2
The Six Stories of Zoning
Raphaël Fischler
Introduction
Zoning was adopted for a number of distinct but related reasons, and motivations for its current application remain plural. For example, regulating
building heights may help to lessen the threat of fire, limit the range of housing types available, shape the streetscape, distribute populations according
to infrastructure supply and boost the amount of tax revenue from development. Thus, the history of zoning can be told through a number of separate
but overlapping stories. I focus on key elements of these stories in North
America (specifically Montreal and New York City) while alluding to a few
European precedents and even fewer international examples.1
The multiplicity of motivations for zoning, and hence of actors expressing them, is particularly important in the North American context (Fischler,
1998a; Randle, 1990). In Germany, which many consider to be the birthplace of modern zoning, the practice was promoted primarily as a means
to improve housing conditions (Ladd, 1990). In fact, on both sides of the
Atlantic Ocean, the first zones with differentiated building regulations were
districts reserved for upper-class housing, areas where only detached houses
could be built and from which factories were banned. Such districts were
created in Germany as early as the 1870s, based on enabling legislation from
the 1860s. At that time, only private covenants could achieve such ends in
North America; they were superseded by municipal regulations only in the
early 20th century.
For its inventors, zoning entailed the division of the whole municipal territory in a series of districts with differentiated regulations that represented,
as planning pioneer Reinhard Baumeister argued, the best “compromise
between sanitary and financial considerations,” between desired built forms
and existing market conditions (quoted in Ladd, 1990, p. 189). The historical reality is more complicated than Baumeister’s statement suggests. Zoning
has always served multiple needs at once. Some of these needs are related
to environmental, social, financial, and fiscal externalities that private realestate development produces (Lehavi, 2018). Other needs are related to
positive goals and aspirations for urban life, not just problems we want
The Six Stories of Zoning
17
to remedy but also ideals we want to approach in building the city. How
political leaders, social reformers and professionals developed zoning and
adapted it to new conditions can therefore be told in six stories, which have
been given the titles “Danger,” “Identity,” “Money,” “Beauty,” “Nature”
and “Power.” These are not necessarily stories that the inventors of zoning
told; they are narratives that historians of zoning can identify in order to
explain why zoning was adopted and why it evolved the way it did.
Story 1: “Danger”
The earliest forms of zoning, that is, of control over what could be built
where and how, were adopted in medieval times and responded to dangers
and nuisances. Industrialization magnified problems of proximity among
incompatible land uses and increased the need for public intervention in
the production of the built environment. Districting as a principle is, in
large part, a logical response to threats from dangerous or noxious activities. However, as such activities diminish in frequency and in scope in our
postindustrial economy, spatial separation is giving way to more flexible
forms of regulation.
The “sanitary considerations” behind Baumeister’s early zoning proposals
were not necessarily the expression of benevolence—the poor health of conscripts from overcrowded urban areas worried military leaders preoccupied
with the ability of recruits to perform on the battlefield (Mullin, 1976)—
but they nonetheless expressed a very important and long-lasting concern
with the health and safety of city residents. That concern is conveyed in the
institution of the police power, the power of the state, delegated to municipalities, “to exercise reasonable control over persons and property within its
jurisdiction in the interest of the general security, health, safety, morals, and
welfare” as per the Merriam-Webster dictionary (“Police power”, 2019).
Contrary to the use of the power of eminent domain, the exercise of police
power does not require compensation for constraints imposed on property
rights or other rights (Freund, 1904).
Protecting urban residents from all manners of dangers and maintaining
them in good health have been principal tasks of public authorities since the
beginning of urbanization. Walls to repel attacks, provisions to quarantine
people during epidemics, aqueducts to bring in potable water, sewers to carry
away human waste, regulations banning slaughterhouses to areas outside
the city, and many other means have been used to lessen risks and nuisances
associated with the close cohabitation of large numbers of individuals. Over
time, regulatory measures increased in number, diversity, and sophistication.
By the time they were incorporated as autonomous municipalities, in 1834,2
Montréal and Toronto already had an assortment of building and land use
regulations on their books to manage urban development. Buildings could
not be erected on a street unless an official building line had been established
beyond which projections were forbidden (with some specified exceptions);
18 Raphaël Fischler
homes were not to be built without their own privies; wood was outlawed
as structural material in central areas (fire codes were an early form of zoning); party walls and chimneys were to be built according to quantitative
specification standards; the storing of hay, gunpowder, and other flammable
materials was, if not forbidden, at least strongly regulated; taverns were
not to be opened or operated without a permit; vacant land within city
limits, seen as a potential source of nuisance, had to be properly maintained
­(Fischler, 2007, 2014). Most provisions can, in fact, be traced back to European practices in the Middle Ages. The earliest building and land use bylaws
in French Canada were drawn from the Coutume de Paris, a set of civil laws
drafted for the city and region of Paris in medieval times, codified in 1510
and written into the civil code of New France in 1664 (Zoltvany, 1971).
After the British conquest of New France in 1760, English precedents, also
dating back to the Middle Ages, were applied to land use regulation as well.
