Land Use & Zoning: A General Overview
What is zoning? Zoning defines what and where people and institutions can and cannot build and operate in our cities, suburbs, and towns. While the idea of zoning regulation goes back many centuries, (Professor Sonia Hirt notes one of Hammurabi’s many codes enforces with penalty the idea of providing safe construction).[1] Many ancient cultures had some type of planning or land use management. Indian Vedic-era (approximately 1500-500 b.c.e) planning manuscripts had proposed what we would consider modern land-use zoning, (areas for temples, open-spaces, residential areas, etc.,).[2] While not necessarily implemented, they created subdivisions by caste and profession.
It was as late as the 1870s when the actual invention of zoning was credited to the Germans, when a university professor, Richard Baumeister, published a monograph on urban planning. He had observed grouping together of like industries and sectors and suggested “to reinforce this natural process by a municipal legal mechanism –– districting or zoning.[3] Eventually, this process was enacted in Frankfort in 1891.[4]
[Frankfurt Zoning Map 1891][5]
The method of zoning in Germany was seen as forward-thinking and was copied elsewhere in Europe, and admired by American planners such as Daniel Burnham, Frederick Law Olmsted, Benjamin Marsh, and others. Seen as a preferred method, Marsh wrote about the German zoning model in 1909, introducing it to the rest of America.[6] Eventually, Germany would not be seen in such good light, but zoning had taken root in America, formed to its own need.
Zoning wasn’t intended to segregate people as much as land use. Segregation by race is against our constitution but still happened. The federal government put protections in place in the form of amendments to right the wrongs of the past, yet they also left enough wiggle room to crush the civil rights of the same people. Richard Rothstein’s book The Color of Law focused on the discrimination and breach of civil liberties that African Americans face in housing, but they are by no means the only group that has been affected. But choices made by individuals, and not the state are not the state’s responsibility to remedy, according to a decision written by Justice Roberts in 2007.[7] But on the contrary, as Rothstein points out, most all discrimination is a product of government-sponsored policy. But where did the ideas for these policies come from?
Rothstein argues that policies such as those created by the FHA were not innately racist, but a reflection and confirmation of policies of racism at the local levels. That is, rather than specific racist policies on the books, individuals and the city officials that represented them naturally excluded people of color in the function and growth of the city. In other words, individuals, or members of the community have created the very barriers to equity and inclusion that are mirrored back at the national level. This is pointed out (when referencing WWII-era housing practices) by Carey McWilliams: “the federal government planted seeds of Jim Crow practices throughout the region under the guise of respecting local attitudes.” [8] While McWilliams has a good point here, the attitudes of locals were an easy excuse for officials to make. Deed restrictions, which pre-dated the use of zoning and ordinances as a way to segregate was widely used in Berkeley’s early days.
In “Rise of the Community Builders,” urbanist Marc Weiss had noted in the 1980s that deed restrictions were used for racial and ethnic discrimination. One of Berkeley’s influencers on such ‘wise use’ restrictions was Charles Cheney who wrote: “…protective restrictions and the high-class scheme of layout which we have provided tends to guide and automatically regulate the class of citizens who are settling here.”[9] By restricting people of color and requiring a minimum cost, the plan was to group those of similar income together.
In Berkeley many of these communities formed in the shape of residential parks. “The rationale for discrimination in residence parks was the same as the one used in other subdivisions: if racial minorities were allowed, white residents would flee or not buy in the first place, and property values would drop.”[10] Indeed, purchasers of these restrictive communities quickly came to expect certain restrictions that would guarantee protection from their neighbors – whether in the form of ‘nuisance’ activities, or the very sort of people moving in next door. These practices became so ingrained into the system as to be almost invisible to all but those who are experiencing these multi-tiered discriminatory practices today. Zoning is a concept of human design that was meant to create order... but by creating restrictive covenants, then layering on single-family zoning -- officially sanctioned at the national level in 1926's Supreme Court case Euclid v Ambler -- which codified the power of municipalities to regulate local land-use through zoning. [11]
[1] Sonia Hirt, Zoned in the USA: The Origins and Implications of American Land-Use Regulation (Ithaca: Cornell University Press, 2014), 90.
[2] Hirt, 94.
[3] Hirt, 135.
[4] Hirt, 135.
[5] Emily Talen, [Frankfort Zoning Map] City Rules How Regulations Affect Urban Form. (Washington DC: Island Press,2012), 30.
[6] Hirt, 137.
[7] Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America. (New York: Liveright Publishing Corporation, a division of W.W. Norton & Company, 2017),xiv.
[8] Rothstein, 37.
[9] Marc A. Weiss, 1986. “Urban Land Developers and the Origins of Zoning Laws: The Case of Berkeley.” (Berkeley Planning Journal, Vol. 3, No.1), 153.
[10] Richard Brandi, Garden Neighborhoods of San Francisco: The Development of Residence Parks, 1905-1924. (Jefferson N.C: McFarland & Co., 2021), 49.
[11] Hirt, 34.
