Municipal Planning and Zoning in the United States

Edward M. Bassett: Zoning: The Laws, Administration, and Court Decisions During the First Twenty Years. New York: Russell Sage Foundation, 1936.

Edward M. Bassett: The Master Plan: With a Discussion of the Theory of Community Land Planning Legislation. New York: Russell Sage Foundation, 1938.

Edward M. Bassett: Autobiography of Edward M. Bassett. New York: The Harbor Press, 1939.

 

‘Urban planning’ dates back at least as far as the Sumerian city of Urdu in the fourth century B.C. Among the Greeks, Hippodamus of Miletus was called “the father of city planning,” having given Pericles a design for reorganizing the Athenian port, Piraeus, and later redesigning the city of Rhodes. In Politics II.8 Aristotle criticized him not for his planning efforts but for proposing that citizens be rewarded for proposing innovations to the laws that were then adopted—this, on the grounds that, unlike arts, laws require stability in order for citizens to habituate themselves to follow them. It is easier to learn to navigate a new set of streets than it is to learn to obey a new set of laws, and while innovation may earn respect for an artist, novelty does not earn respect for laws, or for the rule of laws. In Aristotle’s estimation, in treating lawgiving as if it were an art, Hippodamus carried his enthusiasm for reform too far, too fast.

As one might anticipate, Germany led the way toward the professionalization of municipal planning in the modern state in the 1870s. American reformers, closely followed by American Progressives, took up the cause a generation later. Nineteenth-century American cities had seen residential and commercial buildings with multiple stories, darkening the streets and interfering with the circulation of air, along with factories situated next to residences, polluting the already stagnant air. The fundamental idea of zoning was land use separation, intended to keep people at a relatively safe distance from the smoke and noise of industry; residential ‘zones’ were distanced from industrial ‘zones.’ To this was added concerns about high-rise office and apartment buildings, which blocked air and light, a matter of public health. 

Although Los Angeles was the first major city to enact zoning laws in some of its neighborhoods, in 1904, New York City saw the first city-wide system of zoning. Wealthier residents were fleeing the city for the suburbs, diminishing the tax base. The zoning law’s co-author, attorney Edward M. Bassett, eventually called “the father of American zoning,” chaired the city’s “Heights of Buildings Commission.” His solution to the problems caused by unregulated ‘development’ was not to limit the heights of buildings but to impose setbacks, so that the towering buildings could not occupy more than a certain percentage of the property upon which they were situated, thus enabling air to circulate and sunlight to reach the streets and sidewalks. 

To enact a law is one thing; to administer it, another. Cities established planning commissions to oversee the implementation of the new laws. To guide commission actions, the notion of a ‘master plan’ for the city quickly gained favor, and Bassett again moved to the forefront. The “burning issue,” he writes, is a matter of definition, of establishing limits, of determining “what should go in and what should stay out” of a master plan. 

He begins with an account of the genesis of political life, the American way: “Imagine a thousand families pioneering in a new country where they must do for themselves or else perish.” Hunting, fishing, agriculture, the construction of “tents or shacks,” followed eventually by “houses, stores, and factories” are all “things individuals can do,” in collaboration with their neighbors. But at the moment they need to adapt land areas “to common purposes”—for streets, parks, public buildings, public utilities, pierheads and bulkheads— they need the efforts of (and in a republican regime, the consent of) the community. This calls for public planning and laws to enforce the plan agreed upon, “since the only way that a community can act is through its laws.” The governing institution that plans, the “planning commission,” typically consists of persons appointed by the elected representatives of the municipality’s residents. The residents are thus the ultimate source of the laws governing the commission, as per the regime of republican or representative government. The purpose of the planning commission is not only to defend the public interest but “to protect private owners of land” by making “a thorough study of the needs of a community, the trends of growth, the different kinds of business and industry, the topography of coordination of the zoning ordinance with streets, parks, and other elements of the plan.” Indeed, “zoning is so intimate a regulation of private property that the greatest care should be taken to see that it does not transcend the limits of fairness” by, for example, effectively “taking” land instead of regulating it. 

