Flavel Shurtleff

Proceedings of the Second National Conference on City Planning and the Problems of Congestion, Rochester, New York May 2-4, 1910. Boston: National Conference on City Planning, 1910):178-182.

Shurtleff (1879- ? ) was a Boston attorney who became one of the early specialists in the legal aspects of planning. He helped organize the National Conference on City Planning and served as secretary from 1910 to 1935. He was also a charter member of the American City Planning Institute and was its secretary from 1918 to 1934. In 1935 he became counsel to the American Planning and Civic Association. In addition to his organizational activities, he became Associate Professor of planning legislation and administration at the Massachusetts Institute of Technology in 1940.

His book, Carrying Out the City Plan appeared in 1914 and for several years was the guide to the legal issues, opportunities, and techniques of city planning. The paper below is one of several papers he presented over the years at the national planning conferences. Here Shurtleff summarizes the provisions of Britain's first country-wide town planning legislation. The provisions of this statute attracted much interest in the United States as it began an era of statutory planning in Britain. Shurtleff failed to make clear that the act applied only to undeveloped land--not to built-up districts where the worst effects of the industrial revolution and the application of rigid housing and street by-laws had created vast areas of sub-standard and slum housing in dreary and depressing neighborhoods. Knowledge of British efforts to plan for urban expansion coupled with ample documentation of German achievements served to increase American attempts to develop adequate legal controls over the use of land and the height and bulk of buildings. By 1916 this would culminate in the enactment by New York City of the country's first comprehensive (although primitive by modern standards) zoning regulations. Shurtleff's writings and speeches added impetus to this growing movement.

The course of town planning in the United States and England offers a most instructive comparison. In our cities sentiment in favor of a more orderly city growth is so strong that the city of any pretension without its enthusiastic "Improvement Committee," is fast becoming an anomaly. This sentiment, however, has had little or no expression in our body of laws, with the result that much energy has been wasted. In England legal enactment in the shape of Town Planning Act of 1909 has preceded sentiment, which even in the largest cities is much in need of stimulation.

A detailed analysis of the act is at this time unnecessary, but it may be of value to outline the most important provisions from the point of view of our own difficulties.

The act is Part II of the Housing and Town Planning Act of 1909. Thus there is official recognition of the idea which needs more emphasis in our town planning,--that there can be little effective housing without town planning, that town planning must include a careful study of the housing problem, that both town planning and housing are essentially interdependent.

In conferring exclusive authority on and centralizing administrative powers in the local government board, the act carries out to an extreme unlikely under our system of government the principle that successful city planning is dependent on an administrative organization which shall have wide power and sole authority over all questions relating to the city's physical development.

The language of the act is to be interpreted by the local government board. It will have the duty to construe the object of the act expressed in the words: "to secure proper sanitary conditions, amenity, and convenience with the laying out and the use of the land and of any neighboring lands." Such language is of course capable of a very narrow interpretation, but it may be confidently expected from the composition of the central body, from the staff of expert advisers which it has already secured, that a construction as broad as possible within the limits of a necessary economy will be given the act. That this is not a mere prophecy is indicated by the fourth schedule of the act, which definitely provides that the local government board shall make regulations for streets and highways; buildings; open spaces, private and public; sewerage; lighting; water supply, or, in other words, a comprehensive scheme for a city's Development. The actual preparation of a town planning scheme is left entirely within the control of the local government board. Any proposition on the part of property owners or local authorities must be submitted to it, and only on its approval does the scheme become official.

Before such approval, opportunity is given for objections, amendments, or revocation of an already adopted scheme. The board will not give this approval unless satisfied that there is a "prima facie case" for making such a scheme. Just what a "prima facie case" is, has given rise to much discussion, but a most significant and satisfying suggestion to American planners is that such a case may be found in the Boston Metropolitan Improvements Commission Report of 1909. The emphasis is laid in all the discussions of the "prima facie case" on the necessity of co-operation between the different administrative bodies, such as was manifest in the Boston report, and of central supervision by experts in the employ of the local government board.

