disallowed these uses. More often, local zoning was increasingly restrictive regarding the location of uses. But they were also more firmly grounded in data derived from land use surveys and economic assessments that helped to determine both the size and location needed for industrial and commercial zones. The planned unit development concept was introduced to allow diversified uses within newly created communities, and in large cities revised zoning regulations more precisely distinguished between types of commercial uses.38
The reshaping of urban land and the consolidation of commercial and industrial zones was facilitated through the federally sponsored urban renewal, which kicked off in the 1949 Housing Act and expanded through the 1954 Urban Redevelopment Act. Urban renewal enabled the acquisition and reformation of urban land uses, a process made possible either through direct purchase of blighted areas or, if necessary, with condemnation under police powers available through eminent domain. Berman v. Parker (1954) established the authority of local government to take private property through eminent domain and, in this case, property that the owner claimed was not in a blighted condition but which the public needed to reconstruct the area. The Berman decision substantiated that the public purpose of eliminating blighted conditions did not violate the Fifth Amendment protection against private property being taken for public purpose without just compensation. The decision sanctioned the use of police power to achieve aesthetic objectives as well as to remove blighted condition to facilitate rebuilding.39 Urban renewal projects across the United States cleared and rebuilt the inner areas of cities based upon the conceptions of the modern city contained in the general plans required to secure federal financing. The situation in the suburbs was very different, driven by the federal mortgage insurance program of the Federal Housing Administration, which propagated new development based almost exclusively upon single-family construction in large planned communities.
Recasting Land Use Regulations
The onset of a sustained critique of the Euclidian zoning can be traced to the publication of Jane Jacob’s Death and Life of Great American Cities. Her iconoclastic critique of the principle tools of planning, including zoning, urban renewal, and transportation planning aimed at facilitating widespread reliance on the automobile transformed urban planning in general and zoning in particular. Drawing upon her experiences living in New York City’s Greenwich Village, Jacobs challenged city planners who had “branded whole areas substandard, zoned cities into dull, single-use districts, delighted in divisive freeways, and created dangerous open spaces in which hoodlums lurked and attacked.”40 Jacobs was not fundamentally opposed to the objectives of zoning to achieve some desirable order, but rather disturbed that this powerful land regulation tool eliminated the diversity of places that make cities so vibrant. As she put it, “City districts will be economically and socially congenial places for diversity to generate itself and reach its best potential if the districts possess good mixtures of primary uses, frequent streets, a close-grained mingling of different ages in their buildings, and a high concentration of people.”41 These typically were land use traits that zoning plans often sought to eliminate. As Jacobs pointed out, trying to preserve small neighborhood commercial business in a residential neighborhood was incompatible with the existing zoning theory that sought to separate them. Although the residences might remain if part of the district was changed to a commercial designation, this might also invite other less neighborhood-friendly enterprises that would undermine the diversity that was being sought. But if there was no change, the existing small businesses were there only by exemption or in violation of zoning. So the question was “what kind of categories in the new zoning will be least at odds with the needs of real life?”42
That became the quest among many planners and urban reformers like Jacobs for the last portion of the 20th century, but without doing away with zoning or other public approaches to land use regulation. One innovation to offset some of the limitations of more rigid zoning and to achieve the diversity that Jacobs advocated was the use of overlay districts, a regulatory tool that created special zoning districts, placed over existing base zones, and identified special provisions in addition to those in the underlying base zone. The overlay district shared common boundaries with the base zone or cut across base zone boundaries. Regulations or incentives were attached to the overlay district to protect a specific resource or guide development within a special area. Overlay districts were and have been used to protect natural resources or to deal with site limitations not covered by the underlying zone such as steep slopes, unsuitable soils, flood hazards, or protection of vulnerable places. It was also used to acknowledge and address the needs of cultural resources such as historic assets in historic districts or to create neighborhood commercial districts.