First and foremost, to plan in the relevant sense here means to locate. Bassett identifies seven “elements of planning,” things to be located, all of which occupy “land areas,” locations. Bassett distinguishes the elements, the kinds of things to be located, from the appearance of those things—from their architecture, their upkeep—and from their structural integrity—their engineering, the building codes governing their construction, or other matters involving the police power of the community. The elements of the master plan proper are:

1. Streets. These include bridges, tunnels, alleys, and sidewalks, but not the roads called “parkways.” The “first act of planning” is to establish the boundary lines of streets, and in this sense “planning…precedes acquisition and construction”; “locating is the act of planning.” Planners locate streets but do not concern themselves with private houses located along the streets, which are not shown on the master plan.
2. Parks, that is, “parcel[s] of public land devoted to recreation.” This is where “parkways” come in, along with what are ordinarily called parks, since many parks have roads in them. A parkway is a park with a major road running through it. In New York City, “Central Park is also a parkway because vehicles use it the same as they use Bronx River Parkway”; they are “identical in their legal characteristics.” What distinguishes a parkway from a public street is that no stores or residences “can front on it as a matter of right.” (This evidently doesn’t include a mobile business, such as a food truck, common enough in Central Park.) “A street is a strip of public land devoted to movement over which abutting owners have an easement of light, air, and access, whereas a park is a strip or parcel of public land devoted to recreation over which they have no such easement.” Since Bassett’s day, parkways have come to feature “rest areas,” typically including a restaurant, but the restaurant owner has no legal right to purchase the property, only the right to gain permission to use the property. Some parkways may feature playgrounds and similar recreational amenities, but many do not, inasmuch as “one of the principal uses of a park is to promote quiet and peacefulness of outlook.”
3. Sites for public buildings, “parcel[s] of land set aside by sanction of law for community use,” obvious examples including town halls, public schools, fire stations. Master plans coordinate these public sites with the other elements of the plan, again considering the site more than whatever building is to be placed on it. Municipalities are not bound to retain these properties in perpetuity but can sell and transfer the title to them, just as “a private individual” can do with his own property.
4. Public reservations. These are vacant spaces designated for a particular purpose, such as an airport, fair ground, or forest reserve. Bassett notes that many of these spaces are acquired by legal condemnation of the land in question, although that is not always the case.
5. Zoning districts. These are not usually publicly owned spaces but rather spaces defined and regulated with respect to the concentration (the “density”) of the structures built upon them and of the population living and working within them. The public interest here is not its ownership of the space but the health and safety of the municipality’s residents and of non-residents who may work in or near the space. The main health and safety concerns are light and air. For example, “a community will find that health and safety are promoted by separating business from residential districts,” given the dangers of fire, disease transmission, and crowding. “Better children can be reared in residential districts that are open and sunny than in those that are crowded with stores” and occupied by factories, which themselves should be separated from stores, as well, as industrial noise and smoke don’t conduce to shopping. Whereas a building code “are the same for the same kind of building throughout the municipality,” a zoning ordinance differentiates one space, one district, from another with respect to the “height, area and use of buildings, the use of land and the density of population.” “Zoning districts are land areas, the legal quality of which is impressed on the land by acts of law or the sanction of law,” which is why “zoning maps never show buildings, only land,” allowing “certain kinds of buildings and prevent[ing] others” within each district. Himself a distinguished attorney, Bassett is quick to observe that “the basic features of modern zoning” have “largely procured the approval of courts,” which have “declared that if the regulations were reasonable, were based on community health and safety and were not discriminatory” with regard to matters having nothing to do with health and safety,” they are consistent with state and federal constitutional law. To “prevent arbitrariness in carrying out the regulations upon a given plot of land a board of appeals, presumably composed of experts,” should be established by the municipality to hear appeals from aggrieved property owners and, acting as “a quasi-judicial body,” empowered to reverse a building department’s decisions “when it makes mistakes” and to grant variances in cases “where the strict letter of the law will result in practical difficulty or unnecessary hardship and where the spirit of the law can be otherwise carried out at the same time that public welfare is maintained.” “Unreasonable or discriminatory” zoning “is null and void as to the lot in question,” although “no property owner can obtain damages from a municipality because of the manner of its zoning.” 
6. Routes for public utilities. Public utilities move things or energy around, whether these are water, sewage, methane gas, or electricity. “Movement of some kind is characteristic of every public utility”; movement requires infrastructure, and infrastructure must be located. Hence the relevance of municipal planning to public utilities. “A public utility is a natural monopoly,” the monopoly granted because it “promotes economy and in the long run…gives better service at smaller cost to the consumer.” Bassett admits that this is “disputatious ground,” especially since such a monopoly may be granted to a private franchisee, who will want to maximize profits. This is why “the impulsive granting of perpetual or indeterminate franchises, without checks and safeguards, is much to be deplored.”
7. Pierhead and bulkhead lines. Navigable rivers and other navigable bodies of water not surrounded by private property are legally controlled by either the federal, state, or municipal government, with states and cities controlling harbor lines insofar as they do not “interfere with those controlled by the federal government.” “These harbor lines must be coordinated with” the other elements of the municipal master plan.

