Wednesday, May 23

Edward Murray Bassett and the Origins of Zoning

The following is a summary of and reflection on Zoning by Edward Murray Bassett, published by the National Municipal League in 1922. After writing the first comprehensive zoning ordinance for New York City six years earlier, Bassett had become the preeminent authority in the U.S. on this emerging land use tool. This is his case to cities for adopting a zoning code.

Zoning has become so ubiquitous in American cities that nobody bothers to defend the practice anymore. Steady rounds of critiques have been launched against zoning from all sides, from social justice proponents decrying exclusionary practices, to private property rights groups leveling against government intervention, to public policy academics, to urbanists and environmentalists opposed to strict separation of uses and controls on density. However, for the most part, mainstream zoning codes have been very resistant to these attacks over the years. Not much has changed, and, in fact, there are even very few general counterarguments made in defense of traditional zoning, at least that I'm aware of. It's just the way we do things.

This is why it's instructive to read an early planner who argued passionately for the creation of zoning codes. In 1922, there were only sixty codes in place in American cities, and Edward Murray Bassett made a compelling case for many more states to allow this new practice. I've pulled together the primary arguments he made in favor of zoning, many of which still apply today:

1. Cooperation yields overall larger return on investment for all property owners. This was Bassett's primary concern, one that he underscored with a number of prisoners' dilemma scenarios. For example, "In some of the larger cities a landowner in the business district is almost compelled to put up a skyscraper because if he put up a low building, his next neighbor would put up a higher one that would take advantage of his light and air." He asserted that skyscrapers were probably not a sound investment in their own right, but they were built anyway in a virtual arms race for public goods of light, air, privacy, and scenery. Zoning was the truce that made everyone better off.

2. Zoning stabilizes building and property values, by signaling to investors what they can expect from a certain district. Markets work when people know what they are buying, and zoning creates some assurance that the product will not change fundamentally. This reason is why housing developers were among the most ardent supporters of zoning in the early stages.

3. Constitutional limits on local "police powers" would prevent zoning excesses, so residents need not worry about a slippery slope toward regulating "aesthetics and sentimentality" (more on this below).

4. Zoning is better than deed-restrictions, which were already being used to accomplish a similar purpose. Unlike the latter tool, zoning is applied comprehensively and can be adjusted by elected bodies to meet evolving needs.

5. Zoning is better than nuisance law. Without a zoning code in place, disputes between property owners about impacts can only be settled through common law nuisance claims. This is more expensive and arbitrary than zoning. 

6. Zoning prevents the wealthy from leaving the city. By 1922, the trend toward suburbanization was well underway. Bassett advised cities to zone for the kinds of low-density neighborhoods the wealthy were seeking, in order to prevent them from moving further out and losing the tax base. (This is reminiscent of a contemporary argument that cities must provide free downtown parking, in order to prevent shoppers from taking their business to the suburban big boxes).

7. Zoning limits land speculation by eliminating the possibility for large-scale buildings in low-density zones. Bassett writes, “Owners of vacant corner lots, that had been held out of use so that apartment houses might be built, have in almost every case improved them as high-class one-family residences.” (ok ... I don't buy this one. There would seem to be counterexamples that go the opposite direction)

8. Zoning maximizes public infrastructure investment.  Major thoroughfares create natural businesses districts by giving access to numerous customers. However, if homes or other less suitable uses are built on major streets, the full economic impact of the public infrastructure is not achieved.

9. Zoning manages and stabilizes growth. He wrote, “Zoning encourages growth while at the same time it prevents too rapid changes.” A good code would lead to steady growth, without any expanding or deflating real estate bubbles. This would also facilitate reasonable planning of public infrastructure and facilities.

Notice the complete absence of social, moral, or ideological language. These are not the words of a utopian academic envisioning the city of the future, but rather a politically-astute pragmatist addressing a chamber of commerce or some other worldly audience. Bassett deliberately distanced himself from any "radical experimentation" even while presenting what was on the regulatory cutting edge of the time. Unlike some previous planners, he did not present zoning as a tool for class segregation. He didn't even really mention class, or housing conditions, or city beautification, or any of the other movements popular at the time. His focus was squarely on return on investment.

But Bassett issued a very interesting caution - tucked into the middle of a paragraph - that gives some insight into an appropriate purpose and scope for this tool. He advised cities not to pass zoning that explicitly forbids apartment buildings in single-family home zones, instead favoring one broad residential zone for all types of housing (he thought setback and height limitations could be used to achieve the same effect).

Bassett was certainly not worried about concentrating poverty or perpetuating sprawl, as we might be today. He was concerned that the courts would throw out such regulations as a breach of the constitutional power to protect "health, safety, morals, and general welfare." If this happened, he believed it would have a chilling effect for all cities, causing an over-reaction that could very well have killed zoning in its infancy.

