Monday, January 4, 2016
Distinguished Professor of Law, Pace Law School
Counsel, Land Use Law Center
The Need for Public Regulation of Land Use – The First Comprehensive Zoning Law
January 4, 2016
2016 is the 100th anniversary of the adoption of the first city-wide comprehensive zoning law. Its original purpose was to create districts that separated incompatible land uses and building types in order to protect property values and promote the health, safety, and welfare of the community. 100 years later, zoning is used to achieve an impressive number of public objectives such as permitting transit oriented development, creating green infrastructure, preserving habitat, species, and wetlands, promoting renewable energy facilities, reducing vehicle miles traveled, and preserving the sequestering landscape.
Zoning’s progress has been a long and dramatic journey. What was considered the appropriate use of the land in 1916 when the nation’s population was 102 million differs greatly from today’s notions--with over 300 million people, many of whom are abandoning rural communities and remote suburbs and moving into denser urban areas seeking livable, transit-oriented neighborhoods and settling in close proximity on land whose natural resources must be preserved for their health and enjoyment. One hundred years ago, the challenge concerned civil engineering and city building in urban areas; today it focuses on all aspects of land development and natural resource conservation in rural, suburban, and urban settings: all challenged by global warming.
Zoning grew abruptly out of the recognized power of local governments to protect residents from nuisance-like land uses and to achieve an appropriate scale of development in selected neighborhoods. Local officials understood that the ponderous process of civil law nuisance suits between individual property owners was not sufficient to protect larger areas within their jurisdictions. Locally-legislated height restrictions, for example, were validated in 1909 by the U.S. Supreme Court (Welch v. Swasey). In 1915, the Court upheld use restrictions that prohibited downtown riding stables (Reinman v. Little Rock) and brick manufacturing in Los Angeles (Hadacheck v. Sebastian).
These early precedents, however, fell far short of creating comprehensive standards for city building, designed to protect property owners and neighborhoods from incompatible land uses. This changed when the first comprehensive zoning law was adopted by New York City. A new subway system, the construction of new high rise buildings, the rapid expansion of the garment district, and increasing congestion in the streets struck fear into the hearts of building owners and businesses in Wall Street and the posh Fifth Avenue retail neighborhood. They called for reform, a study was done, a commission established, hearings held, and on July 25th, 1916 the City was ready with an ordinance, which was adopted by the Board of Estimate and Apportionment by a vote of 15 to one. This was the first zoning ordinance of its kind in the U.S., regulating land uses and building types in all neighborhoods of the City.
Cities are not sovereign entities; they get their legal authority from the state. New York City’s zoning law, for example, was enabled by a 1914 act of the state legislature, which amended the City’s Charter to authorize it to control land use. Twenty state legislatures, plus the District of Columbia, followed suit by adopting some form of zoning enabling act by 1921. In other states, many localities rushed to adopt zoning laws in the absence of state authority, risking invalidation due to their lack of legal authority. The need for enabling acts in all states and for a uniform and effective method of delegating control of land use to municipalities led to the promulgation of a model zoning enabling act by a national commission in 1922.
For more information, see Historical Overview of the American Land Use System: A Diagnostic Approach to Evaluating Governmental Land Use Control; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1345450