In Montréal and in Toronto, as in all cities that underwent a rapid process of industrialization, the concentration of factories and workers and
the latter’s exploitation at the hand of a nascent capitalist class generated
terrible congestion and hellish housing conditions. Reformers of various
stripes, from the radical Friedrich Engels to the conservative Lawrence
Veiller, denounced the greed and neglect that placed workers in unsanitary
living conditions (Engels, 1845; Veiller, 1905). While Engels thought that
nothing short of political revolution would help the working class obtain
better living conditions, Veiller put his faith in regulatory reform, specifically in higher housing standards made possible by rising standards of living
(Lubove, 1974). In New York City and, subsequently, in the rest of the US,
Veiller’s vision prevailed.
New York City zoning pioneers borrowed directly from the work of tenement reformers when they instituted standards on the height of buildings
(relative to the width of the streets on which they stood), on the size of
courtyards, and on the depth of setbacks (Veiller, 1903). In their famous
1916 zoning ordinance, reformers expanded on tenement regulations by
applying such standards to all types of housing and nonresidential development ­(Fischler, 2000; Haar & Kayden, 1990; Ward & Zunz, 1992). Like
tenements, office buildings needed greater access to light and air to fight
the scourge of tuberculosis (insofar as sunlight kills the tuberculosis bacillus and fresh air reduces its prevalence). But they also needed protection
from neighboring developments that would lessen their property values by
robbing them of natural light and outdoor views (Weiss, 1992). Likewise,
outlying areas had to be protected from the spread of tenement buildings
that could accompany the extension of public-transit service to the outer
boroughs (Fischler, 1998a).
The problem with zoning, in relation to nuisances and externalities, is that
it is a crude instrument. It uses functional classification and spatial separation
to keep apart activities that are deemed incompatible, but incompatibility is
a relative and evolving quality. For instance, grocery stores are kept out of
The Six Stories of Zoning
19
most suburban residential areas in the US because deliveries by trucks are
deemed a hazard, because a store is seen as an eyesore in an attractive environment, or because the sale of beer is considered antithetical to norms of
good parenting in certain social milieus. Such exclusion is much less typical
of European suburbs, where local businesses are more often tolerated (Hirt,
2014). Changes in technology have greatly affected the logic of spatial differentiation that zoning formalized in the industrial era. As manufacturing
declines in its share of the economy and as manufacturing activities become
cleaner, old land use classifications lose their relevance. Hence, “Euclidean” zoning (named after the 1926 decision of the US Supreme Court in
Euclid v. Ambler), under which different land uses and housing types are
segregated, is no longer seen as the best way of regulating development. New
construction and measurement technologies also influence the management
of nuisances in urban space. They enable a shift from specification standards
to performances standards: instead of specifying exactly how land should be
developed or structures should be built, regulators set a standard for their
behavior or impact and let developers and builders find the best way to meet
the requirement. For example, the city of Toronto completely overhauled
zoning regulations in two older neighborhoods in 1993, removing all rules
concerning land use and focusing instead on built form and on performance
with respect to nuisances (Bedford, 1997).
Story 2: “Identity”
Although the wealthy have long sought ways of distancing their homes from
nuisances and from the homes of the poor, they did so with greater zeal in
the industrial era. Land developers at first used restrictions in their deeds of
sale to give buyers a stable, protected environment, where the use value and
exchange value of their property would be safeguarded. Zoning came to
the rescue when such deed restrictions proved insufficient to control rapid
urban change. Using a classification of housing types and various land use
standards that influence the cost of housing, municipalities effectively helped
to separate different socioeconomic groups. Their actions were met with
resistance from civil rights groups and state agencies throughout the 20th
century. In a historical reversal, zoning has been put to use since the 1980s
to promote the integration of diverse households.
Spatial separation serves not only to insulate properties from harmful or
bothersome activities but also to distance property owners from people they
do not like. In the history of city building, prejudice respecting class, caste,
religion, ethnicity, and race has played an important part in the process
of socio-spatial differentiation (Nightingale, 2012). In the industrial city,
the bourgeoisie (and, later, the broader middle class) sought to create residential areas in which it could develop and pass on its financial and social
capital. The spatial sorting took different forms in different places: to simplify, whereas the bourgeoisie of French and Southern European countries
20 Raphaël Fischler
preferred to stay put in the city, pushing the working class, together with
industry, to the periphery, the bourgeoisie of Anglo-Saxon countries chose to
build a “bourgeois utopia” in the suburbs, leaving the city to industry and
its workers (Fishman, 1987).3 In the battle against the mixing of “incompatible” people and activities, which was fought more fiercely in North America
than it was in Europe (Hirt, 2013, 2017), a certain amount of diversity
was tolerated with respect to function; much less tolerance was shown with
respect to race and class (Talen, 2012).