Thus, “the elements of a community plan cannot be destroyed by fire or an act of God.” “Each of the elements of the plan set forth in this book relates to land areas; has been stamped on land areas by the community for community use; can be shown on a map”; “if a subject does not conform to these three requirements it does not come under the head of community land planning.” However, the structures built on the locations identified on the plan must correlate with the purposes allowed on the relevant location or zone. This speaks to the matter of land use. The boundary lines of zones must be set preliminary to building, unless there are pre-existing buildings which may need to be ‘grandfathered in’ to a given zone. “If, therefore, a planning law is to secure a firm basis, it must provide a method by which the community may determine its own boundary lines”—this, on the principle that the people rule their own town, within state and federal constitutional constraints, all in conformity with the constitutional requirement of due process of law. “That is because fixing boundaries by a community affects private rights and it is an arbitrary and usually unlawful proceeding if the private owners of surrounding land may not be heard.” 

Given his esteem for expertise, Bassett contends that a master plan should be adopted by a planning commission, not subject to the approval of “the legislative body.” This is because the master plan itself is not a law, only a document for guidance and the planning commission itself is an advisory body, not an arm of law enforcement. He criticizes one state legislature, which declared “that if the zoning of cities, villages, and towns did not agree with the master plan of the county” in which they were located, “the suggestions in the master plan should be substituted for the deliberately adopted zoning regulations in the municipality,” a declaration that “went a long way toward substituting the county planning commission for the county legislative body.” So “to overwork its limited function will result in planning’s running wild.” And the drafting of a master plan itself should be an act of self-discipline, as the famers are often “tempted to insert requirements on all sorts of non-community subjects, which they conceive will make up a well-arranged place in which to live—trees, private houses, private golf courses, stores, factories, and even private parking places for automobiles.” “If a fertile and ingenious legislator puts everything that he knows about and likes in a plan, the latter becomes a scrapbook and is an embarrassment instead of a help.” 

Avoiding such “diffuse” efforts, a sound master plan also should be adaptable to changing circumstances, as for example the need for reforestation and control of soil erosion and flooding. It is this need for prudential adaptation—for plasticity, as Bassett terms it—that he addresses in his accounts of the history of planning commissions and master plans in established in several municipalities around the country. This, too, points to the planning commission as “the advisor of a legislative body and the various [executive] departments,” not their ruler, or the ruler of the people.

Bassett devotes the second half of his book to a history of municipal planning in the United States, with understandable emphasis on the New York City plan he co-authored.  He begins with the year 1921, when Secretary of Commerce Herbert Hoover appointed an Advisory Committee to prepare a standard city planning enabling act “to be used by state legislatures desiring to permit their municipalities to establish better methods of planning.” The Committee completed its work the following year and the act itself was issued as a pamphlet in 1924; by the second printing, two years later, nineteen of the forty-eight states had adopted it. The act contained all seven of Bassett’s “elements of planning,” describing the purpose of municipal planning as “accomplishing a coordinated, adjusted, and harmonious development of the municipality and its environs which will, in accordance with present and future needs, best promote health, safety, morals, order, convenience, prosperity, and general welfare, as well as efficiency and economy in the process of development; including, among other things, adequate provision for traffic, the promotion of safety from fire and other dangers, adequate provision for light and air, the promotion of the healthful and convenient distribution of population, the promotion of good civic design and arrangement, wise and efficient expenditure of public funds, and the adequate provision of public utilities and other public requirements.” 