The local government board also determines the limits of the land which shall be included in the town planning scheme. The expression in the act is "Land likely to be used for building purposes, which purposes shall include not only land necessary for the erection of buildings," but such as may be used for open spaces, roads, streets, parks, pleasure, or recreation grounds, and the decision of the local government board whether land is likely to be used for building purposes or not, is final. In thus defining the area of the town planning scheme the board has also the power to suspend any regulation, statute, or by-laws in force over the area. The proverbial rigidity of the English by-laws thus gives place to a flexible system which is infinitely better adapted to the peculiar and different conditions of each area. As it is with the English by- laws, so it is with some of our municipal codes, and a provision which recognizes different local conditions might well be adopted in our municipal regulations.

The entire procedure under the act is regulated by the local government board. Some of these regulations appear in the fifth schedule, and for the most part are merely formal requirements. But in addition to formal regulations a clause in the act specifically provides that the board by regulation shall secure the co-operation on the part of the local authority with the owners and other persons interested in the land at every stage of the procedure, by means of conferences and such other means as may be subsequently provided. This is just the sort of thing that is being unofficially done in every city of the United States that is making progress in city planning, particularly in connection with the extension of the city plan into undeveloped areas. It is as true in the United States as in England that much of the larger development of the land is dependent on real estate operators, and it is certainly a most sane provision which aims to secure the co-operation.

Ample power is given the board to enforce the execution of the scheme. Although the local authority has the power [ 180 ] to condemn private property which includes the power of removing, pulling down or altering any building not in conformity with the scheme, it is the board sitting as arbitrators which decides whether any building or work contravenes the town planning scheme, and the decision of the board is final and conclusive and binding on all persons. In the same way the board decides whether there is any failure or delay in the execution of the scheme, and after its decision the local authority proceeds to execute.

In all questions of compensation the local government board again by its power to appoint a single arbitrator, unless the parties agree on some other method, has control of the question whether any property is injuriously affected within the meaning of the act. The clauses relating to compensation are peculiarly interesting, in view of the fact of the recent activity along these lines in some of our cities. The principle of excess condemnation has been carefully presented to the conference, and the opinion of the Massachusetts Supreme Court in relation thereto. The English act cuts the Gordian knot by providing that the local authorities shall be entitled to recover from any person whose property is increased in value by the operation of the scheme one half the amount of that increase. Thus does the municipality reap the benefit without any of the risks attendant on speculation in land values. A provision already familiar in some American cities withholds compensation for any building erected on land included in the scheme after the time at which the application for authority to prepare the scheme was made. Our courts have held almost universally that an exercise of this right was a taking of property which must be compensated for.

The act contemplates action. If local authorities are laggards, if property owners fail to grasp the opportunities which ought to appeal to their civic pride, if delays in execution of an adopted scheme are found unwarrantable, the local government board by mandamus may force the local authority either to prepare a scheme, to adopt one which has been approved, or to execute forthwith the scheme adopted. The expense of carrying out the scheme is to be met by loans which are not to be reckoned as part of the municipal debt for the purpose of determining the debt limit.

The events which followed rapidly after the passing of the act dissipated any doubt of the value of the measure. On December 10th, seven days after the act became law, the first conference of the Garden City Association was held to discuss the practical application of the act, and four days later the National Housing and Town Planning Council met for the same purpose. There is much that is profitable in these discussions. The faults, as well as the merits, of the bill were fully considered, but perhaps the most interesting thing done was the appointment of a so-called "advisory committee" composed of town planning experts, architects, members of town councils, and large property owners, whose business it is to watch the working of the act, to offer suggestions both to the local government board and the local authorities, to report cases where town planning is needed, but where no sentiment for it exists.

Local conferences are being planned, local committees are being formed; the local government board is at work on the regulations which the act calls for. Prophecy is valueless, but judging from the interest shown by municipal officials and by the orderly way in which those interested are proceeding, the act begins a new era in English town planning. 

Selected, scanned, edited, provided with headnotes, and formatted as a web document by John W. Reps, Professor Emeritus, Department of City and Regional Planning, West Sibley Hall, Cornell University, Ithaca, New York 14853, USA. Tel: (607) 255-5391, Fax: (607) 255-6681, E-mail: 
To Top of Page
To Homepage