We have to remember that the courts were still probing exactly how far land use regulations legally could go. As a father of a toddler, I can relate to the series of tests it takes to establish the exact meaning of something as simple as "don't smash your carrots." It took the U.S. Supreme Court decades to test the meaning of local police powers to control land use. First, the court allowed building height regulation in Boston, then setback regulation in Richmond, then regulation of industrial uses in Los Angeles. Bassett was heartened by these successes, but he didn't want to push his luck.

The Village of Euclid, Ohio passed their zoning ordinance just as Bassett published this pamphlet, leaving them without the benefit of his cautionary advice. Their ordinance did, in fact, prohibit multifamily buildings entirely from single-family districts, and the Supreme Court Justices paid special attention to this fact during the landmark Village of Euclid v. Ambler Realty Co. case. Prohibiting a smokestack next to a school is one thing, but would allowing different housing types to share a district really detract from the health, safety, or welfare of the public?

Yes, as it turns out. Bassett was wrong. The court upheld Euclid's code, thereby granting more power to zoning than he had anticipated. From the opinion of the court delivered by Justice Sutherland, at length:
"With particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that, in such sections, very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities -- until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed."
(Of course, if you happened to live in one of those parasites that lead to a chain reaction of utter destruction, it's not clear how your own welfare is benefited by this ruling in any way.)

Euclid could easily have gone the other way. The Ohio Federal District Court previously struck down Euclid's zoning, declaring "in the last analysis, the result to be accomplished is to classify the population and segregate them according to their income or situation in life." A Euclid loss would have still allowed certain form-based regulations and limitations on industrial uses, but broader land use regulation would have been severely chastened. Bassett was probably right to doubt the odds of a victory in 1922, but the number of zoning ordinances had grown exponentially in just five years. The Justices hearing the Euclid case were reminded of the 24 million U.S. residents living under a democratically-imposed zoning code as they weighed the allowable extent of this power.

I have not been able to find Bassett's reaction to the Euclid decision, but it raises an interesting question. Was he relieved that the zoning he fought so hard for passed its most important test of constitutional scrutiny? Or was he concerned that this power was being taken too far? After all, the constitutional protection against excesses was one of his original selling points of zoning:
"Zoning must be done in relation to the public health, safety, morals and general welfare. If it is done arbitrarily or by whim or for aesthetics or for purely sentimental purposes or with unjust discrimination, the courts will not uphold it."
I'd like to think that Bassett, at least in some honest moments, felt a little like Dr. Frankenstein. He had persuasively (to me at least) argued for a community's responsibility to form some order out of chaos, only to see zoning grow to reinforce the benefit of "favored localities" at the expense of others. He wrote that zoning "should follow nature and it should not be forgotten that the city has a history," yet this tool had begun to artificially restructure the 20th century city into a form never before seen. He had expected the courts to be a bulwark against taking this power too far. But that did not happen.


Alex B. said...

Thanks for this.

I'm struck by how many of the principles are lacking in a check within the system over time. For example, a check against speculation and stabilizing building values is one thing - but what happens over time when that check becomes a severe constraint on supply?

On bubbles, I'm not sure I buy that one either - as it would seem to have a lot more to do with finance rather than building regulation.

There's also the matter of time - I doubt he was thinking 75 years down the line, but that would seem to be one of zoning's most severe limitations is the inability to evolve naturally as a city grows. Another bit that goes unmentioned would be the process for changing or adjusting, and the relative influence for building what we'd call by right today, opposed to requiring some sort of variance or special exception.

Daniel Nairn said...

The time issue is an interesting one. Bassett did devote a few words to the process of change, but I think you're right that it was not front and center. He believed change in zoning should be possible, to adapt to new conditions, but somewhat difficult, in order to promote stability. He suggested that requiring a public hearing would be a sufficient hurdle.

Charlie Gardner said...

Bassett had good reason to put his faith in the courts. The Supreme Court of the 1920s was notorious for striking down what it perceived to be overreaching legislation, with Justice Sutherland leading the pack (in the 1930s, he was among the majority striking down much of FDR's New Deal legislation).

I find especially noteworthy Sutherland's purported concern for the well-being of children, given that this was the same Justice Sutherland who had just three years before authored the majority opinion striking down a DC law providing for minimum wages for child laborers (Adkins).)

The other reasons given don't really pertain to Euclid's code, anyways. A critique of "height and bulk" is just that, a form-based critique, that has nothing to do with the number of families living within the structure. One could easily prescribe a 3-story limit and 20 foot setback without barring multifamily occupancy.

Great post -- thanks.

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