Academic journal article
By Clowney, Stephen
The Yale Law Journal , Vol. 115, No. 1
NOTE CONTENTS INTRODUCTION I. OVERVIEW A. Literature Review B. The Justifications for Zoning in New Haven 1. Ideals of the City Beautiful Movement 2. Economic Concerns 3. Nuisance II. PATTERNS OF LAND USE A. The Case for Cappel: Westville 1. Overall Patterns of Land Use 2. Building Heights and Setbacks 3. Sideyards 4. Coordination Failures 5. Summary B. Mixed Messages: City Point 1. Overall Patterns of Land Use 2. Building Heights and Setbacks 3. Sideyards 4. Summary C. Coordination Failures: Upper Hill 1. Overall Patterns of Land Use 2. Building Heights and Setbacks 3. Sideyards 4. Summary D. Coordination Failures: Wooster Square 1. Overall Patterns of Land Use 2. Building Heights and Setbacks 3. Sideyards 4. Change Over Time 5. Summary III. WHY ZONING MATTERS: A HISTORY OF COURT STREET CONCLUSION APPENDIX
Land use matters. Although stories about street grids, subdivision regulations, and building codes rarely make the front page, land use, in its broadest sense, shapes the most fundamental of human activities: the way we build and structure our communities. An ongoing debate exists both in the legal academy and in city halls about whether markets or governments are better able to coordinate land use and promote rational development. (1) Much of this heated intellectual and political discussion has focused on zoning.
This Note strives to forge a richer understanding of land use regulation by closely examining the successes and failures of an unzoned legal regime. To accomplish this goal, this Note assesses and critiques Andrew Cappel's A Walk Along Willow: Patterns of Land Use Coordination in Pre-Zoning New Haven (1870-1926). (2) Almost fifteen years after it was first published, Cappel's piece remains arguably the finest small-scale, block-by-block study of an unregulated land use system. (3) In large part, the influence of A Walk Along Willow endures because it is one of the few studies to provide "empirically defended demonstrations that free land markets achieve economically efficient, politically acceptable, and socially tolerable outcomes." (4) In A Walk Along Willow, Cappel systematically measured the building setbacks, sideyards, heights, and lot coverage throughout one New Haven neighborhood, and concluded that the city's residents fashioned a complex and orderly land use system without the aid of government regulation. (5) Cappel also found that (1) nuisance law effectively controlled noxious industries; (6) (2) zoning regulations merely codified preexisting land use patterns; (7) and (3) social norms govern many aspects of urban development. (8) All of these conclusions pose serious questions about the necessity and effectiveness of zoning and other governmental land use regulations.
A Walk Along Willow is deservedly one of the most cited pieces in the land use literature (9) and remains a staple in popular law school textbooks. (10) Despite Cappel's contributions to the debate over zoning, his student note in The Yale Law Journal is heavily flawed. As this Note demonstrates, Cappel's decision to examine a single seventeen-block area in northeast New Haven undercuts the significance of his findings. Cappel argued that New Haven was representative of the "medium-sized cities that warmly embraced zoning during the 1920's," (11) and that New Haven's Willow-Canner neighborhood was "representative of the type of areas open to development in the post-1870 years." (12) Arguably, however, the "Willow-Canner strip" was not typical even of New Haven, let alone most American urban centers.
First, by any reckoning, this area was notably more prosperous than other, more blue-collar sections of the city. New Haven historian Douglas Rae described the area surrounding Willow Street as "the most desirable residential neighborhood in the early twentieth-century city," (13) and city planners Cass Gilbert and Frederick Law Olmsted, writing in 1910, labeled the area as New Haven's "high-class northern residential district. …