Cincinnati “has the distinction of having been first to appoint a planning commission with power to establish a master plan” in 1925. The law was written by local attorneys Alfred Bettman and Ladislas Segoe, implementing a plan written the Technical Advisory Corporation of New York, the first private planning consultant firm in the country [1]. It stipulated that “any proposed improvement” in the city be reviewed by the planning commission, its decisions to be overturned by the city council only if a two-thirds majority voted against it. This contrasts with the Massachusetts law, where planning boards “have no power whatsoever,” on the grounds that “if the city planning board cannot convince the public and the city officials that its ideas are the best, there must be something wrong with the ideas,” and that “no city council,” at least in Massachusetts, “would consent even to sharing the control of the city plan with another body.” Against this, Ohioans claimed “that city planning is a highly specialized and a highly technical matter…requir[ing] the concentrated effort of a selected group of exceptionally intelligent and experienced citizens, aided by the best technical advice,” who can take responsibility for work that will otherwise lead to “inevitable charges of favoritism” if lodged with elected officials. Bassett sides with Ohio: “The general impression of those who are watching the effect of the Cincinnati method is that it is proving highly successful and is a distinct improvement on the strictly advisory powers of most other planning commission.” 

A year later, New York State became the first to use the term “master plan” in a set of laws governing the establishment of planning commissions, while stopping short of requiring those bodies to write such plans “because of the fear that if one was established by a majority vote of the planning commission or adopted by the municipality, it would become ossified and cease to be a plastic instrument for the use of the commission itself in making its reports.” Pennsylvania legislators were bolder, requiring that master plans would have “all the force of law”; municipal councils can overrule commission’s decisions, but commissions can then overrule the overruling. Bassett calls this legislation a “mistake” that “shows the wisdom of the New York legislature,” because law by its nature is difficult to amend the master plan, not (it should be noted) because it takes control of planning from elected officials and places it into the hands of administrators.

California’s 1929 Planning Act of 1929 exhibited another error, as legislators succumbed to “the temptation to use the newly discovered ‘master plan’ for all sorts of extraordinary purposes, whether within or outside the powers of the community.” The master plans envisioned by Californians include not only Bassett’s seven elements of planning but “sites for private group buildings and plans for their architectural treatment,” even though the state’s courts “have not recognized any such powers in municipalities.” Such comprehensive scope, coupled with Pennsylvania-like powers granted to the planning commissions, will “tend to congeal the plan so that after it has been in existence five or ten years it will be an obstacle instead of an assistance.” A subsequent amendment, enacted in 1937, not only fails to “simplify the procedure but makes it far more intricate.”

In 1929, New York City Mayor James J. “Jimmy” Walker—Tammany Hallsman and connoisseur of chorus girls—proposed an amendment to the city charter to provide for a planning commission and a master plan. This plan was indeed sufficiently “plastic”; “the excellent thing about this master plan,” which was included in the new city charter of 1936, “is that it will remain in the control of the commission and can be quickly changed by the commission,” since “no official body outside the commission needs to adopt it.” In the words of the charter, “It would be impractical to establish a planning board that would be a sort of super-government.” By then, Walker was out of office, his life and administration dogged by scandal, but the progressivist Mayor Fiorella LaGuardia, Tammany’s enemy, equally supported the idea of city planning. 

Who, then, was Edward M. Bassett, who not only helped to establish municipal planning in the United States but earned the informal title of “the father of zoning” for his earlier work in writing the first comprehensive zoning law in the country? In his autobiography, he tells us.

