A Note on the Origins of Zoning Law and What Lessons to Learn for the Planning Reform Act

Planning legislation throughout history has always lagged a few steps behind planning practice. Planning legislation is vastly different around the world reflecting different local government legal foundations; and in particular the expression of the ‘police power’ on nuisance which all planning/zoning legislation is based. In fact it is very rare for the term ‘zoning’ to appear is legislation, as it is a process of plan production, not a foundational legal concept.

What I want to do in this article is provide a brief overview of the development of international zoning/subdivision legislation (Including in the UK) and then use this as foundation for a later article to inform the key building blocks of an English planning act.

France and Italy in the 1860s had enacted early laws to seperate houses from factories.

Although Italy following unification enacted planning legislation in 1876, during a brief period of national renewal, bureaucratic reform and urban growth (the ‘Trasformismo ‘ period. ) it was not internationally influential, as town planning in Italy for decades followed what has been called a ‘gardeners’ approach laying out streets and squares geometrically without conceptions of zoning or social facilities. Like the framework of laws used to enable Hausmann’s reimagining of Paris the prototypical planning legislation before the 1870s was based around reorgansiation of streets and powers to acquire land to do this rather than any concept of comprehensive planning to serve the full range of needs of the city.

Far more influential was Prussia. Since the 18th Century it had municipal legislation enabling control of building lines. Until  Building Line Act (Fluchtliniengesetz) of 1875 there was no legislation requiring lines to conform to a plan. Indeed the first modern plan Hobrecht Plan Bebauungsplan der Umgebungen Berlins” (Binding Land-Use Plan for the Environs of Berlin) was resolved in 1862 9 years before based on the 18th Century legislation It was similar to Hausmann’s plan for Paris (1853-1870) but conceptually went beyond it. Hobrecht was a geodicist (land surveyor )who had just extended his formation with a Civil Engineer examination on transportation planning. This gave planning a wider range of objectives than simply the grand control based reorganization of cities to meet police objectives. It was the first plan I can find that included technical calculations on population size for the city and each district and how citizens could get from A to B.

The control here was solely concerning building and street lines, with powers for compulsory purchase and compensation.

Paragraph 1. The street and building base line set by common council agreeing with the municipality for the laying out or alteration of streets and squares in cities and country places with respect to their alteration, according to the public need, are to be established with the consent of the local police authorities.

This legal basis was similar to that for Haussman’s expansion of Paris. This basis was narrow but critically it gave a basis for public planning and then legislation caught up with innovations and practices introduced in municipal plans.

Critically, once a building and street lines was established a developer needed access to it and the infrastructure networks attached to the street. A field for example had then to be subdivided into plots. Over time this led to a greater alignment of planning law with building, taxation and property law.

Key to the development of ideas of urban planning was Reinhard Baumeister, a rail engineer turned city planner after winning an 1872 competition for an urban extension of Mannheim. Manneim was interesting in that its core was not medieval but a result of 17th Century grid masterplanning, and Baumesiters masterplan was to extend this in a distorted grid to created pcituresque vistas and public spaces. His

‘Town Expansions Considered with Respect to Technology, Building Code and Economy” of 1876

was the first modern planning text and used as the first textbook by the earliest planning schools in Germany.

Hence planning was founded on technical foundations. The primary drivers at this time were health, public safety and technical concerns. There was an obsession with efficient sewerage. Baumeister also wrote the first textbook on sewage engineering. With the prevalence of fires in overcrowded cities regulations were also concerned with fire prevention and fire fighting. For example in Berlin the Holbrecht Plan controlled building heights, limited to ladder lengths and perimeter blocks were dictated by requirements for access by and turning of fire tenders.

