DISTRICTING BY MUNICIPAL REGULATION
Proceedings of the Eighth National Conference on City Planning, Cleveland, June 5-7, 1916. (New York: National Conference on City Planning, 1916.):147-158.Veiller was Secretary of the National Housing Association with its headquarters in New York City. He was among the leaders of the movement to establish zoning regulations for New York, regulations that were adopted later in 1916 to make New York City the first American municipality to adopt a comprehensive set of land use and building bulk restrictions. No one was completely confident that such intrusions into the right of owners of urban land to do more or less as they wished with the property. Veiller invoked the U.S. Supreme Court decision in the Hadacheck case that arose from challenges by the landowner to a Los Angeles regulation that not only prohibited brickyards in a residential district but required that if such a use existed prior to the adopted of the regulations it must cease operations.City planners must frankly admit that there has been much basis for the criticism so often heard with reference to the city planning movement in this country, to the effect that this movement has been largely discussion and that little real city planning has been done; that in actual achievement the results have been slight.
The reason that so little has been done, I am convinced, is because of the fact that we hay-e not heretofore been able to carry out a city plan, owing to our inability to adopt any plan for the proper districting of our cities.
We heard this morning, and all students of city planning know, that city planning if it means anything, means essentially differentiation--differentiation, for instance, in the use of streets; differentiation of through thoroughfares and residential streets; differentiation in the width of streets.
But how in the world can we differentiate these vitally important things if we have no means of knowing what our neighborhood is to be?
That is the problem which confronts the man who is planning a city in advance of its development.
How many city planners are to-day able to say when they plan a city: "This portion is to be a residential district and remain so. And this section of the city will be a factory district and remain so. And this other portion of the city is to be a district in which the workingmen will have their homes." How delightful it would be if we could say anything of the kind. To those who have been working against all the practical difficulties we have had to encounter, it sounds like a beautiful dream
In other respects city planning means differentiation. Differentiation, for instance, as to the size of lots. We need a totally different width and depth of lot for a millionaire's mansion, such as those 1,000-foot lots on Euclid Avenue that we saw to-day, than we do for a mechanic's house.
Again, we need a different sized lot for the unskilled laborer who at best can earn but $15 a week than we do for the skilled mechanic who earns from $25 to $40 a week.
It is obvious that we require a different size and shape of lot for a factory than we do for a residence.
We have been asked as city planners to develop plans for our cities when all the time it has been impossible to know which portion of the city would be a factory district and which a residential district and would remain so during the reasonable life of that community.
It is not strange, under these circumstances, that not having this knowledge essential to the proper development of the city plan there has not been much done in the way of the actual planning of our cities.
By "districting" we mean, I take it, the dividing up of the city into districts or divisions on broad lines and the regulating of the character of those districts through laws and ordinances which will prescribe different uses for buildings in different districts and which will regulate the height of buildings on a different basis in those districts, as well as the amount of open space necessary for light and air.
We may have a wonderful civic centre development such as is being carried out here in Cleveland; we may have a wonderful park system such as they have in Boston and Philadelphia; or a wonderful system of recreation facilities such as they have in Chicago--but that is not city planning, important as it is. It is only one phase of city planning.
There can be no city plan until the uses of the various portions of a city can be determined with some degree of definiteness.
So it is not strange that city planners have not heretofore done much actual city planning. It has not been their fault. They have known well enough what they wanted to do, but they have not known what they could do under conditions of government such as prevail in this country.
Because of these limitations, the real estate developer has tried in the past where he could, by private restriction, to carry out the results which he wished to accomplish. We all know what these private restrictions, as a rule, are worth.
Someone asked this morning in one of the discussions, what should be the life or term of the restriction. I felt like saying, "There ain't no such animal," because we all know that 25, 50 or 75 years after the development has been made, conditions change and the courts step in, and the man who placed the restrictions being dead, the courts as a rule say, "We will not maintain these restrictions any longer." I do not mean to suggest that there are not many things that may not be wisely governed through the medium of private restriction, but in maintaining a residential district, for example, the general experience seems to be that we cannot expect in the long run to maintain its integrity as a residential district through what is at best merely a private contract or agreement between two parties. The courts have held repeatedly that when the parties to a contract want to set that contract aside there is no reason why it should not be set aside. The question of the public interest as a rule does not enter.
Some of the difficulties encountered in the attempt to control the character of a neighborhood through restriction are very delightfully illustrated by a report made recently by a committee of the Advisory Council of Real Estate Interests in New York City. I am going to read to you, if I may, for a brief moment, what this committee discovered, and they only scratched the surface.
"The object of the investigation was to reach some reasonable working basis whereby the difficulties of the restrictive covenants might be lessened, but the committee virtually admits the impossibility by plainly saying: 'It is impossible at present to lay down any rules for the guidance of the real estate fraternity on this subject, and hence the problem of restrictive covenants in this city a paradoxical, a problem almost without a solution.'
"A resume of the committee's report is a statement of facts clearly demonstrating what are termed many inconsistencies in the legal decisions.
