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(Oct. 1924); Zahn v. City of Los Angeles, 274 U. S. 325 (1927); City of Aurora v. Burns, 149 N. E. 784 (1925); Appeal of Junge, 89 Pa. Superior Court 548 (March 1927); Hammond v. Springfield, 154 N. E. 82 (1926); Spencer-Sturla Co. v. Memphis, 290 S. W. 608 (1927); Kaplin v. Village of South Orange, 142 Atl. 135 (N. J. 1928).)
In Maryland, zoning ordinances, which would restrict the use to which the property may be put, have been held invalid insofar as such ordinances would exclude an ordinary retail store in a residential district. (Goldman v. City of Baltimore, 128 Atl. 50 (1925). However, since the Goldman decision, the Maryland Legislature has passed a municipality zoning enabling act and it is expected that by reason of this action the courts of that State will now uphold zoning as to the use to which the property may be put.
Courts uniformly uphold municipal zoning ordinances based on State enabling act.-The constitutionality of municipal zoning ordinances, based on an enabling act, has been upheld in every State where it has been tested except Maryland. In Missouri, where adverse zoning decisions were rendered when St. Louis endeavored to zone without a State enabling act (City of St. Louis v. Evraiff, 256 S. W. 489 (1923); State ex rel. Better Built Home & Mortgage Co. v. McKelvey, 256 S. W. 495 (1923); State ex. rel. Penrose Inv. Co. v. McKelvey, 256 S. W. 474 (1923), the supreme court of that State reversed itself after a satisfactory zoning enabling act was passed. (State ex rel. Cadillac Co. v. Christopher, 298 S. W. 720 (1927).)
According to the decision of the courts, municipal zoning ordinances require but two essentials: (1) A valid State enabling act for zoning (Opinion of Justices, 127 N. E. 525 (Mass., 1920); Clements v. McCabe, 177 N. W. 722 (Mich., 1920); Fitzhugh v. City of Jackson, 97 So. 190 (Miss., 1923)); and (2) reasonable regulations in the ordinance based on the health, safety, morals, and general welfare of the community. (Handy v. Village of South Orange, 118 Atl. 838 (N. J., 1922); People ex rel. Řoos v. Kaul, 302 Ill. 317 (1922); Willerup v. Village of Hempstead, 120 Misc. 485 (N. Y., 1923); State ex rel. Vernon v. Town of Westfield, 124 Atl. 248 (N. J., 1923); Municipal Gas Co., of Albany v. Nolan, 208 App. Div. 753 (N. Y., 1924); Lees v. Cohoes Motor Car Co., 122 Misc. 373 (N. Y. 1924).)
In 1926, the United States Supreme Court, in the case of Village of Euclid v. Amber Realty Co. (272 U. S. 365) (distinguished in Nectow v. City of Cambridge, et al., 277 U. S. 183 (1928)), upheld the validity of a zoning ordinance of Euclid, Ohio, which excluded all industrial establishments from a given area, i.e., regulated the use to which the property might be put, as well as fixed the height of buildings, the character of materials and methods of construction, and the adjoining area which must be left open. Since this opinion was rendered the United States Supreme Court also has upheld the supreme courts of the States of California and Minnesota in the Zahn and Beery cases, sustaining the zoning ordinances of Los Angeles and Minneapolis.
At present, the following States uphold the constitutionality of zoning: California, Colorado, Connecticut, Delaware, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, New York, North Dakota Ohio, Pennsylvania, Rhode Island, Tennessee, Washington, and Wisconsin. Many additional States have enabling acts and zoned cities, and doubltess their higher courts will uphold zoning when test cases reach them.
Planning Municipal planning enabling legislation.States have become increasingly concerned, in a legislative way, with city planning. Thirty-five States now have enabling acts in effect, covering city, town, village, borough, and county or regional planning. These acts may be divided into two groups: (1) General enabling acts, or acts authorizing planning in all cities, or cities of a certain class, towns, villages, boroughs, counties, or regions of the State and (2) special enabling acts, or those authorizing planning in only certain named cities or areas.
States having general planning enabling acts are: Arkansas, California, Colorado, Connecticut, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, Nevada, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, West Virginia, and Wisconsin. Those having special planning enabling acts are: Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Maine, Maryland, Massachusetts, New York, North Carolina, South Carolina, Tennessee, Vermont, and Virginia.
The standard city planning, enabling act. --Recognizing the importance of a guide that would serve as a basis for legislation to be enacted by the various States, the advisory committeee on city planning and zoning of the Department
of Commerce, after an exhaustive study, published, in March 1927, a standard city planning enabling act.
The text of the act covers the four general subjects which experience has shown to be a necessary part of planning legislation. These are: (1) The making of the city plan and the organization and powers of the city planning commission; (2) control of the layout of new subdivisions; (3) control of buildings within the lines of mapped streets; and (4) the regional plan and organization of the regional planning commission. The act contemplates a grant of authority by the State to municipalities and regions to avail themselves of the powers therein conferred. It is a permissive act and does not impose the creation of planning commissions upon municipalities or regions but leaves it optional with them, offering the opportunity to create such commissions if they deem it desirable.