To protect the new bourgeois enclaves, developers, at first, resorted to
private deed restrictions, special provisions in sale or leasing contracts that
prohibit the erection of nonconforming buildings and that otherwise protect
the social and physical environment. “The restrictions,” a researcher noted
in the 1920s, “define not only what an individual may or may not do with
his property, but also how far he may go in preventing others from doing
that which might damage his interests” (Monchow, 1928, p. 1). Included
among these interests was the desire to live among people with similar habits and beliefs and with similar (or higher) socioeconomic standing. On the
periphery of London and other British cities, aristocratic landowners carefully controlled the construction, use, and maintenance of buildings in the
long-term leases that they granted in the development of their estates in
the 18th and 19th centuries (Olsen, 1964). On the periphery of Chicago and
other American cities, developers used deed restrictions in the 19th and 20th
centuries to provide certainty to buyers in the face of rapid urban change
(Fogelson, 2005; King, 1986; Weiss, 1987). Upon completion of a subdivision designed by Frederick Law Olmsted, outside Chicago, the Riverside
Improvement Company offered plots of land for sale
only to an absolute settler who will agree to build immediately or within
one year from the time of purchase, a home costing at least $3,000, to
be located thirty feet back from the front of the lot line, which thirty feet
must be retained as an open court or dooryard.
(Riverside Improvement Company, 1871;
quoted by Monchow, 1928, p. 2)
The minimum cost of $3,000 meant that only well-to-do households were
admitted into the new community. Deed restrictions could also exclude certain classes of people directly and explicitly. Until they were struck down
as unconstitutional by the US Supreme Court in 1948 and by the Supreme
Court of Canada in 1950, clauses that prohibited the sale of property “to
any person of the Jewish, Hebrew, Semitic, Negro or coloured race or blood”
were commonplace in private covenants (Noble and Wolf v. Alley, 1950).
Race-based spatial segregation was an important goal in colonial cities (e.g., Rabinow, 1995, on French colonial planning). A similar attitude
prevailed in many municipalities in the US toward African Americans and
in both Canada and the US toward members of First Nations and Native
The Six Stories of Zoning
21
Americans, respectively, who were isolated in “reserves.” In cities, new public regulations translated prejudice into spatial distance. In a well-known
passage in the historiography of zoning, a land use lawyer from Los Angeles
declared in 1931:
It may sound foreign to our general ideas of the background of zoning,
yet racial hatred played no small part in bringing to the front some of the
early districting ordinances which were sustained by the United States
Supreme Court, thus giving us our first important zoning decisions.
(Pollard, 1931, p. 17)
The “early districting ordinances” Pollard had in mind were the so-called
Chinese laundry cases of San Francisco, Modesto, and other Northern California cities, in which the courts upheld the right of municipalities to ban
certain activities from certain parts of town and confine them to other parts.
The fact that most laundries were operated by Chinese immigrants made
it possible to hide racist attitudes toward this minority behind a discourse
on dangers and nuisances. Some municipal leaders, especially in southern
states, did not feel the need to hide their prejudice at all. Their land use
ordinances spelled out explicitly that certain areas were reserved for certain
people (Silver, 1991).
When racial zoning was declared unconstitutional, in 1917, other means
of keeping the races apart—public infrastructure spending, urban renewal
schemes, public housing provision, building codes, real estate and banking
practices, and so on—were used to great effect. Still, throughout the US,
including in the Northeast, officials resorted to exclusionary zoning and
housing codes in order to make certain neighborhoods “safe” for their white,
middle-class residents (Danielson, 1976; Davidoff & Brooks, 1976). Minimum thresholds for the cost of homes, as used by developers in Olmsted’s
days, have been complemented by municipally imposed minimum standards
for lot size and/or for floor area (Boudreaux, 2016). Such standards still
exist, but they are being challenged in the face of a crisis of housing affordability. Likewise, decades of exclusionary zoning have perpetuated class- and
race-based segregation (Rothwell & Massey, 2009, 2010), but planners in
some cities are now using zoning to the opposite effect, that is, to promote
social inclusion rather than exclusion. (See Cassola, this volume.)
Story 3: “Money”
Rapid change in the industrial city, in particular under the influence of new
construction and transportation technology, increased the need to preserve
the value of private real estate in the face of new development, to protect the
tax base of municipalities, and to rationalize public investment in infrastructure. Zoning was promoted and diffused as an answer to those three needs.
In the US, municipal officials focused on two building types in particular:
22 Raphaël Fischler
the single-family home and the office skyscraper. Because of its direct impact
on property values, zoning remains dependent for its successful application on planners and developers striking a mutually beneficial compromise
between government intervention and market freedom.
The defining element of the North American suburb is the single-family
home (Fishman, 1987). It is the most important financial asset of many
households as well as a source of social identity and standing. Protecting the
value of that financial and social capital has been one of the most important goals of zoning (Levine, 2005). Like developers protecting the value
of the properties they put up for sale, municipalities where homeowners
were a major political constituency (primarily but not exclusively suburban
municipalities) soon adopted public land use regulations to the same effect
(Fischel, 2001a, 2001b). Westmount, an upper-class suburb of Montréal,
reserved part of its territory for detached and semidetached homes in 1897.