The use of form-based codes was another of the alternatives (or additions) to Euclidian zoning, by substituting the two-dimensional approach of assigning land uses to properties for one that is based upon a three-dimensional vision of how spaces should be ordered. Form-based codes did not entirely do away with conventional zones but added to the zoning scheme attention to the design of the buildings, their relationship to streets and open spaces, and to patterns of intensity from the less dense of the fringe to the more intense of the inner city. These and other innovations in land development control regulations will forge the basis for the 21st century of urban and regional development and planning.43
Discussion of Literature
An abundant literature exists on the development of zoning in the United States, beginning with the 19th-century precedents thoroughly covered in Stanley K. Schultz, Constructing Urban Culture: American Cities and City Planning, 1800–1920. Also valuable is an article by Jon C. Teaford, “Special Legislation and the Cities, 1865–1900.” The classic text overview of zoning development in the United States is Seymour I. Toll, Zoned America. The key case law from the 19th century is treated in Ernest Freund, The Police Power: Public Policy and Constitutional Rights. This is supplemented by Norman Williams, American Planning Law.44
The publication that helped spur the zoning movement in the United States is Benjamin C. Marsh, An Introduction to City Planning: Democracy’s Challenge & the American City. The influence of European approaches to land use regulation which the Marsh publication advanced is analyzed thoroughly in Sonia A. Hirt, Zoned in the USA: The Origins and Implications of American Land-Use Regulation and Thomas H. Logan, “The Americanization of German Zoning” Journal of the American Institute of Planners.45
The basics of the New York City Zoning Resolution of 1916 and the Euclid case can be found in most planning and zoning histories, such as Mel Scott, American City Planning Since 1890 and Charles M. Haar and Jerome S. Kayden, Zoning and the American Dream. The most thorough assessment is Michael Allan Wolf, The Zoning of America: Euclid v. Ambler. Also useful is Edward M. Bassett, Zoning: the laws, administration, and court decisions during the first twenty years, given Bassett’s role in presenting a brief in support of zoning for the Village of Ambler. How the early zoning schemes shaped suburban development is explored in Marc A. Weiss, The Rise of the Community Builders: The American Real Estate Industry and Urban Land Development. The growth of the zoning movement in U.S. cities and suburbs in the 1920s is documented in Hubbard Theodora K. and Henry V. Hubbard, Our Cities of Today and Tomorrow: A Survey of Planning and Zoning Progress in the United States.46
The use of zoning to achieve residential segregation by race has been the subject of writings both during the period prior to and after the US Supreme Court decision in Buchanan v. Warley (1917). See Gilbert T. Stephenson, “The Segregation of the White and Negro Races in Cities,” South Atlantic Quarterly; Christopher Silver, “The Racial Origins of Zoning in American Cities,” June Manning Thomas and Marsha Ritzdorf, Urban Planning and the African American Community: In the Shadows; Garret Power, “Apartheid Baltimore Style: The Residential Segregation Ordinance of 1910–1913,” Maryland Law Review 42 (1983): 296–301; and Roger L. Rice, “Residential Segregation by Law, 1910–1917,” in the Journal of Southern History. The ongoing efforts to use zoning to advance exclusionary objectives aimed at blacks, other minorities and the poor is the focus of Yale Rabin, “Expulsive Zoning: The Inequitable Legacy of Euclid,” in Haar and Kayden, Zoning and the American Dream; and Marsha Ritzdorf, “Locked Out of Paradise: Contemporary Exclusionary Zoning, the Supreme court, and African Americans, 1970 to the Present,” in Thomas and Ritzdorf, Urban Planning and the African American Community.47
The development of zoning into one of the key tools by communities to advance implementation of the plans, and to offset some of the limitations of Euclidian zoning through innovative strategies such as planning unit developments, overlay zones, and more recently form-based codes is discussed thoroughly in Barry Cullingworth and Roger W. Caves, Planning in the USA: Policies, Issues, and Processes. The most widely cited critique of zoning’s impact on urban vitality is presented forcefully in Jane Jacobs, The Death and Life of Great American Cities. The best recent assessment of how land use regulations have influenced urban form that includes a discussion of form-based codes, see Emily Talen, City Rules: How Regulations Affect Urban Form.48
(1.) Stanley K. Schultz, Constructing Urban Culture: American Cities and City Planning, 1800–1920. (Philadelphia: Temple University Press, 1989), 59.