"Thus, apartment houses are permitted in the face of private house restrictions in the Murray Hill tract; on Twentieth Street, Manhattan, on West Seventy-eighth Street between Broadway and Amsterdam Avenue; on 140th Street and St. Nicholas Avenue, but a three-family house may not be used as such on Sedgwick Avenue and Undercliff Avenue in the Bronx; a private house cannot be used as a sanitarium in Brooklyn nor can a private garage be built on the same lot in White Plains. A tenement house may be erected despite a private-house covenant in Brooklyn but not on Tenth Avenue and Sixty-fourth Street, Manhattan. A private house may be altered into an undertaking establishment on Madison Avenue and Forty-first Street; into a dressmaking shop on West Twentyfourth Street; but not into a business but/ding on West Fortieth Street, and neither may a dressmaker hang out a sign on West Fifty-second Street.
"A nurses' home may be erected on Seventy-first Street and Madison Avenue, a livery stable may be maintained among the flats on East 189th Street; an apartment hotel is permitted on Forty-third Street and Fifth Avenue; but to bake bread and cake in a baker's oven on the Southern Boulevard will be enjoined. To maintain a resin refinery in the Erie Basin section of Brooklyn is a nuisance, but the elevated railroad in the Bronx is permitted. A twelve-story loft building may be set out to the building line in violation of a set-back agreement on Twenty-sixth Street, Manhattan, but woe betide him who sets out a one-story shed on setback space in Brooklyn. An automobile station at Broadway and Eighty-first Street amounts to a wrong use, but a garage in a private house neighborhood is all right in Flatbush.
"All this is bad end discouraging to those who deal in real estate and those who are called upon to advise owners and inventors,' says the committee."
That is put far more succinctly than I could put it and gives you a graphic picture of the discouraging results that have come from the varying court interpretations of different private contracts between owners who have sought to preserve the residential character of the neighborhood in which they were building and to safeguard it from particular evils which they had in mind.
While failure to function is of course serious, a more serious consequence, however, is that under this method a restriction chiefly acts so as to be a cloud on the title of the property affected and thus helps to destroy values. Few men are willing to invest their money in real estate under these circumstances, when the only guarantee of the stability of the residential character of the neighborhood is to be found in private agreements subject to such conflicting decisions of the courts as have been cited.
In order to give confidence to investors a restriction of this kind must not only be good, it must seem good. It is like a man who is virtuous in these days. He must not only be virtuous, but he must seem virtuous.
Therefore we are forced to the conclusion which Mr. Taylor has enunciated, that in certain fundamental things we can control the character of our neighborhoods only through state or municipal regulation.
If I should suggest to this audience that you should attempt to control the purity of the milk supply in Shaker Heights by convenant[sic] in the deed you would rightly think it a ridiculous proposal.
Similarly, if it should be suggested that we should attempt to insure the safety of the pedestrians on our thoroughfares and highways by private agreement among property owners, inserted in the deeds, everyone would think it absurd.
There can be no doubt that the time has come in America when we should call upon the state to use its great power and prohibit those things that we know are clearly injurious to the community.
Seven years ago our most western state, California,progressive as she always is, led the way in developing a plan for the districting of cities. I am not going to burden this audience by reciting in detail the scheme of districting thus evolved. It was set forth two years ago at our Toronto meeting. Let me, however, briefly remind you of what the Los Angeles scheme was.
A municipal ordinance was passed in that city by which the city was divided into three main kinds of districts-- industrial districts, residential districts, and what were known as "residence exceptions," a sort of twilight zone where certain unobjectionable industries were permitted.
In one of the residence districts created under the ordinance it happened that there was in existence a brickyard owned by a man by the name of Hadacheck, a name that is destined to be famous.
I do not know whether Hadacheck was unduly litigious or not, but at any rate he was determined to find out whether the state had a right to deprive him of his brickyard.
The ordinance in question was retroactive and not only forbade the creation of any brickyards in the future in this residence district but declared unlawful the maintenance of all existing brickyards and required that they be discontinued.
The case was carried to the highest court of California, and notwithstanding the fact that Hadacheck was able to show the Court that the brickyard had been located there at a time when the neighborhood was not within the city limits, that it had been in existence long before any residential character of the neighborhood had developed, that the land was more valuable for the manufacture of brick than for residence purposes, that he had invested some $50,000 which would be absolutely wiped out if he was required to abandon the brickyard--notwithstanding all of these facts, the Supreme Court of California held that the ordinance was constitutional and Hadacheck was required to discontinue the making of bricks at this location.
Following this California precedent, but without knowledge of it apparently, a number of other cities have enacted similar ordinances and some states have passed laws dealing with this subject.
Those of us who believed in the idea of districting waited to see what the highest court of the land, the United States Supreme Court, would do when the case finally reached it, hoping that the California decision would be sustained.
To be entirely frank with you, a good many of us did not believe it would be sustained, though we greatly wished it. The lawyers whom we consulted in the East told us, "Yes, that is the California decision, but the courts here do not think very much of California decisions."