Zoning was at this stage concerned primarily about technical efficiency and health, rather than, as it would become in the States, about maximising property values, efficiency of real estate development and social and racial segregation. Baumeister observed that industries tend to naturally cluster together in cities and he argued that this clustering should be reinforced through zoning areas into three classes: industry and wholesaling plus the homes of workers; trades which require direct contact with the public plus the homes of workers; and homes whose owners have no trade and different occupations. Hence zoning was about typology and form, not as was later termed Euclidian Zoning, ruthless segregation of homes and workplaces.

Baumeister and other Prussian Planners were not just concerned with efficiency.

The historically trained artist turns naturally in contemplation to the past. He reconstructs in his imagination the admirable structures of antiquity, and delights in present picturesque examples of the middle ages, such as seen at Danzig, Lubeck and Nürnberg. When in a group of buildings, the lining private buildings are supported by a suitable structure of prominence as a focal objective, a pleasing street picture results…

Closely connected therewith, the aesthetic relation of architecture and vegetation must not be forgotten. In a great city, the surface of the earth should nowhere be left bare, but should always be treated in a naturalistic spirit. By means of trees, decorative gardens and grass plots, the effect of buildings can be greatly improved and embellished. Such elements may be employed most effectively when used to surround architectural groups with borders, backgrounds and in the spaces of vistas.

I note the concern with the picturesque, with beauty in Prussian planning writings preceded by a number of Years Camillo Sittes work which was not published until 1889. Similarly it was influential upon many visiting British and American planning thinkers, notably Raymond Unwin whose main contribution was to fuse the German and English landscape traditions.

It took some time for Prussian Planning Legislation to catch up with plans being produced and that in other German states such as Saxony soon over took it in terms of the form and nature of zoning legislation we know it today, such as control over building form and land use not just building lines.

Greatly influential was the 1891 Planning Act for Frankfurt am Main, its principles and legislation was widely copied. A charge it levied on land value uplift following zoning was also so successful it was widely copied.

Burgnesiter Franz Adickes took office in Frankfurt in 1891, had for many years sought approval in the Prussian Landtag for a comprehensive set of expropriation and land-use control powers which continually rejected his petitions. Finally, he gained permission to use these powers in his own city. His administration developed three acts that served as models for municipalities throughout Germany and ultimately abroad.

The three municipal acts were Zoning (1891), the Increment Tax (1903), and a plot redistribution scheme commonly
called the Lex Adickes (1902)

The 1891 Frankfurt Acts were a collaborative effort of Adickes and the advice of Baumeister. It was the first modern zoning legislation, allowing for control of use and built form and not just building lines. It was also the first to fuse planning, building and property law, around the concept of the lot/subdivision.

The act called for the city to be developed into two subsections: the inner city and the outer city.
The inner city, which included the medieval Altstadt, had been highly developed before zoning. The outer city was divided into three concentric zones with controls on floor area for each zone, higher on corner lots. The plan quite deliberately created a new port industrial quarter and associated (upwind) workers housing.

The increment tax was firstused in the German colonial settlement of Kiao Chau in China in 1898, it later spread to two cities in Saxony and was used in Frankfurt beginning in 1903. Essentially the tax levied a sum payable to the city computed on the gain to the owner that accrued from the transfer or sale of land. …. A basic tax of 2% was levied against every change of ownership. The amount due over and above the base tax was based upon a graduated scale. The success of this tax in Frankfurt was so overwhelming that, within one year after it was established, 652 other German communities had passed similar legislation. The idea was even discussed before a Sub-Committee of the United States Congress in 1909.

The Lex Adickes allowed the Community to expropriate land and redistribute it in accordance with a masterplan, as well as the ability for the community to retain 40% of land (what is technically known as an exaction rate), for roads open spaces, school and other community facilities. This arose on the model of land reform in many european countries where many small farms were considered uneconomic. The concept has been widely internationally copied, such as in Japan and the Philippines, where urban expansion was complicated by fragmented land ownership. The farmers gave fields and got back parcels.

Frankfurt remained an influential centre of planning thinking, well into the 1920s with the influential work of Ernst May and the invention of the Frankfurt Superblock, which I have written about here. There is even a world heritage site dedicated to estates from this period. Frankfurt used to a school for international visitors seeking to learn its planning ideas much like Singapore has today.