By 1909, it had a full set of land use controls, with all the elements of a
modern zoning code: the city was divided into several districts, each with
its designated land uses and housing types and with its standards for building type, height, land coverage, and setbacks (Fischler, 2017). It even had
subjected multifamily housing development to density limits by means of the
floor area ratio (FAR).4
Suburban municipalities in the US made similar efforts to protect home
areas. In 1916, the city council of Berkeley, California, created a districting scheme to separate different types of buildings and different activities,
based on a hierarchy of land uses with the suburban house at its apex (Perin,
1977). “Class I” districts were defined as “those portions of the City of
Berkeley in which no building or structure shall be erected, constructed or
maintained which shall be used for or designed or intended to be used for
any purpose other than that of a single family dwelling” (City of Berkeley,
1916, p. l). Central cities introduced similar protections, though less comprehensively. Montréal created residential streets in 1904, residential zones
(with multiple streets) in 1909, and residential zones for single-family homes
(detached, semidetached, and attached) in 1910 (Fischler, 2014). New York
City tried at first to create and maintain “suburban conditions of light and
air” by means of standards on building height, land coverage and setbacks
(New York City Board of Estimate and Apportionment, 1916, p. 27). It
recognized single-family home areas explicitly only in 1938 (Plunz, 1993).
When New York City officials started work on the city’s famous 1916
zoning ordinance, their most urgent task was to protect the value of downtown real estate, not that of suburban real estate. Since the turn of the
century, property owners had been complaining against the construction
of tall structures right next to their buildings, the consequent loss of access
to light and air in rental office space, and the resulting decline in property
values. Very large investments were at stake; pressure on city authorities was
strong to create new rules of the game, but so was opposition to government
meddling in private markets (Makielski, 1966; Revell, 1992; Toll, 1969).
The Six Stories of Zoning
23
Public action was precipitated in part by the threat of the Fifth Avenue Association to boycott garment manufacturers whose huge loft buildings and
immigrant workers were invading the fashionable midtown area (another
example of overlap between the “Money” and “Identity” storylines). Merchants, hotel operators, and other businessmen did not at all appreciate the
proximity of tall industrial structures to their ornate buildings, and their
upper-class patrons did not enjoy rubbing shoulders with shabby, foreignsounding, socialist-leaning immigrants on local sidewalks. A weakening
real estate market that lessened the prospects of profits for developers also
helped overcome political opposition to government intervention. The result
of nearly two decades of agitation against unchecked commercial real estate
development was the first detailed ordinance with both use and bulk regulations in a large city on the continent (although not the first one overall, if
one considers the 1909 bylaw of Westmount).5
The creators of the 1916 ordinance also gave zoning its constitutional
legitimacy in carefully crafted legal arguments. That legitimacy rests on
the value of real estate in the political economy of the capitalist city.
Unlike expropriations of land for public purposes, zoning interventions
do not require compensation to owners for lost development opportunities, because they allegedly serve to protect the health, safety, and welfare
of the population. Since needs related to health, safety, and welfare cannot be said to vary from individual to individual, differential standards
imposed on owners according to the location of their property contradicted constitutional provisions for equal treatment under the law. To
legitimate unequal treatment (the application of unequal standards for
different properties), zoning pioneers argued, first, that the spatial sorting
of classes of people and of classes of buildings was a natural phenomenon, which municipal authorities could only acknowledge, and, second,
that dissimilar standards, although unwarranted from the point of view of
health and safety, could be legitimated from the point of view of injury to
property rights (Fischler, 1998b). As Edward Bassett, the legal mastermind
behind the zoning ordinance of 1916, explained in 1913, similar standards applied across the board would “interfere so seriously with existing
property values [in expensive locations] as to render them of doubtful
expediency and constitutionality” (New York City Board of Estimate and
Apportionment, 1913, p. 24).6
By stabilizing property values, and thereby securing the city’s tax base,
land use regulation became a means to promote the fiscal well-being of
municipalities (Fischler, 1998a; Randle, 1990). In addition, assigning specific land uses and development densities to different parts of the city became
useful in the planning of public infrastructure and facilities: the width of
streets, the grade of paving, the dimensions of water and sewer lines, the
number and size of schools, fire stations, and so on could all be tailored to
the demand that land use and density regulations suggest would be generated in different areas (Abeles, 1989).
24 Raphaël Fischler
Ensuring a delicate balance between the public interest and the return
on investment of developers and property owners remains a major concern today. Inclusionary zoning regulations—under which a number of
affordable housing units or their equivalent in fees are required to obtain a
development permit for a housing project (Schuetz, Meltzer, & Been, 2009;
Cassola, this volume)—and linkage-fee regulations—under which contributions must be made to a housing fund in order to obtain a permit for
commercial development (Andrew, 1988)—must be carefully calibrated to
achieve their goal of increasing the supply of affordable units without killing the real estate goose that lays the housing eggs. At the same time, the
reliance of municipalities on revenue from property taxes to fund public
services creates a bias in favor of densification in areas where density is
welcome and a bias against densification in areas where it is unwanted. In
the first case, the increase in tax revenue can be applied to municipal services that improve the quality of urban life. In the second case, the addition
of numerous households would impose an unwanted burden on municipal
services. In fiscal zoning, the practice of tailoring land use regulations to
desired fiscal outcomes, the storyline of “Money” once again overlaps with
that of “Identity.”
