State and Regional Land Use Planning: The Evolving Role of the State

By Nicholas, James C. | St. John's Law Review, Fall 1999 | Go to article overview

State and Regional Land Use Planning: The Evolving Role of the State


Nicholas, James C., St. John's Law Review


I. THE PRE-QUIET REVOLUTION ROLE OF THE STATE

A. The Traditional Structure of Land Development Regulatory Authority

Although the states had full authority to regulate the development and use of land, the traditional approach was to delegate such regulatory authority to local jurisdictions.1 Land use control was believed to be a neighborhood issue, making local governments best suited for such issues.2 Many local jurisdictions, however, have ignored this regulatory authority.3

Regulating development through planning is thought to be a relatively new concept, however, today's urban planning has been practiced in the United States since before the founding of the republic.4 Planning has historically been perceived as a luxury, however, as American villages grew into large cities, the necessity of planning became readily apparent. New York City, being the first to experience urban problems, enacted legislation concerning tenements in 1867.5 Throughout the second half of the nineteenth century, larger cities followed New York's example by enacting sanitation and building codes for new construction.6 These regulations focused on building construction and infrastructure.7 These regulations failed to recognize location and use as important construction issues. Such concerns would not be addressed until 1916 when New York City adopted its zoning ordinance.8 Unlike prior enactments, the ordinance addressed the type, location, and use of a building to be constructed 9 With the adoption of the New York City zoning ordinance, land development control in America underwent a significant evolution.10 Zoning marked the beginning of the end for the laissez-faire approach to urban planning. Prior to zoning, community plans simply expressed the desires of the community, however, the individual property owner was free to reject these desires. Community plans would now be expressed in the negative through zoning.11

The Fourteenth Census of the United States, taken in 1920, found that approximately fifty-one percent of the population lived in urban areas.12 Since then, the urban percentage has risen to 75.2 percent.13 As Americans urbanized, they began living closer to one another, following industrial rather than agricultural pursuits. Land and land use concerns naturally turned from a frontier-agricultural setting to an urban-industrial setting.

These developments led the United States Supreme Court to issue three monumental decisions in the 1920s. The Court held in 1926 that the regulation of land use per se was constitutional.14 In 1928, the Court found that the authority to undertake land use regulation was itself subject to restrictions and limitations.15 The Court also applied the constitutional prohibition against the taking of private property without just compensation to land use regulation.16 The urban-industrial setting presented new problems concerning public health, safety, and welfare. The response to these concerns came in the form of land use regulations.

As individual states became more urbanized, land development and use regulations became acceptable methods for resolving conflicts. Metropolitan areas, such as New York, Boston, Cleveland, and Los Angeles, were the first to face the land use controversies that accompanied urban growth. At that time, local authority over land use control was conducted on a case by case and piecemeal basis. The result was a hodgepodge of developmental regulatory policies, programs, ordinances, and resolutions that numbed the mind and destroyed coherent approaches to community planning. This confusing situation led to the Standard State Zoning Enabling Act (SSZEA).17

B. The Standard State Zoning Enabling Act of 1924

As land development regulations spread, then Secretary of Commerce Herbert Hoover appointed an advisory committee to develop a standard state zoning enabling act. The objective of the SSZEA was to provide order to this rapidly evolving practice. …

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