In the zone #1 - Welcome to Euclid!
The Government’s considering “US-style” zoning. What does a 1926 US Supreme Court decision tell us about how those reforms may look? And why they might fail?
Changes are coming. And we’re told that:
“Central to the proposals are the introduction of a zonal planning system and the creation of special development zones, in which private developers will play an expanded role.”
And that:
“The model for that could be the “as-of-rights” system used in the US whereby a proposed development that complies with all applicable zoning codes does not require any special consideration from the authorities.”
Of course, we humble Brits can already grant planning permission for specified types of development within defined areas through Local Development Orders. But let’s put that aside for a few minutes, and dream of something grander.
If the Government really is after a US-style zoning system, what might that look like?
Well, as you may’ve heard, most US zoning is Euclidean. And not in a mathematical way. It’s named after what is now the city of Euclid in the suburbs of Cleveland, Ohio on the shores of Lake Erie - the “lakefront city”, and home of the mighty Euclid Panthers.
Why is Euclid’s zoning code so famous? Because of a landmark US Supreme Court case in 1926 called Village of Euclid, Ohio v. Ambler Realty Co. 272 U.S. 365 which established that the principle of zoning was supported by the US constitution.
Almost 100 years on, what does that case tell us about zoning in the US? And what challenges lie in store for those seeking to import it to the UK?
In 1922, an ordinance was adopted by the Euclid Village Council which established a comprehensive zoning plan for regulating and restricting the location of local trades, industries, houses and more or less everything else, as well as the size and height of any new buildings.
The ordinance was bad news for the Ambler Realty Company, which owned a 68 acre tract of land to the west of town which it was intending to develop for industrial uses (at a value of about $10,000 per acre). But the ordinance largely limited the use of its land to residential uses, and that dropped the land’s value – so Ambler claimed – to $2,500 per acre.
Ambler claimed that the ordinance contravened the Fourteenth Amendment to the US Constitution by depriving it of liberty and property without due process of law and denying it the equal protection of the law.
So what did Euclidean zoning actually look like in Euclid? Here are some of the features - and these are edited highlights. The full ordinance is pretty impenetrable.
1. Euclid was divided into 6 classes of use districts, three classes of height districts, and 4 classes of area districts - see the bamboozling plan above. Good luck trying to decode it.
2. The 6 use class areas give us a picture of life in early 1920s suburban Ohio (look out for water towers, wagon sheds and street car barns):
a. single family dwellings, public parks, water towers and reservoirs, suburban and interurban electric railway passenger stations and rights of way, and farming, non-commercial greenhouse nurseries and truck gardening.
b. Two-family dwellings.
c. Apartment houses, hotels, churches, schools, public libraries, museums, private clubs, community centre buildings, hospitals, sanatoriums, public playgrounds and recreation buildings, and a city hall and courthouse.
d. Banks, offices, studios, telephone exchanges, fire and police stations, restaurants, theatres and moving picture shows, retail stores and shops, sales offices, sample rooms, wholesale stores for hardware, drugs and groceries, stations for gasoline and oil (not exceeding 1,000 gallons storage) and for ice delivery, skating rinks and dance halls, electric substations, job and newspaper printing, public garages for motor vehicles, stables and wagon sheds (not exceeding five horses, wagons or motor trucks) and distributing stations for central store and commercial enterprises.
e. Billboards and advertising signs, warehouses, ice and ice cream manufacturing and cold storage plants, bottling works, milk bottling and central distribution stations, laundries, carpet cleaning, dry cleaning and dyeing establishments, blacksmith, horseshoeing, wagon and motor vehicle repair shops, freight stations, street car barns, stables and wagon sheds (for more than five horses, wagons or motor trucks), and wholesale produce markets and salesrooms.
f. Plants for sewage disposal and for producing gas, garbage and refuse incineration, scrap iron, junk, scrap paper and rag storage, aviation fields, cemeteries, crematories, penal and correctional institutions, insane and feeble minded institutions, storage of oil and gasoline (not to exceed 25,000 gallons), and manufacturing and industrial operations of any kind other than, and any public utility.
The use class areas were cumulative – so each one included the uses in the preceding areas. And in addition to the listed uses, the ordinance provided for “accessory uses” customarily incident to the principal use. An idea UK planners will be familiar with.
3. On height, the different classes were:
a. 2.5 stories / 35 feet;
b. 4 stories / 50 feet;
c. 80 feet.
There were exceptions for e.g. church spires and water tanks.
In the end, the US Supreme Court decided that zoning laws were constitutional - unluckily for the Ambler Realty Company - and were justified in the public interest in the light of rising urban population:
“Building zone laws are of modern origin. They began in this country about twenty-five years ago. Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities.”
Still, the Supreme Court was pretty scathing about the Euclid zoning ordinance itself:
“It is true that when, if ever, the provisions set forth in the ordinance in tedious and minute detail come to be concretely applied to particular premises […] some of them, or even many of them, may be found to be clearly arbitrary and unreasonable.”
Tedious, clearly arbitrary, unreasonable. Not a glowing endorsement.
Add to that inflexible. Say goodbye to reaching a decision on the merits of a scheme as a whole even when it departs from the plan. Euclidean zoning removes discretion and professional judgment from the equation. Indeed, that’s what our Government seems to like so much about it. But imagine a world where planning happens only by e.g. a combination of the Use Classes Order, Local Development Orders and the General Permitted Development Order - does that sound appealing? If so, you should enjoy Euclidean zoning. If not, it may be a long few years.
And it isn’t immediately clear how the perennial objective of de-lawyering the planning system would be furthered by putting the detailed control of development management onto an almost entirely detailed regulatory footing (as opposed to the mix of policy and judgment which prevails today).
And to sweeten the deal further, some of these zoning codes are looooooooong. New York’s Zoning Resolution was – wait for it – adopted back in 1961 (which makes it, heaven help us, even older than St Albans’ local plan!) and runs to several thousand pages.
That’s before we get anywhere near the practical ramifications of importing a system like this into the UK. How are resource-strapped local authorities going to set these zones in the first place? How will they be consulted on? How will objections be dealt with? How will they be examined? How will they be enforced? How will it be paid for? Remember, we’re 15+ years since the the Planning and Compulsory Purchase Act 2004, and some Councils still don’t have modern local plans.
Euclidean zoning is not the only way. We’ll look at some other approaches in future “in the zone” posts. But it is one of the most widespread approaches, particularly in America. And it is, to put it delicately, fraught with principled and practical challenges that would make a UK import extremely challenging.
So, if the Government really is after a flexible, dynamic and responsive system set free from the evils of that ever-bemoaned “red tape”… well, a system of Euclidean zoning is not where I’d start.
Where would I start? Call me unambitious (you wouldn’t be the first). But I’d re-read the PAS report on Local Development Orders and ask whether, given the flexibility and power that already exists in our system through the ability to ramp up the use of LDOs, we really do need to re-write our system to introduce formal zoning.
But that’s probably why I’d never make it in politics.
Stay well, #planoraks. And Go Panthers!