(2.) Schultz, Constructing Urban Culture, 62.
(5.) Attorney General v. Henry B. Williams and others, 174 Mass. 476 (1899).
(6.) Harvey A. Kantor, “Benjamin C. Marsh and the Fight over Population Congestion,” Journal of the American Institute of Planners 40 (November 1974): 423–427.
(7.) Benjamin C. Marsh, An Introduction to City Planning: Democracy’s Challenge & the American City. (New York: Privately Published, 1908), 28.
(8.) Kantor, “Benjamin C. Marsh and the Fight,” 428.
(10.) Thomas H. Logan, “The Americanization of German Zoning,” Journal of the American Institute of Planners 42 (October 1976): 379. Also see, Sonia A. Hirt, Zoned in the USA: The Origins and Implications of American Land-Use Regulation (Ithaca, NY: Cornell University Press, 2014).
(11.) Logan, “The Americanization of German Zoning,” 381.
(13.) Logan, “The Americanization of German Zoning,” 383.
(15.) Logan, “The Americanization of German Zoning,” 383–384.
(16.) Cited in Barry Cullingworth and Roger W. Caves, Planning in the USA: Policies, Issues, and Processes, 3d ed. (London and New York: Routledge, 2009), 67; and Ernest Freund, The Police Power: Public Policy and Constitutional Rights (Chicago, 1904).
(17.) Michael Allan Wolf, The Zoning of America: Euclid v. Ambler (Lawrence: University Press of Kansas, 2008), 26–28; and Raphael Fischler, “The Metropolitan Dimension of Early Zoning: Revisiting the 1916 New York City Ordinance,” Journal of the American Planning Association 64 (1998): 170–188.
(18.) Cullingworth and Caves, 69.
(19.) Schultz, Constructing Urban Culture, 80.
(21.) Edward M. Bassett, Zoning: the laws, administration, and court decisions during the first twenty years (New York: Russell Sage Foundation, 1936); and C. H. Cheney, “Zoning in Practice,” National Municipal Review 9 (1920): 31–43, quoted in Cullingworth and Caves, p. 74.
(22.) Weiss, Marc A., The Rise of the Community Builders: The American Real Estate Industry and Urban Land Development (New York: Columbia University Press, 1987), 105–106.
(23.) David L. Callies, and Robert H. Freilich, Cases and Materials on Land Use (St. Paul, MN: West Publishing Co., 1986), 42–45; and Nectow v. City of Cambridge, 277 U.S. 183, 48 S. Ct. 447, 72 L.Ed. 842 (1928).
(24.) Theodora K. Hubbard and Henry V. Hubbard, Our Cities of Today and Tomorrow: A Survey of Planning and Zoning Progress in the United States (Cambridge, MA: Harvard University Press, 1929).
(25.) Cullingworth and Caves, 72.
(26.) Blucher quoted in Callies and Freilich, Cases and Materials, 47.
(27.) Yale Rabin, “Expulsive Zoning: The Inequitable Legacy of Euclid,” in Zoning and the American Dream, ed. Charles M. Haar and Jerome S. Kayden (Washington, DC: American Planning Association, 1989), 105.
(28.) Garret Power, “Apartheid Baltimore Style: The Residential Segregation Ordinance of 1910–1913,” Maryland Law Review 42 (1983): 301.
(29.) Christopher Silver, “The Racial Origins of Zoning in American Cities,” in Urban Planning and the African American Community: In the Shadows, ed. June Manning Thomas and Marsha Ritzdorf (Thousand Oaks, CA: SAGE, 1997), 27–28; Gilbert T. Stephenson, “The Segregation of the White and Negro Races in Cities,” South Atlantic Quarterly 13 (1914): 1–18; and Stanislaw J. Makielski, Local Planning in Virginia: Development, Politics and Prospects (Charlottesville University of Virginia Institute of Government, 1964), 17.