Bassett was born in Brooklyn, New York, in July 1863, that is, in the days immediately following the Battle of Gettysburg. City life toughened boys up, and so did the schools. When the boy ventured to shout his support for the Grant-Colfax ticket during the 1868 presidential election campaign, “the Irish got me down and punched me till I shouted Seymour and Blair.” He joined a gang “and had fights with stones with boys who lived further east and who would periodically attack us.”; “we would drive each other around a block,” and “I did not look on it as play but as a very serious and necessary pursuit.” In school, “whipping with a rattan or ruler was one of the main activities” of teachers. “If a boy missed a word in spelling he was whipped, with the only restriction being that mothers disapproved of raps on the knuckles, which caused little hands to swell, as distinguished from hits on the meat of the hands, which merely stung and induced whimpering.” In those days, boys “seemed to consider that whipping was part of one’s education,” and “no complain was made.” Reading consisted of Bible stories, Pilgrim’s Progress, Gulliver’s Travels, and, by high school, Shakespeare. He thrived on Latin and Greek and studied geography with a passion. Hamilton College was no less rigorous, as fights broke out between freshmen and sophomores immediately after chapel service. “No faculty member lived in the buildings or on the campus. The authority was upper-classmen. Their word was law.” He later transferred to Amherst, from which he graduated in the Class of 1884, then went on to Columbia Law School, graduating in 1886. 

Household economy in Cleveland’s childhood exhibited habits of frugality. At his grandparents’ house, “No newspapers were thrown away, but were carefully cut up for toilet paper. I mention some of these things because nothing shows better the economy of old people of that time. They were not rich, but they never thought of such a thing a taking money from anybody outside the family. They were just as proud of their independence as Rockefeller is today…. I sometimes think of these conditions of American life when there was almost no wealth but at the same time there was no poverty and almost no dependence.”

Those Irish lads evidently beat the Democracy into him because by the time he moved to Buffalo, where the city’s popular mayor, Grover Cleveland, had just been elected governor, he soon became secretary of the New York Cleveland Democracy. He and his brother, a civil engineer, formed a successful water works company, but at the beginning of the 1890s he moved to New York City, “want[ing] to learn whether I could succeed in practicing my profession.” He could, after a couple of years of struggle, and he gained election to the Democratic General Committee of the City of Brooklyn, then to the local Board of Education. At this time, Brooklyn had yet to be incorporated into New York City; the Tammany Hall Democrats ran New York—that is, Manhattan—and the “Brooklyn Ring” Democrats ran Brooklyn under the leadership of Boss Hugh McLaughlin, who used his position as a master mechanic in the Brooklyn Navy Yard to distribute patronage. Cleveland was a Reform Democrat, aiming (successfully, as it happened) “to defeat any regular candidate for mayor nominated by Boss McLaughlin.” Bassett himself was elected to the U. S. House of Representatives in 1902, taking the Cleveland position on low tariffs and working for a canal route through Nicaragua in opposition to President Roosevelt’s preferred route through Panama. He chose not to run again, considering his renomination doubtful and his law business more lucrative. Looking back from the vantage point of 1939, he writes that “we know now that the high tariff of those days was the beginning of economic unevenness’s that have culminated in the present bad governmental situation under Franklin Roosevelt.”

This was when Bassett’s childhood fascination with geography began to bear dividends. Serving on many street and park opening commissions in the city, he collaborated with two other attorneys appointed by Mayor George B. McLellan, a former four-term Congressman and son of the Civil War general, in revising the City Charter to provide for the use of the power of eminent domain to establish public parks. Although he regarded eminent domain as a legitimate instrument for addressing “esthetic matters,” he consistently rejected it as an instrument of planning and zoning, which he regarded as properly part of the police powers. “No effective zoning plan could be accomplished by the exercise of eminent domain” because “if there were some diminution of the full use of property, the city would need to pay the loss to the private owner,” a cumbersome, property-by-property procedure that would entangle the city in excessive costs and endless litigation.