Story 4: “Beauty”
Building on earlier practices in the regulation of building heights and of
setbacks from the public right-of-way, planners developed new methods to
shape the physical environment of cities. Here, too, a dialogue between officials and their planners, on one hand, and developers and their architects,
on the other hand, has been a key feature of zoning. Innovations in the private sector have been diffused by zoning, while innovations in zoning have
promoted new practices in the real estate industry. Among those practices
are discretionary controls to evaluate design quality in urban and real estate
development.
New York City’s zoning code had a major impact on the city’s architecture
and skyline. In part, the impact was consciously willed; in part, it was an
unintended, although easily predictable, consequence. In the decade before
the adoption of the ordinance, architects such as Ernest Flagg (designer of
the Singer Tower of 1909) had started to promote the idea that a skyscraper
should not be a squat mass extending straight from the sidewalk to the clouds
but a narrow tower, set back on a wider base, and crowned with a decorative
top (Willis, 1993). The 1916 ordinance institutionalized this “best practice”
in the city and, from there, helped to diffuse it to the rest of the world in the
era of Art Deco Architecture.7 That said, the ziggurat-like shape of many
medium-height buildings in New York was not a desired effect of the ordinance, but it was an immediate consequence of its height standards. Above
a certain height, floors had to be set back progressively to allow the sun to
reach the middle of the street at a given angle. Similar impacts on built form
The Six Stories of Zoning
25
can be observed in Paris, where 18th- and 19th-century height standards
created continuous cornice lines along many streets and boulevards, along
with slanted or curved roof sections on the upper floors, to maintain building volumes within prescribed limits (Sutcliffe, 1993).
Designing the city skyline remains a concern today. In Washington, D.C.,
as in Paris, the notion of a horizontal city still prevails, and skyscrapers
(with one sorry exception in Paris) were banished to suburban office hubs.
In Montréal, regulations shape the skyscrapers of the central business district to form an artificial hill that is not allowed to grow taller than the
adjacent natural hill of Mount Royal. View corridors also prevent buildings
from blocking significant views to and from Mount Royal. Montréal height
regulations also contain minimum requirements, as opposed to upper limits,
in order to give proper framing to public streets and squares. Such regulations, in fact, have existed since the late 19th century, when street-widening
schemes were accompanied by bylaws requiring a minimum building height
and quality. Here the storylines of “Money” and “Beauty” overlap: the
bylaws aimed not only to ensure that the increase in tax base would compensate for the cost of expropriations but also to create a more attractive
streetscape (Gilliland, 2002).
Zoning has also been used as a tool of urban design in suburbia. Olmsted
envisioned the bourgeois suburb as a community of villas set in landscaped
grounds, along curvilinear streets, with generous front yards and with common pleasure grounds where the topography was more picturesque and less
suitable for construction. On front lawns grew flowering shrubs and beautiful trees that gave the area a semirural aesthetic and served to hide an ugly
façade in case an owner had less taste than money. The suburb was a collective garden in which domesticity could flourish.
Municipal zoning regulations were adopted in the 20th century to create and maintain that aesthetic and moral order on a large scale. Because
zoning was supposed to protect the health, safety, morals, and general welfare of the community, it was hard at first to make aesthetic considerations
pass the threshold of judicial or even social acceptability. Over time, however, the contribution of urban design to property values and to community
feeling—that is, the overlap of the storylines of “Beauty,” “Money” and
“Identity”—helped to overcome resistance.
In the 1910s and 1920s, planners borrowed the practice used in upscale
subdivisions to let design review committees evaluate private proposals for
their architectural merit. Westmount set up an Architecture Advisory Committee in 1916, a first in Canada and perhaps in North America; Bryce,
1990). Public design review commissions typically play an advisory role and
issue findings on the basis of qualitative norms that leave room for interpretation (Punter, 1999). Such discretionary controls are therefore not without
their critics (Scheer & Preiser, 1994).
Concern with aesthetic quality also expressed “The Rising Demand for
Quality in Housing Environment,” as Clarence Perry put it in his famous
26 Raphaël Fischler
monograph on the neighborhood unit (Perry, 1974/1929, p. 31). A similar
concern with the quality of the public realm is at the core of the “form-based
code,” the approach to zoning that New Urbanists have been promoting
since the 1990s in response to traditional zoning (Katz, 1994). Whereas
Euclidean zoning was driven by the differentiation and segregation of land
uses and housing types, the new approach is based on the differentiation
of morphological types. Early-20th-century regulators were concerned with
warding off nuisances and preserving property values, while New Urbanists
aim, at least equally as much, to create an attractive community environment, both physically and socially, and whereas much zoning, still today,
aims to segregate activities and people, the alternative is being proposed as
an opportunity, if not an attempt, to bring different uses and different people
together (Parolek, Parolek, & Crawford, 2008).
Story 5: “Nature”
Industrialization pushed planners and designers to find ways of integrating
nature in urban settings. Zoning contributed to that search mostly at the
urban–rural fringe, at first by helping to create verdant suburbs and, more
recently, by helping to create natural reserves. But the rise of ecological
thinking and the search for environmental sustainability have given urban
zoning, too, a “green” dimension.