Finally we reached a point where we thought it was time we should know definitely what we could do and what we could not do, and some of us made up our minds that it would be wise to bring a test case and carry it to the United States Supreme Court so that we might know definitely whether it was possible to control the character of a residential district through the use of the police power.
As we put it--it was time that the highest court of the land should tell us whether we could do this thing, and if so, how we might do it.
They told us this in January when the United States Supreme Court handed down a decision in this case of Hadacheck. They not only sustained the ordinance as constitutional and as a proper exercise of the police power, but they wrote an opinion that is a landmark in the history of American jurisprudence--an opinion concurred in by the entire bench. It is the most sweeping opinion that I have ever had the pleasure of reading. In my judgment it will revolutionize conditions of living in American cities and within the lifetime of all of us who are present.
I want to call your attention to two points in this opinion that are of especial moment.
For the first time in American jurisprudence we have a statute of this kind sustained, not on the basis of public health nor public safety, but on that novel, broad and sweeping ground, "the general welfare."
This opens a door a crack, which may be opened very wide. How wide it may be opened few of us can tell. We all know that the police power has been a rather vague, indefinite thing. The courts have wisely kept it so and at times it has seemed to many to have been stretched pretty far.
But so far as I can discover. this is the first time where the police power. This is, of course, only a personal opinion and worth what personal opinions are generally worth.
We cannot of course do everything by municipal regulation. We cannot, for instance, determine the character of the architecture in the Shaker Heights development by means of law; nor can we determine that the houses in that subdivision shall cost not less than $10,000 or $15,000, through municipal regulation. We cannot say, for instance, that all the roofs in a given district shall be pink, as they are in Forest Hills, by municipal regulation. Some people are glad we cannot.
There are many other things that will still have to be done through private covenant in the deed. Many such restrictions will undoubtedly last for many years, and my advice to tile subdivider is to keep them there, no matter how much municipal regulation we may also have.
Just one word about my city of New York before I close. There is a colossal piece of work being done there in districting that great cosmopolitan population of over five million people, and the citizens of New York and the people of the whole country owe a great debt of gratitude to the men who have been doing this work. I mean especially men like Ed. Bassett, the chairman of our New York Districting Commission, who has given his time unstintedly and who not only is good but seems good! He not only is judicial in temperament but seems super-judicial; at least, at all the public hearings.
Why, ladies and gentlemen, a man could present his case to Bassett and go all the way back to Flatbush and back again to the hearing in Manhattan before Bassett would have completed his decision!
One of the interesting things about this New York work has been the attitude of the public. Much to the surprise of the members of the commission and its friends, the commission has been criticised pretty generally, not by the uplifters and city planners, but by real estate men and property owners-- not because its recommendations were too drastic but because they were not severe enough.
Practically all of the newspapers in New York have been writing editorials nearly every week on the subject,commending the commission's work and pointing out the great importance of having its recommendations enacted into law.
This attitude of the press has been due largely to the intelligent way in which the commission has handled the subject.
While it is a Bassett commission, it is also a Ford commission--not the kind you mean, however--for Ford, as many of you know, has been one of the three chauffeurs on the job. The other has been Whitten, the secretary of the commission. Whitten, however, is so busy that he cannot be here-- I do not mean to say that Ford does not work, but somebody has to work, and Ford is the more showy of the two, so Whitten is staying home.
Before organizing this session of the conference, I asked Ford if he would give us some suggestions as to what we ought to discuss at this session.
He sent me fifty-seven questions, each one of which he said was "basic," and each one I later discovered would practically take the entire evening to discuss.
When I sit down in a few moments I am going to let Ford discuss those fifty-seven problems, if the Chairman will give him a chance.
Speaking seriously, the problem in New York is a great one and the work that is being done is epoch-making. Of course the commission have not been able to do half the things they wanted to do. The standards they have set are nothing like high enough but they could not have set them as high as they wanted to and at the same time have carried with them the support of the entire community--the real estate interests, the financial interest, the building interests, practically everybody. Under their regulations they did not do a whole lot of things that some of us would like them to do and a whole lot of things they would like to do themselves, but they are starting right.
Nor is the value of their work by any means limited to New York City. Like many other things in that great centre of population, what is done there is of value to the whole country. With the adoption of such regulations in New York City, a wave will spread throughout the entire land, even into the smaller cities, a wave of public sentiment for the adoption of similar regulations.
In many cities throughout the country people will say as they do so often: "If New York can do this, why can't we?" and they will start in and begin to district their own towns.
The situation as I see it is the most hopeful one the city planning group has ever had to face. I repeat, we are standing on the edge of a great change in living conditions in America. We are going to revolutionize conditions in a generation so that the generation that comes after us, reading the accounts of how we hesitated and deliberated and wondered what we could do, will say: " Is not that an interesting illustration of the timidity and lack of courage of the men who went before us? Why they actually deliberated for years whether they could district a city!"
[Veiller's paper stimulated a long discussion. Several of the participants spoke at length. They included Edward M. Bassett and George B. Ford, referred to by Veiller in his address. Both were deeply involved in drafting the regulations and in explaining their provisions.] .
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