By 1905, he turned to the problem of traffic congestion caused by the existence of only one way to cross the East River between Brooklyn and Manhattan—the Brooklyn Bridge, which stands today as the outstanding accomplishment of the Boss McLaughlin regime. This wasn’t simply a matter of building more bridges. In his visits to Europe, Bassett saw that London, Paris, and Berlin were “round cities,” where the city centers were located at the shortest distance from their borders, as distinguished from rectangular Manhattan, a shape that made the north-south distances farther away from the center. “My thesis was that if the west end of Long Island”—including Brooklyn—could “be brought into a five-cent fare relationship to Manhattan the city would a assume a rounded form,” capable of “growing north, east, and south without great congestion.” The area of the city would increase but transportation from one section to another would be improved, thanks to what was called “the pendulum movement” of trains, which means that trains beginning in the suburbs would travel through the business center and then on to another suburb, distributing the peak load of traffic at many stations and encouraging two-way traffic instead of one-way traffic. “Now the pendulum movement is so well established in this city that most people have forgotten the crowded stub-end terminals that existed at South Ferry, Brooklyn Bridge Terminal, Atlantic and Flatbush Avenues and other places,” and since 1907 Brooklyn has been “an integral part of the round city.”

As an attorney working in the field of public utility corporation law, Bassett eventually became restless, “want[ing] to be connected with new laws that improved living conditions, especially the better distribution of residences, business, and industry,” which he saw as a subject “almost unexplored in this country [which] offered a vast field of progressive legislation.” To this end, he joined a newly-formed Heights of Building Commission founded by George McAneny, who chaired the Transit Committee of the City Board of Estimate. At the time, a few cities had some regulations governing skyscrapers, which occupied such large swaths of city blocks that the blocked sunlight and interfered with the circulation of air. By 1916, New York had the first comprehensive municipal zoning law in the country. “My zoning work has been the best contribution of my life,” paralleling his attempt “to systematize the entire subject of community land planning.” The two men worked “to spread zoning throughout the country” since, as Bassett explains in Zoning, “if this rather new invocation of the police power was employed in only one city courts would frown on it because of its limited use”; “judicial approval of extension of the police power depends somewhat on a widespread opinion that such extensions are needed, and also upon their actual employment by governing bodies.” “The future of zoning was at that time precarious.” Their campaign succeeded, and by the late 1930s Detroit was the only major city in the country without a comprehensive zoning ordinance.

“Municipalities must obtain their power to zone from the state,” since “the state legislature is the repository of the police power” and courts looked for state constitutional or statutory backing in answering challenges from litigants who argued that zoning regulations were “an unlawful invasion of property rights.” In the event, “courts have recognized the lawfulness of zoning regulations about as rapidly as organized communities have found them necessary” for “the public health, safety, morals, and general welfare,” which form the natural-rights basis for the exercise of police powers. [2] In New York the state enabling legislation was in place by 1914. At the time, tall office buildings “not only covered their entire lots and had the same floor space in their top stories and their first stories, but cornices projected into the street from eight to fourteen feet,” making southern Manhattan a place of “dark canyons and narrow streets.” Hence the need for not only height limits but especially for setbacks. Subsequent buildings (the iconic one being the Empire State Building) were constructed with “pyramid” shape and their ‘footprints’ were kept back from the sidewalks. In fairly short order, not only light and air but traffic congestion was added to the list of matters properly related to public health and safety. Bassett emphasizes that “all owners hold their land subject to the police power regulations of the community, whether for health fire protection, or structural safety,” and so the exercise of that power does not violate property rights rightly understood.

