Zoning’s Centennial, Part 2: The Delegation of Legal Authority to Adopt Zoning: A Series by John R. Nolon

[This post is part of an on-going series on the 100th anniversary of the first zoning law.  Links to previous posts in this series are at the bottom of this post.] 

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

 

The Delegation of Legal Authority to Adopt Zoning

 

January 18, 2016

In my last post, I explained that 2016 is zoning’s centennial and discussed the circumstances of its adoption in New York City, ending with a comment on the need for state-adopted zoning enabling acts to empower local governments to enact land use regulations. Following New York City’s action, zoning spread quickly.  By the mid-1920s, over 500 local governments had adopted comprehensive zoning laws.  Their authority to do so was granted by enabling acts originally drafted by the federal government and then adopted by their state legislatures. 

Although the federal government has limited power to regulate local land uses, it has an important role to play in enabling, guiding, and assisting local governments to exercise their delegated power wisely. Zoning’s story illustrates the powerful influence that the federal government can wield if it plays this facilitative role strategically.  In the case of zoning’s adoption, the story involves the federal Department of Commerce.

As Secretary of Commerce under presidents Harding and Coolidge in the 1920s, Herbert Hoover paved the way for the rapid adoption of zoning. Hoover noted “Our cities [do] not produce their full contribution to the sinews of American life and national character” and these “moral and social issues can only be solved by a new conception of city building.”  His response was to appoint two advisory committees: one to write a standard building code and another to draft model zoning and planning statutes to be adopted by the states, in their discretion.

The latter committee was called the Advisory Committee on City Planning and Zoning; it appointed a subcommittee on laws and ordinances, which produced a final draft of a 17-page enabling statute called A Standard State Zoning Enabling Act Under Which Municipalities Can Adopt Zoning Regulations (“SZEA”). The draft was released by the Commerce Department on September 15^th, 1922. It contained nine sections, including the grant of zoning power to local governments; a provision that the local legislature could divide the city into districts, or zones; a statement of zoning’s purposes; the creation of a zoning board of appeals, and procedures for establishing, waiving, and amending those regulations. By the end of 1927, over half of the states had adopted some form of the SZEA. 

The success of the SZEA paved the way for another act, A Standard City Planning Enabling Act (“SCPEA”), intended as a companion to the SZEA, which requires that zoning conform to a comprehensive plan. The SCPEA was to provide for the creation of such plans and to effect the coordinated and harmonious development of cities. It covered several major topics:  

• the adoption of and recommended content of a “master” plan;
• the creation and operation of a planning commission;
• the adoption of a street plan, or official map;
• involvement of the planning commission in approving public improvements;
• planning for the subdivision of land into marketable parcels; and
• the voluntary creation of a regional planning commission and a regional plan.

After its publication in 1928, the SCPEA was not as widely implemented by state legislatures as was the SZEA. Some felt that a city-wide zoning ordinance embodied a sufficient comprehensive plan and that a separate plan was not needed and then, of course, land development and land use planning largely ceased from the stock market crash in 1929 to the end of World War II in the mid-1940s.

All 50 states have adopted some form of the SZEA and most have adopted a version of the SCPEA. In many of these states, the initial enabling acts were virtual verbatim versions of the Commerce Department’s drafts and a surprising number of them retain a significant amount of that original content today. The standard acts recognized the political nature of controlling private land use and the great diversity among municipalities in every state; as a result their provisions are largely voluntary. Under their terms, zoning and comprehensive plans may be adopted. The American land use system today largely retains this opt-in feature.

The original approach to zoning and planning raises many questions:

• how can a system of law that relies on localities with limited geographical jurisdictions properly serve the needs of larger regions;
• was it wise to separate land uses into prescribed districts, within which standards must be uniform;
• did such uniformity unduly constrain the organic process of growth and produce an artificial settlement pattern;
• how can the flexibility needed to respond to unique market and geographical conditions be realized under such a rigid system of law;
• did zoning protect the urban poor and public health by preventing congestion, overcrowding, and blight, or is it overly protective of property investment and values;
• was is it prudent to empower locally-elected legislators to adopt land use regulations without mandating the adoption of a comprehensive plan prepared by a less political body; and, of course,
• was the separation of land uses into districts constitutional: did it violate landowners’ due process or equal protection rights or was it a taking of property without just compensation?

There was much to be worked out as zoning entered its second decade in 1926, when the latter question reached the U.S. Supreme Court.

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.

Links to previous posts in the Zoning's Centennial series:

Part 1:  The Need for Public Regulation of Land Use – The First Comprehensive Zoning Law