The integration of nature into the built environment is an old quest;
industrialization only intensified the desire to marry city and country. The
residential suburb and the urban park actualized this union as places where
people could find respite from the nuisances and stresses of the industrial
city and seek spiritual uplift as well as physical regeneration (Olmsted,
1997/1868). Zoning enabled municipal officials to set aside land for public
parks ahead of development, and, as discussed earlier, helped them maintain
the semirural nature of suburbia.
In the 1960s, under the influence of new ecological thinking, but echoing
Olmsted’s systemic view of the role and place of greenery in the city, planners started approaching the city as part of the larger ecosystem and as an
ecosystem in and of itself (Eisenman, 2013). In practice, they started addressing the ecological performance of built environments through standards
such as the “impervious surface ratio,” which regulates water absorption
in the ground (Kendig, 1980). Since then, zoning has also been put to use in
coastal management, alternative energy generation, urban agriculture, and
climate change mitigation and adaptation (see Watson, this volume). Climate change, in particular, is raising issues of resiliency, especially in coastal
zones (Beatly, 2009) and is creating an overlap in the storylines of “Danger”
and “Nature.”
Zoning regulations can contribute to environmental sustainability by
removing obstacles to the use of new techniques or by providing incentives
to accelerate their application (Jepson & Haines, 2014). But much zoning
The Six Stories of Zoning
27
activity related to environmental preservation and climate change adaptation takes the form of constraints or prohibitions on development and, more
important, shows the importance of higher-level mandates to push local zoning forward (see Linkous, this volume). In Ontario, the federal government
established the Ottawa greenbelt in the 1950s through the National Capital
Commission, while the provincial government put the Toronto greenbelt in
place in the 2000s through its Ministry of Municipal Affairs and Housing
(Amati & Taylor, 2010). In Québec, the provincial government instituted
agricultural zoning in the late 1970s, forcing municipalities to identify
valuable agricultural land in their zoning maps as areas off-limit to urban
development (Fischler & Wolfe, 2012). The Ontario government and the
Montreal Metropolitan Community also imposed minimum density requirements, especially for transit corridors, in the greater Toronto and greater
Montréal regions, respectively (Ontario, 2006; Communauté métropolitaine de Montréal, 2012). Growth boundaries and state mandates for local
zoning and permitting have also been enforced in Oregon, where Portland
has emerged as the poster child of good planning (Abbott, Howe, & Adler,
1994; Ozawa, 2004), and in Florida, Maryland, and other US states where
smart growth principles are being applied (Burchell, Listokin, & Galley,
2000; Ingram, Carbonnel, Hong, & Flint, 2009).
Story 6: “Power”
Zoning is a contentious political issue. Its proponents had to fight hard to
make state intervention in real estate development accepted by the industry
and by the courts. They were successful, in part, because they gave property
owners and developers an important say in the design and implementation
of zoning ordinances and provided them with mechanisms to lessen the burden of regulation. Other interest groups joined the fray as well in an effort
to democratize decision making.
Municipalities receive their powers from higher-level governments (in federal systems, the state or the province); this devolution of power come with
conditions relative to democratic procedures and due process. Municipal
laws and charters thus subject the adoption of plans and zoning regulations
to requirements such as the use of three readings in public meetings of the
city council and the inclusion of mechanisms for public information and
consultation. In the 20th century, zoning was strongly affected by the politics of good governance and of local control. Its diffusion in North America
was propelled by the Reform Movement for clean, efficient government
(Scott, 1971; Wolfe, 1994).
Among the powers given to municipalities is the power to grant permits.
The permitting system initially served to control the location of taverns,
slaughterhouses, oil storage facilities, and other potential sources of nuisance or danger, and permits were initially granted by the city council
(Fischler, 2007). But as the size of cities grew and the number of applications
28 Raphaël Fischler
increased, unelected officials were granted authority to deliver permits. One
key issue in this delegation of power was the margin of discretion given to
these officials in their handling of requests. In the US, a lack of trust in municipal officers in the late 19th and early 20th centuries (fed by the well-publicized
problems of machine politics) pushed reformers to institute quantitative standards that left little room for interpretation and shaped the land use regulation
system as a whole in ways that limited discretion on the part of planners
(Fischler, 2000; Hirt, 2014). Discretionary controls, which were prevalent in
the UK, did eventually find a place in North American zoning, especially in the
1960s and later, when a class of better-trained planners entered municipal
administrations.
The use of specification standards (setbacks of so many feet, wall thicknesses of so many inches) limited the room for discretion. But not all
regulations could be designed with such unambiguous norms. Officials
therefore typically relied on two sources of information outside of regulations to pass judgment: they questioned neighboring property owners to see
what objections were raised against projects that could potentially cause
nuisances and they used technical expertise in matters of construction.