(30.) Hopkins v. City of Richmond, 117 Va. 692, 86 S.E. 139–148 (1915); Carey v. City of Atlanta, 143 Ga. 192, 84 S.E. 456 (1915); and Harden v. City of Atlanta, 147 Ga. 248, 93 S.E. 401 (1917).
(31.) Buchanan v. Warley, 245 U.S. 60 (1917); Power, 312–313; and Roger L. Rice, “Residential Segregation by Law, 1910–1917,” Journal of Southern History 64 (1968): 179–199.
(32.) George D. Hott, “Constitutionality of Municipal Zoning and Segregation Ordinances,” West Virginia Quarterly 33 (1927): 344–345.
(33.) Hott, “Constitutionality of Municipal Zoning,” 348–349.
(34.) Major Gardner, “Race Segregation in Cities,” Kentucky Law Journal 29 (1941): 213–219.
(35.) Clifford L. Weaver and Richard Babcock, City Zoning: The Once and Future Frontier (Chicago: American Planning Association Press, 1979), 13–14.
(36.) Weiss, The Rise of the Community Builders, 5.
(37.) Mel Scott, American City Planning Since 1890 (Berkeley: University of California Press, 1971), 349–350.
(38.) Scott, American City Planning, 483.
(39.) Berman v. Parker, 348 U.S. 26 (1954).
(40.) Scott, American City Planning, 592.
(41.) Jane Jacobs, The Death and Life of Great American Cities. New York: Random House, 1961), 242.
(42.) Jacobs, The Death and Life, 235.
(44.) For zoning precedents in the 19th century, see Stanley K. Schultz, Constructing Urban Culture: American Cities and City Planning, 1800–1920 (Philadelphia: Temple University Press, 1989); also Jon C. Teaford, “Special Legislation and the Cities, 1865–1900,” American Journal of Legal History 23 (1979): 189–212. The classic overview is Seymour I. Toll, Zoned America (New York: Grossman, 1969). The key case law from the 19th century is in Freund, The Police Power (Chicago, 1904), supplemented by Norman Williams, American Planning Law (Chicago: Callaghan, 1975).
(45.) See Marsh, An Introduction to City Planning (1908) for the beginnings of the zoning movement, while European approaches are described in Hirt, Zoned in the USA; also Logan, “The Americanization of German Zoning.”
(46.) For the basics, see Scott, American City Planning Since 1890; and Haar and Kayden, ed., Zoning and the American Dream. Allan Wolf, The Zoning of America is the most thorough assessment, and Bassett, Zoning: The Laws, is quite useful. Early zoning schemes are described in Weiss, The Rise of the Community Builders. Hubbard and Hubbard treat zoning in the U.S. in Our Cities of Today and Tomorrow.
(47.) On the topic of zoning to achieve racial segregation, see the Supreme Court decision in Buchanan v. Warley (1917); Stephenson, “The Segregation of the White and Negro Races in Cities”; Silver, “The Racial Origins of Zoning in American Cities”; Thomas and Ritzdorf, Urban Planning and the African American Community, 23–42; Power, “Apartheid Baltimore Style”; Rice, “Residential Segregation by Law”; Rabin, “Expulsive Zoning”; and Ritzdorf, “Locked Out of Paradise: Contemporary Exclusionary Zoning, the Supreme court, and African Americans, 1970 to the Present,” in Thomas and Ritzdorf, eds., Urban Planning and the African American Community, 43–57.
(48.) For discussion of zoning use to advance community planning, see Cullingworth and Caves, Planning in the USA. For a look at the impact of zoning and regulation on urban areas, see Jacobs, The Death and Life of Great American Cities; and Emily Talen, City Rules: How Regulations Affect Urban Form (Washington, DC: Island Press, 2012).