These principals did not fuse into a state wide law until the Prussian Housing Act of 28th March 1918. There never was a ‘reich’ wide planning law. Comprehensive planning laws had to wait post-war and because of the federalised nature of the new German constitution for a positive supreme court decision in the 1950s.

Before the first world war German ideas were hugely influential on emerging American Zoning laws, however they took from zoning what they liked and American zoning was very different as many historians of planning has commented on. Zoning became much more a tool of segregation of single land uses, so called ‘Euclidian zoning’, and much less of control of built form. It also became a tool of social tool of segregation by race and class, and of enabling rapid property development through proliferation of the grid form. In Germany by contrast lots were subservient to the plan, so you had irregular lots were roads around vistas converged on a single point. We can see this in many of Baumesiters Masterplan’s as here in Mannheim, which could almost have been produced by a contemporary urban designer.

The key legal innovation of American Planning legislation was that of a ‘zoning district’

the local legislative body may divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this act; and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair, or use of buildings, structures, or land. All such regulations shall
be uniform for each class or kind of buildings throughout each district, but the regulations in one district may differ from those in other districts.

Standard State Zoning Enabling Act 1926

With the disruption from World Wars German influence on and innovation in Planning waned. To large extent British innovation took over. I think the first national planning enabling acts were British.

The key legislative innovation in British Planning Acts before 1947 was that of the ‘Planning Scheme’ which is an overarching concept similar to that of a ‘local development document’ that is particularly useful. A ‘planning scheme’ could include the local plan, all neighborhood plans, and equivalents of design codes, masterplan and and local development orders.’

In essence all you need for a ‘zoning act’ is a five clause act.

  1. Define purpose of planning
  2. Enable planning schemes to meet clause 1 purposes
  3. Define development controllable through planning regulation
  4. Enable planning schemes to designate zoning districts for clause 1 purposes
  5. Provisions for preparing and updating planning schemes

Beyond this minimilist schema it is also desirable to have clauses which:

6. Enable CPO and infrastructure works to further planning schemes
7. Enabling development consent and plot subdivision regulation to determine conformity to and variation from planning schemes, including additional controls if required by overlay zones (e.g. flood risk areas, AONB etc.)
8. Enabling plot redistribution to fulfill planning schemes including transfer of land for roads, affordable housing, parks and community facilities.
9. A framework for Regional Planning (which should be clause 1).
10. Enabling taxation or charging of land value uplift capture

So a skeletal modern zoning law could be drawn up in 20 pages or so. It is so important to get it right that I think the draft Planning Reform Bill should be drawn up in two phases. The first a very simple skeletal law as sketched out here and a broad list of definitions and laws the new law would replace. This would lead to a period of intense consultation and discussion with an aim of broad consensus, followed by drawing up of a detailed law and accompanying outline of secondary legislation, and National Planning Handbook, in plain English on how to deliver the principles and practice of the new act. This should not be rushed. It will take a year. A rushed bill would lead to three years of botching and delay around new national policy and secondary legislation, as we had with the 2004 and 2011 acts. I note that concepts such as growth areas, protection areas, regeneration areas are concepts of implementation and policy not foundational legal concepts. That should appear as examples in a handbook, not on the face of the bill. Another lesson for getting it right is to ensure that planning law is tied in with property, building and land (cadastral) law and taxation around a common concept of the lot. The law should have a series of glossary definitions, which in most of the early legislation I have seen is upfont not hidden at the back.

The key lesson is planning good practice should proceed planning law. Joanna take a case study area, say Greater Cambridge, with more than one authority and well advanced with a new style plan for growth. It does not matter whether north, east, west and /or south options are chosen – as the same enabling legislation will be needed. the Ministry need to ask themselves how will the bill make best practice happen, how will the bill make good practice here happen.

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