Property owners’ input was considered not only when the municipality
wanted to adopt a new bylaw or was considering a request for a development permit. Owners could also petition the city to pass a regulation to
protect their interests, for example, by designating their block as “residential” in nature and therefore off-limits to apartment buildings, stores, and
so on (Veiller, 1916). In addition, applicants for development permits were
given the right to claim hardship from existing regulations and to petition a
board of appeals for exemptions from specific standards. This made sense:
owners of lots where standards do not allow for adequate development and
profitability must be entitled to a partial waiver of regulations to enable
them to put their property to good use; otherwise, the regulation would
amount to a taking that deserves compensation. This legal “safety valve”
has, of course, been exploited very eagerly by developers who have claimed
hardship in ways and in numbers zoning pioneers did not predict (Bassett,
1923). Variances were supposed to be exceptional, but in some cities and/
or in some periods, they become fairly normal. Developers who otherwise
appreciate the contribution of zoning to lessening risk in real estate investment like the variance as a means to achieve greater margins of profit under
relaxed rules. Planners who otherwise legitimate zoning as a set of fair rules
of the game like the variance for the opportunity it affords them to bargain
with developers in the hopes of obtaining certain public benefits. Because
processes to obtain variances require time and expertise, they favor players
with more financial and social capital (Fischer, Stahl, & Baird-Zars, 2018).
While citizen participation in the early years of zoning was generally limited to input by property owners, it also entailed the intervention of elite
community groups devoted to good government, high-quality design, historic preservation, and such causes. One of the oldest and best known is
The Six Stories of Zoning
29
New York’s Municipal Arts Society, which was founded in 1893 (Gilmartin,
1995). The formal scope of citizen participation in zoning has broadened
over the past decades. Planning laws require that for major zoning changes
(defined as changes that affect whole districts or as changes that affect large
projects), municipalities hold public hearings, hearings at which all citizens can voice their concerns (see Stahl, this volume, for an illustration of
uneven application in New York City). Some cities have instituted arm’slength bodies to run these public hearings and report citizens’ objections
and recommendations. Montréal, for instance, created the Office de consultation publique de Montréal, whose staff, with expertise in urban planning
and/or public consultation, prepare and present relevant information, hear
testimonies, and submit their findings to the Executive Committee of City
Council (Aubin & Bornstein, 2012). Requirements for public participation
in Québec planning law are modest (only one public hearing is compulsory
in most cases), but the law grants neighbors of zones adjacent to where a
zoning change is being proposed the right to call a referendum and, if they
garner the majority of the vote, the power to stop the change from happening.8 Referenda on zoning changes and citizen initiatives to request that
­authorities make such changes have been allowed in some US states, although
their legal status has been questioned (Callies, Neuffer, & Caliboso, 1991;
Caves, 1992).
The “Power” storyline of zoning shows the gap that exists between the
theory of zoning and its actual practice. Functionally, zoning is one tool
among others to implement the broader planning vision conveyed through
comprehensive or strategic plans. In reality, much zoning is done with little
planning (see Baird-Zars, this volume). Neither suburban Westmount nor
metropolitan New York City adopted master plans before passing their
respective zoning regulations.9 Zoning is also supposed to be comprehensive in scope; its legitimacy rests on the adoption of a citywide view and the
analysis of broad patterns of development. In practice, much zoning activity
concerns very small areas, sometimes even single plots of land, and occurs
in response to requests from developers to change zoning regulations for
a given area and or to waive existing requirements for a specific project.
Only very rarely do municipalities engage in proactive and/or large-scale
revisions of their zoning code. Finally, zoning provides opportunities for the
exercise of participatory democracy. Too often, however, the process reflects
the unbalance of power between pro-development forces and the grassroots.
Conclusion
The six stories sketched out in this chapter testify to the multiplication of
zoning norms and standards to shape urban development in pursuit of an
ever-expanding array of objectives. Constitutionally, zoning is an application of police power to preserve the health, safety, morals, and welfare of
the community in order to manage real estate development. In its earliest
30 Raphaël Fischler
forms, zoning was adopted to lessen the loss of life and limit losses to property. Thus, the first storyline sketched out earlier pertains to health and
safety. Over time, zoning was chosen to reach positive outcomes as well,
be they desired effects for a single group obtaining privileges at the expense
of others or policy goals that benefit the population at large. Hence, other
storylines tend mostly to relate to the “public welfare,” a vague and variable concept. As Ernst Freund, the foremost authority on police power
at the turn of the 20th century, recognized, police power is “the expression of social, economic and political conditions” and is therefore “elastic,
i.e., capable of development” (1904, p. 3). Its elasticity comes principally
from the fact that understandings of the general welfare are in constant
evolution. Zoning, Lawrence Veiller agreed, was destined to be ultimately
“sustained, not on the basis of public health nor public safety, but on that
novel, broad and sweeping ground, ‘the general welfare.’ This,” he concluded, “opens a door a crack, which may be opened very wide” (1916,
p. 153).
To a large extent, the story of zoning is of a gradual opening of the door
to new considerations. As urban problems change and aspirations evolve,
new concerns arise that planners try to tackle, in part, by means of land
use regulations. Consequently, even in places known for their preference
for market-based solutions to collective problems, zoning codes and other
regulations impose an “invisible web” on the design of our cities (Lai,
1988), a “hidden language” expressing who we are and what we want in
our built environment (Ben-Joseph, 2005). Still, public control of the use
of land, as any state intervention in private affairs, is a politically fraught
practice. Zoning codes are adopted by elected representatives and applied
for the most part by unelected officials. Politicians are often accused of
acting in ways contrary to the public interest and of being beholden to
special interests. The history of zoning bears out the fact that municipal
officials have often acted to protect the interests of property owners and
developers and, in particular in the US, of homeowners (Fischel, 2001a).