New York’s zoning law established neighborhoods based upon use, not esthetics. That is, there were districts set aside primarily for offices or factories (some with heavy industry, others with light industry), apartment houses or one-family, detached homes. That is, the standard of use followed from the principle of health and safety, which in turn legitimized the exercise of the police power. “The novel feature of zoning as distinguished from building code regulations, tenement house laws, and factory laws was that suitable regulations for different districts were established. We have become so accustomed to zoning regulations that it is difficult to understand how fixed the popular notion was that all land should be regulated in the same way throughout a municipality.” In this matter, Bassett does not suppose that use-base zoning requires exclusion of some mixed use within each district; “some industry, especially light industry, must be permitted in every business district,” as for example, clothing and shoe stores will have repair departments. Regulation should only exclude uses that are entirely incompatible with the use designated for the district—such as placing heavy industry next to residences. This remains a matter of police power, not esthetics. “It has been said that beautiful architecture is…conducive to health, or at least to comfort and well-being. If all people were alike in taste, this might be true.” Such matters as “light, air, quiet, and the effect of vegetation on the atmosphere are subjects wherein expert evidence can assist,” since such evidence is subject to scientific corroboration in a way that esthetics are not; “even architectural experts differ as to what they consider examples of good taste.” Roadside advertising may therefore be regulated by zoning, but only if it can be shown to distract drivers to the point that it causes a hazard. 

If a zoning law goes into effect which bans a use in a given district to which a given building is dedicated, that building will continue to operate without penalty. “Zoning seeks to stabilize and protect and not to destroy,” “safeguard[ing] the future, in the expectation that time will repair the mistakes of the past.” That is, if a nonconforming building is destroyed by fire “or other act of God,” or if such a building is abandoned, any building that replaces it should not be allowed to continue the nonconforming use. Nor should any addition to a nonconforming building be permitted. While it is true that “if the police power can be invoked to prevent a new nonconforming building because of its relation to the community health, safety, morals, convenience, and general welfare, it follows that the police power can be invoked to oust existing nonconforming use,” and this might be done on a massive scale, but this is in theory, only. “The courts would rightly and sensibly find a method of preventing such a catastrophe.”

In most instances, “the use of a building can be shown by its form.” We know a factory, a store, a house when we see one. Bassett’s use of the term “form” hints at the crucial shift in zoning law that he intended to effect. Such laws as did exist, prior to his efforts, centered on the form of buildings. Typically, a store might be located in a predominantly residential neighborhood, so long as it conformed to whatever architectural standards the municipality set down. That is, all neighborhoods were what now are called ‘mixed use’ neighborhoods. This meant that a skyscraper that conformed to the given architectural form could fill a city block, or that a factory could be placed next to a school. By refocusing zoning law on use rather than form, Bassett prevented this. This also tended to erode architectural standards, since Bassett explicitly denied a place for esthetics in zoning law. To elevate ‘use’ to the ruling determinant of zoning practice is indeed a ‘utilitarian’ move, and that is why he deploys the term “form” as an indication of “use” in the sentence quoted. Property owners lose the right to ‘build out’ on their land, to fill it with a building, but they gain the freedom to reduce costs incurred by strict esthetic standards.

Given the character of law—specifically, the necessary incapacity of lawgivers to meet every possible circumstance that may arise—judges live up to their name; they exercise judgment, equity. Zoning laws typically include a board of appeals, “to apply the discretion of experts to exceptional instances where permits are desired not strictly conforming to the regulations”—variances, as they are called. This is why zoning and planning boards are said to exercise a ‘quasi-judicial’ function. The criterion for granting a variance, an exception to strict conformity to the zoning law, is “hardship.” In the words of Harris H. Murdock, then Chairman of the Board of Standards and Appeals of New York City, he definition of hardship rests on the principle that “an owner is entitled to a reasonable use of his land,” and “since “what may or may not be reasonable cannot be stated in any general rule,” equitable variances will be needed. This “does not mean that one owner is entitled to a special privilege by a variation that is denied others similarly situated or that will cause hardship to other owners,” nor does it mean that an overall downturn in the local or regional economic circumstances constitutes a proper hardship with respect to a zoning variance, nor that a property owner can claim a hardship because he could make a tidier profit if he were granted the variance he wants. Rather, a hardship exists when a property “cannot be put to a conforming use that will provide a reasonable return under normal conditions” (emphasis added). Further, the board must also judge that if the variance is granted, “others will not be unduly injured and that public health, safe and general welfare will be secured and substantial justice done.”

