Where Zoning Went Wrong

In previous posts on zoning, I’ve been pretty hard on the Supreme Court’s Euclid v. Ambler decision, which upheld the use of single-use, and specifically single family-only, zones.  In doing so, the nation’s highest court gave the formal stamp of approval to exclusionary zoning, holding among other things that cities were justified in excluding so-called “apartment houses” from residential zones.

The fact that this dispute even reached the Supreme Court in the first place, however, indicates underlying policy choices that occurred somewhat earlier. Professor Sonia Hirt, who has done extensive research in the greatly underexplored comparative zoning realm, has shown how in Germany, a limited number of zoning categories are established at the federal level, with specific implementation left to local governments.  Although localities can choose where to place these zones, they cannot create zones of their own.  Simon Vallee (at Urban Kchoze) has described a very similar regulatory regime in Japan, where the national government has established a list of certain permissible zones that cities may use.  Hirt mentions similar but even more permissive zoning arrangements in other countries such as Serbia, Greece and Bulgaria. 

Notably, whether by coincidence or design, it appears that in none of these cases have state or national governments established single-family detached-only residential zones. In general, these countries establish only floor-area limitations, thereby allowing both single-family and multifamily housing in all residential areas, and also permit small offices and neighborhood commercial even in the most restrictive zones. Importantly, lot size and setback requirements appear to be modest or minimal.

In contrast to the experience of most other countries, the United States, right from the start, delegated zoning

Munich zoning map ca. 1900. From Harvard Library.

powers from states to localities in spite of the fact that early 20th century American planners greatly admired the German zoning system.  The best-known instrument of this delegation, although it was not the first, was the Standard State Zoning Enabling Act, a document first devised in the early 1920s by Herbert Hoover’s Commerce Department.

The Act was a curious document: although it spent many pages devoted to the legal proceduralism of planning commissions, it offered little guidance, and contained no requirements, as to how localities should actually zone. This intriguing and highly consequential omission was not due to lack of interest or expertise.  Edward Murray Bassett, a principal author of New York's 1916 Zoning Resolution and of much of the Enabling Act, authored a handbook on zoning (entitled “Zoning,” what else) in which he laid out its purposes and proper role. Bassett’s work, one of many on the topic from that time period by such men as Harland Bartholomew and Herbert Swan, establishes several major themes to distinguish zoning in the United States which were reflected in the enabling act and which have characterized American zoning practice ever since:

• Approval of the exclusion of commercial activity from residential zones. Bassett seems to have assumed, without explaining further, that excluding all commercial uses from residential areas was a desirable and legitimate end of zoning. Furthermore, he casually elided any distinctions between noxious and harmless uses: "[In] a residence district a home owner may try to carry on a sweat shop or a restaurant or a junk yard. How shall he be prevented? ... The ordinance should make such act unlawful and make provision for ousting the unlawful use." (p. 327).
• Failure to disapprove of the exclusion of multifamily from residential zones. Although Bassett struck a cautionary note toward single-family zones, this appears to have been primarily because he feared (mistakenly, it turned out) that courts would strike down such zones as lacking justification (p. 323-324). This, in turn, might have cast doubt on the fledgling enterprise of zoning. Elsewhere, he advocated for such zones as a means creating preserves for wealthy urban homeowners (p. 323). Bassett also suggested the use of maximum lot coverage ratios as an alternative means of discouraging apartment houses, notwithstanding that such coverage ratios would also have the effect of discouraging single-family homes on very small lots.
• Extreme deference to localities. Bassett recommended that enabling acts transfer power to regulate the height, bulk and use of buildings to cities, apparently without any restriction on how these powers might be deployed in various zones. The states were to retain little or no power in the zoning area under his proposed arrangement, nor were they to provide any guidance except for the very vague suggestions within the Enabling Act.  There was no reason presented for this policy choice, and transportation policy was in fact moving in the opposite direction at the same time, with states and the federal government playing larger roles in planning and building highway routes.
• Insistence on a "comprehensive" plan.  Although European zoning is often conducted on a block-by-block basis according to Prof. Hirt, and frequently leaves large central areas exempt from most restrictions, Bassett and other American zoning advocates insisted that courts would not accept such piecemeal or partial zoning, and that cities should therefore zone every inch of ground under their jurisdiction.  Allowing different zones within small and otherwise similar areas was also assumed to be unconstitutional "spot zoning," and was not advised.  Impliedly, these recommendations would intensify the use-segregated character and monotony of American zoning.  Nonetheless, once the initial plan was in place, selective rezonings (almost always downzonings) of politically influential neighborhoods were carried out and continue to be carried out to this day.
• Irreconcilable conflict between planning and zoning. Bassett acknowledged that "[e]very vital growing city must change and the zoning plan must be capable of change," but quickly clarified that "a high degree of permanency or stiffness must be insisted upon." In other words, although zoning was adopted in the name of looking "mainly to the future," in Bassett's words, in practice, it would be highly resistant to alteration. To achieve this, Bassett included a proposal to limit the power of the city council to alter the zoning plan once it had been established by, in essence, subjecting every proposed zoning change to a referendum requiring 80% support of affected owners (see p. 330). What's more, Bassett's logic against zoning changes used only examples of upzoning or increasing permitted uses (see p. 330).  Downzoning was not critiqued.
• Heavy reliance on legal process as a substitute for sound policymaking. Bassett, an attorney, was apparently aware that such permissive zoning powers might result in extremely restrictive regulations: "The letter of the ordinance and maps may be the extreme of hardship," he noted (p. 330). Rather than address this potential problem by advocating limits on zoning's restrictiveness at the start, Bassett suggested a Board of Adjustment with the power to grant variances. The obvious potential for abuse, graft and corruption in such an arrangement was noted by Bassett's contemporary, Lawrence Veiller, but the substance of Bassett's recommendations was included in the Enabling Act. Bassett dismissed these concerns out of hand in his book by noting that "it is the business of the mayor or appointing power to see that the board is made up of impartial and experienced men." (p. 331).
• Rejection of aesthetic concerns. The City Beautiful movement of the late 19th and early 20th century, although it shared certain policy goals with the early zoning advocates, embraced a traditionally European emphasis on the outward appearance of the city. Architecture was considered an integral part of city planning, and planning literature frequently included lavish illustrations setting forth a compelling aesthetic vision for the city (what might be called a form-based vision).  In Bassett's view, however, aesthetics could not even supply a rational basis for zoning regulations: "If [regulations] are employed ... for aesthetics or some sentimental object, courts will not support them," he wrote. In short, despite his professed admiration for European planning methods, Bassett was waving the white flag before a shot had been fired in the legal battle.  Bassett was wrong again about how the courts would respond, but with most codes having been adopted under the erroneous assumption that such concerns were illegitimate, it would take until the mid-1990s, with the rise of the New Urbanism and the development of form-based codes, that architecture, aesthetics and form were given a more conspicuous role in zoning documents.
• Concern with protecting the wealth of well-to-do homeowners.  Although Bassett stated that zoning "endeavors to protect investments" as a general matter, the investments he cites as examples tend to be those of very wealthy individuals seeking to erect expensive houses ("A man who built a $40,000 home ... was considered highly speculative because in a few years he might have an apartment house on one side and a factory on the other" (p. 316); "[A] man might put up a fine residence ... and find that the council had changed it to business and he was likely to have a butcher store on one side and a grocery on the other" (p. 330).  This was largely the extent of Bassett's social concern, such as it was, in his book. The interests of poor and middle-class residents, whether owners or tenants, went unmentioned by Bassett (in fairness, Andrew Wright Crawford, writing in 1920, claimed that zoning was "for the protection of the poor man," although did not address the exclusion of apartments).
• Lack of comparative focus. Although Bassett claimed to have been inspired to become involved in zoning matters after a visit to an urban design conference in Dusseldorf, his treatise dismisses European planning models early on as inapplicable to American constitutional government, thereby depriving readers of the chance to learn from non-American planning precedents. Bassett even goes so far as to claim that zoning New York took as long as it did because "there were almost no precedents to help," which was only true if one completely disregarded decades of European zoning practice.

Zoning didn't remain an entirely localized concern by any means: the federal government would, only a decade or so later, become indirectly involved though FHA lending practices, and several states have since adopted regional plans, though not one of the 50, so far as I know, sets out zoning categories that cities must use. Federal fair housing laws would also become entwined with local zoning practice in the 1960s and later, but only incidentally. These original purposes, however, have endured with relatively little change and virtually no challenge over the following ninety-plus years.  

I've quoted legal criticism of some of these doctrines in the past, but there was scholarly critique at the time, as well, from progressive authors, some of it quite strident, but most of it now forgotten. For instance, the German-born Bruno Lasker, writing in 1920:

"Whence, to ask a very simple question, do so many of the zoning commissions derive their sanction for dividing the physical make-up of the city into use districts that distinguish between the residential needs of different classes? ... Why, in this country of democracy, is a city government, representative of all classes of the community, taking it upon itself to to legislate a majority of citizens -- those who cannot afford to occupy a detached house of their own — out of the best located parts of the city area, practically always the parts with the best aspect, best parks and streets, best supplied with municipal services and best cared for in every way? Why does it deliberately segregate the foreign-born who have not yet become sufficiently prosperous to buy or rent a home under building regulations which preclude the possibility of inexpensive development and construction?"

Social justice inquiries like these evidently didn't keep a legal-minded pragmatist like Bassett or his allies up at night. What's more difficult to tell is whether, had the federal government not taken such an active role in promoting a vision of local government-based planning and zoning, a more European zoning model might have emerged in some states.

Related posts:

• h/t to Daniel Nairn for the link to Bassett's book from his post Edward Murray Bassett and the Origins of Zoning, which inspired this one.
• Did Zoning Ever Conserve Property Values?