Planners, on the other hand, are often faulted for wielding a power that
should not be theirs, for using the permitting process to impose undue
constraints on individual or corporate freedom (Biber & Ruhl, 2014).
Environmental organization and other interest groups also wield power
in the regulatory process; the “zoning game” in the past decades has
definitely been played by an increasing array of stakeholders acting in
varying pro-growth, antigrowth or smart growth coalitions (Babcock,
1966; Whittemore, 2012).
Despite the multiplication of actors involved, the politics of zoning are,
to a large extent, a search for balance between public and private interests.
At its heart, the story of zoning is also the story of constantly evolving
accommodations between regulators and developers. Both need each other:
regulators need developers to answer the demand for shelter and commercial
The Six Stories of Zoning
31
and industrial facilities; developers need regulators of one sort or another
(government planners or lawyers and judges) to reduce the friction of proximity in space, to mediate conflicts among users of land, to lessen the risk
of investment in real estate and to ensure adequate levels public service and
infrastructure. The interaction of regulators and builders is symbiotic: innovations in the marketplace prompt innovations in public policy, and new
rules create or diffuse new ways of doing. Incentive zoning exemplifies this
mutual dependence and mutual interaction.
“Land development in urban areas,” one critic of zoning noted, “is one of
the most regulated human activities in the United States” (Ellickson, 1973,
p. 682). Still, despite its ubiquity and complexity, zoning does not radically
alter urban development processes. Rather, zoning reinforces or mitigates
patterns and trends, lessens externalities associated with urban life, and
brings some coherence to public decision making. One may therefore wonder, as the authors of a recent survey of zoning in Organisation for Economic
Co-operation and Development (OECD) countries do, “whether statutory
instruments like zoning, which can only restrict new or changing land uses,
are able to meet the growing needs and ambitions of spatial planning and
its interconnected sectoral challenges” (OECD, 2017, p. 49). Clearly, zoning
may only be seen as one instrument of public policy among others. There is
little it can do on its own to right the wrongs of contemporary urban development. At the same time, its crucial role in a key sector of the economy
and its inherent flexibility make it extremely valuable and useful to planners.
Although John Reps sang a “Requiem for Zoning” many years ago (Reps,
1964), the story of zoning is far from over.
Notes
1. A comprehensive review of all forms and motifs of zoning is impossible in this
short chapter. Some relevant topics, historic preservation, for instance, will not be
discussed; others, such as environmental sustainability, will be treated only succinctly. Other forms of land use regulation, such as subdivision codes, will not be
examined either.
2. Montréal’s incorporation of 1834 was rescinded; a new charter was adopted, and
a bona fide municipal government instituted in 1840.
3. This characterization of the changing geographies of French and Southern European cities and of North American cities is, of course, a gross oversimplification;
in both regions, patterns were much more complicated (Corbin Sies, 2001; Harris
& Lewis, 2001).
4. The first residential zone was established in Bylaw no. 75: “Respecting the erection of buildings above the level of Montrose Avenue and to Regulate the class
of houses to be erected in that locality,” March 1, 1897 (City of Westmount
Archives). Use of the floor area ratio (FAR) came two years later, with a bylaw
limiting the floor area of multifamily housing to the area of the lot. The idea of
FAR was raised in New York City during discussions leading to the adoption of
the 1916 zoning resolution, but it was not put on the books until 1961 (Fischler,
1998a). The FAR regulation was left outside Bylaw 190, “Building by-law of
32 Raphaël Fischler
1909, January 4, 1909 (City of Westmount Archives), as were regulations on
building lines, which were part of the homologated street plan.
5. The first spatially comprehensive zoning code in a large American city was that
of Los Angeles. Adopted in 1908, the ordinance divided the whole municipal
territory into residential and industrial zones. But it did not contain the spatial
standards on building volumes, land coverage, and setbacks that Westmount and
New York City adopted in the following year and was therefore not comprehensive in that respect.
6. The principle of differentiated regulation by means of unequal standards was first
accepted by the US Supreme courts in 1909, in Welch v. Swasey, a case on the two
height districts that Boston had instituted in 1904 (Holleran, 1998).
7. In 1961, a thoroughly revised zoning code took the monolithic tower on a plaza,
as then proposed by Mies van der Rohe and other Modernist architects, as the new
model to emulate (Whyte, 1988, Ch. 16).
8. Because these provisions of planning law are often used in NIMBY (Not In My
Back Yard) fights, the Québec government has recently curtailed their application. Municipalities may now declare some areas where significant redevelopment
is expected to occur as areas where these provisions do not apply but where all
projects must be subject to public consultation.
9. In New York City, the intent had been to set up a Planning Commission at the
same time as the zoning ordinance was being adopted; in fact, the city’s Department of City Planning was created only in 1938, and the city’s first Plan for New
York City was adopted in 1969 (Scott, 1971; Fischler, 2018). In Montréal, a planning department was not put in place until 1941, the first Plan d’urbanisme was
not produced until 1992, when the vast assortment of area-specific zoning regulations were finally consolidated into a comprehensive zoning code (Fischler, 2014).
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