American Zoning as an Expression of Nativism

It's possible to advance many explanations for the rise of zoning in the United States in the 1920s: classism, resurgent racism, reaction to rising vehicular traffic, the failure of restrictive covenants and many more.  While all of these reasons, among others, have some explanatory power, for me they fail to adequately account for the unique and distinguishing features of American zoning as described by author Sonia Hirt, namely, the establishment of exclusively residential zones as well as the creation of single-family detached zones.

A possible alternative explanation is that these specific features were motivated by and in reaction to many of the same conditions that gave rise to the immigration restriction movement which came to prominence at nearly the exact same time.  For example, the village of Euclid's zoning ordinance, which led to the Supreme Court case of the same name, was adopted in November 1922, slightly more than a year after the Emergency Quota Act of 1921 was enacted.  Restrictionist currents were running very strongly throughout the nation at the very time that cities busied themselves passing zoning laws.

Now, one fact that may surprise is that immigrants at the turn of the century actually had higher homeownership rates than the native population.  This chart, compiled by economist Richard Sutch in a recent paper, depicts homeownership by city size in 1900 among the native-born and foreign-born, showing that the foreign-born had substantially higher homeownership in virtually all cities and city sizes apart from New York (the entry point for many immigrants), where the difference was nonetheless small:

How, or why, did the foreign-born achieve relatively high rates of ownership? Sutch speculates that immigrants valued property ownership due to "the importance of acquiring a life-cycle stock of wealth because of an inability to rely upon distant family members, the larger community, or co-ethnic neighbors for protection in old age."  Contrarily, in From Cottage to Bungalow, Joseph Bigott writes about ethnic savings and loan entities in turn-of-the-century Chicago and how these offered greater financial flexibility, in some sense, to new immigrants.

What seems to be generally agreed on is that immigrants, more so than natives, embraced small multifamily dwellings and home commercial uses, whether as simple as a chicken coop in the backyard or as elaborate as an entire storefront added onto a single-family home.  Jacob Wegmann, writing in What Happened to the Three Decker, quotes a developer as noting that the small multifamily dwelling provides "a way for working class folks with no established assets to obtain an owner-occupied residence." Additionally, he writes:

"[I]mmigrant families, many of them already the owners of small businesses, were likelier to be undaunted by the extra risks and work posed by being small landlords, such as the need to build up cash reserves to cover loan payments in the event of vacancy of the rental apartment. Additionally, partially due to Chicago’s characteristic clustering by nationality, many immigrant families have an extensive network of acquaintances from the same ethnic group to draw upon as a pool of potential tenants, and for whom credit and character checks can be undertaken in a verbal, informal manner via social contacts."

The small business and the multifamily dwelling were, in that sense, the gateway to prosperity for many immigrants, as well as a gateway to homeownership, around 1900 and continuing even today.  Given that reality, I think the observer of history should find it very odd how central a position American zoning gave to the exclusion of commercial uses from residential areas and the banning of multifamily uses from large areas of entire cities, particularly when other countries not so well-known for their elevation of so-called property rights embraced neighborhood commercial as a desirable and positive social good. 

Small SF and multifamily housing with added restaurant/retail, Port Chester, NY.

I do not know what the position of Edward Murray Bassett, the father of American zoning, was on immigration.  His autobiography is virtually impossible to obtain.  His writings available online do not directly mention it.  I would perhaps give him the benefit of the doubt.  The motives of many of his contemporaries, however, are not in doubt, as Seymour Toll wrote in 1969 in Zoned American:  

"The [laundry] controls were an expression of the hatred and antipathy which San Franciscans were directing against the Chinese, trying to force them to quit the city. The immigrant is in the fiber of zoning.  He first appeared as an Oriental.  In early twentieth-century New York he is seen as a southeastern European, the lower East Side garment worker who presence in midtown Manhattan created one of the decisive moments in the history of zoning."

None of this is terribly new or controversial.  A connection that hasn't been made as clearly is how single-family zoning and the total exclusion of commercial uses were specifically targeted at the immigrant businesses and housing options described above.  A newly-arrived immigrant (and most people in general) did not have the capital to construct an entire "mixed use" building.  After some time, though, he might be able to add a very small commercial addition onto an existing building, as shown in the photo above, or convert the first floor into a storefront.  Zoning would forbid this development in two ways: first, by instituting setbacks, and secondly by eliminating commercial uses altogether.  Even native residents needed commercial uses in close proximity, but these were to be relegated to special corridors where competition would be greater and immigrants would have more difficulty gaining a toehold.  

With respect to residential buildings, the banning of small multifamily buildings from much of the city foreclosed the route to homeownership previously mentioned.  A century after New York's zoning code was adopted, the numbers have flipped, and the native born are much more likely to be homeowners than the foreign born (67% to 52%, according to the Census).  The financial benefits of homeownership, moreover, have been concentrated in the hands of the upper middle class, the original backers of zoning.

It is only antipathy to immigrant populations that I think can explain these dual features of almost all American zoning codes, and their absence from the codes of most other countries.  The apparent trauma of early 20th century immigration led Americans, or at least a vocal portion of them, to shred their traditional respect for individual property rights and institute special zones which reflected native middle-class values and conceptions of proper living conditions.  The loss of neighborhood shops, or affordable rentals, were unfortunate but necessary casualties of this process.  Elsewhere in the world, the process of commercial conversion can still be watched unfolding, as below in Mexico.

Shopfront in setback, contemporary Guadalajara suburbs, Mexico.

I am not certain, though, that the alliance against shops and multifamily dwellings was ever as unified as it was made out to be.  Then, as now, the loudest and shrillest voices probably carried the day.  Many natives would have liked to have run businesses out of their homes as well, although the importance of multifamily housing a means to ownership waned with the arrival of new forms of mortgage finance in the 1920s and especially 1930s.  

While times have changed, the rolling back the restrictive laws of the 1920s would pay dividends even today.  

Related posts: 

• Where Zoning Went Wrong
• Single-Family Zoning in Seattle and the Limited Logic of Euclid

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?