So, for example, if a district now zoned ‘residential’ has two stores, now nonconforming, with a vacant lot between them, “it might be unreasonable to insist that the owner could building nothing but a private residence under the existing restrictions,” but “if he is granted a variance permitting a residence with a smaller front yard, or a two-family residence, or a modified business building, he can usually erect an economical structure that will not substantially injure the neighborhood.” Bassett is careful to stipulate that hardship inheres in the land to be built upon; “the needs of the surrounding lands or houses do not constitute a basis for the variance.” Boards of appeals should not grant a variance to someone who wants to build a store in a residential district because it would be convenient for the residents to have one on that lot. “Each variance must stand on its own feet,” and feet stand on land.

If a property owner comes before the board of appeals seeking a variance, the board is entitled to attach conditions to the variance, and these conditions are not limited to “the scope of the police power.” Here is where esthetics may be brought back in. The board might require the owner to landscape the property in a certain way, or use a certain type of construction materials in exchange for granting the variance. While “zoning regulations must be based on the health, safety, and general welfare of the community,” conditions “imposed on variance permits are not regulations” and “may therefore have an esthetic quality.” Your reviewer is familiar with a municipality whose business district was upgraded substantially because the Planning Board did exactly that. The process took some twenty years to complete, but the transformation was remarkable.

Bassett’s work on zoning and planning began during the height of the influence of the Progressive movement in American politics. The Progressives transformed American politics, beginning with its first principles, which it no longer located in natural rights but in the movement of ‘History,’ now defined as the course of events, which supposedly was ‘progressing’ towards an ever-better, brighter future. Zoning and planning were entirely consistent with Progressivism, but was Bassett himself a Progressive? Are zoning and planning inherently ‘progressive’ instruments?

It is clear that Bassett was no admirer of the later New Deal version of Progressivism. “Since the advent of the New Deal the word ‘planning’ has been applied to almost everything,” he complains. “Planning has become confused with architecture, landscape architecture, municipal engineering and all kinds of rehabilitation work whether connected with the land or not,” but “my effort have been to separate city planning” from those matters. “It has seemed to me that the present tendency is to broaden it so that city planning becomes meaningless and vast sums of tax money are spent in collecting data that will never be useful.” The proper elements of a master plan are “streets, parks, sites for public buildings, public reservations, zoning districts, routes of public utilities and harbor lines,” but “now and then some stray subject appeals to the legislators and is thrown in along with the true elements,” strays that are now “getting very common and show that the mind of the legislature has no groove to travel in.” In “the last few years,” legislators “have been quite willing to ignore simple and stubborn facts in all fields of economics and in community planning as well.” Bassett wanted simply to prevent “congestion”—buildings that block sunlight and the circulation of air. “The progress of this country toward sunlit houses and the lessening of the human burden on the land continued until the federal government began erecting more than a billion dollars’ worth of so-called slum clearance houses four stories and over in height and in all cases increasing the human burden on the land.”

This doesn’t mean that Bassett was not a Progressive, however. Many Progressives of the first generation refused to board the New Deal bandwagon—Senator Burton K. Wheeler, for example. But although Bassett does deploy the term ‘progress’ favorably, he justifies zoning and planning in terms of natural rights to health and safety, not in terms of the alleged march of history. He is closer to the urban reformers who predated the Progressives—an opponent of political bossism and its attendant corruption and the adaptation of natural rights-based law to the circumstances that enabled builders to construct taller buildings and enabled manufacturers to build vehicles that increased air pollution. 

 

Note

1. Segoe, then a recent immigrant from Hungary, went on to write The Local Planning Administration (1941), which has been described as the most influential book on the subject of the twentieth century. The Technical Advisory Corporation of New York had been founded in 1913 by Earnest P. Goodrich, an eminent civil engineer who had earlier served as the football coach for what is now Eastern Michigan University.
2. Indeed, in 1902 Mayor McAneny had closed New York movie theaters because they tended to corrupt public morals and because celluloid film presented a fire hazard. Bassett observes that New York’s law was far from the first zoning law in the country, as many municipalities already had fire districts, but rather that New York’s was the first such law that comprehended all the major health and safety matters.