Regarding the planning commission, the standard act provides for the creation of a body so constituted as to take a long-range view of the development of the municipality. It contemplates a commission of 9 members, 6 of whom shall hold no other municipal office, being thus free from the pressure of current municipal problems. Overlapping terms of 6 years, much longer than the terms of other city officials, including those of the council, are provided for, one vacancy occurring each year. This method insures, first, that the city administration during a single term shall be unable to appoint a majority of the members, and, second, that eventually the membership will represent planning experience of at least from 1 to 5 years, a desirable background for comprehensive planning.
The act provides that it shall be the function of the planning commission to prepare and adopt a master plan for the physical development of the municipality and adjacent areas. The matters to be covered by such a master plan may include streets, other types of public grounds, public utilities, and zoning. The adoption of the master plan rests with the commission; it does not require approval by the council.
After the commission shall have adopted the master plan or one or more of its major sections, future public improvements, such as streets, squares, parks, and public utilities, may not be authorized or carried out until their location, character, and extent have been submitted to the planning commission and their relation to the city plan carefully studied. If approved by the commission the council's approval may be by affirmative vote as required by the general law; if, however, these improvements are disapproved by the planning commission, the council still has power to overrule such disapproval, but only by a recorded vote of not less than two-thirds of its entire membership.
From these provisions, any improvement project coming before the council, must, if it involves planning problems, be submitted to the planning commission for study and approval or disapproval, but the council retains its essential legislative power, that is, the power to make the final decision.
In the adoption of the original master plan, the commission, unhampered by other municipal problems, is especially competent in view of its knowledge of the needs of the city and the probable trend of its future growth. Its long-term membership, its authority to contract with city planners, engineers, architects, and other consultants for such services as may be required, as authorized by the act, and its cooperation with the city engineer or other municipal officials, render the commission better qualified to make and adopt the original master plan than the legislative body of the municipality, whose duties, as previously stated, are of a more immediate and pressing nature.
States using the standard act.-Since the standard act was published it has been used in varying degree by the legislatures of 12 States in the enactment of 17 different planning acts or amendments of planning acts. These States are: Arkansas, California, Colorado, Connecticut, Kentucky, Maryland, Michigan, New Jersey, North Dakota, Ohio, Pennsylvania, and Virginia.
Scope of planning.? -In its final report (1933-34), the National Planning Board referred to planning as "the systematic, continuous, forward-looking application of the best intelligence available to programs of common affairs in the public field, as it does to private affairs in the domain of individual activity.' As proof that “from the beginning of our national life various forms of planning have been in evidence”, the report traces in some detail the historical development of planning in the United States and directs attention to the fact that the growth of city planning has been a conspicuous feature of the twentieth century. It further
6 This section of the report is a digest of circular letter LC-369 of the Department of Commerce on Survey of City Planning and Related Laws in 1932, by Lester G. Chase of the Division of Building and Housing, mimeographed on Apr. 27, 1933.
? The remainder of this section of this report was prepared by Harold Merrill, assistant executive officer, National Resources Committee.
points out that systematic consideration of the physical plan of the city has come to be commonly accepted and has been supplemented by additional developments of zoning, housing, and recreation.
City and county planning.–According to the survey made by the National Planning Board under the Civil Works Administration program in 1934, there were 739 city planning boards (National Planning Board Eleventh Circular Letter). Of these, 717 were official agencies. The number of city planning commissions has since increased to approximately 900.
Classified according to population groups, it was found in the 1934 survey that there were city planning commissions in all five cities of 1,000,000 or more; 79 of the 88 cities of 100,000 to 1,000,000; 179 of the 283 cities of 25,000 to 100,000; 211 of the 606 cities of 10,000 to 25,000; 111 of the 851 cities of 5,000 to 10,000, and 154 of the 14,765 incorporated places of less than 5,000 population. This distribution is still proportionally about the same.
County planning commissions in the United States have increased in number during the past 3 years, to a total now of nearly 400. Many of these commissions, particularly in the West, have been temporarily organized largely for the purpose of preparing public works programs. It is expected, however, that a large percentage of them will be made permanent and that they will each assume the responsibility of preparing a comprehensive county plan of development. Seventeen States have already passed special or general county planning enabling acts.
Activities of city and county planning boards.-In 1934, comprehensive city plans had been prepared in 218 cities, 163 of which had been officially approved by the city planning board and 105 of these adopted by the city council, while 36 had plans in preparation. Approximately 125 of these are known to be based on careful surveys and may be called "master plans”, as defined by the Standard Planning Act prepared by the United States Department of Commerce and by the planning laws of several States. This number is constantly increasing, how
In addition to a public-works program, a comprehensive city or county plan is based upon study of physical, social, and economic factors, such as: Population and development trends, urban and rural land and water use, transportation, power development, mineral resources, conservation and reforestation, recreation areas, public education, etc.
As part of its urbanism study, the National Resources Committee is making a Nation-wide survey of the status of city and county planning, similar to the Civil Works Administration survey of 1933–34. When completed the data will facilitate reappraisal of the activities, accomplishments, and problems of city and county planning.
State planning.—During the past decade, certain activities similar to presentday State planning were noted in Wisconsin, New York, Illinois, Massachusetts, and Iowa. Usually, however, conservation of one or more of the natural resources was stressed.
However, the State planning boards (now 45 in number) formed since 1933, under the encouragement and assistance of the National Planning Board and its successors, have directed their attention to a wider variety of subjects, upon which they report their findings and recommendations to governors or legislatures, which studies and reports are especially useful to Federal and State agencies. The fields of activity relate primarily to public-works programs, integration of transportation systems, land classification, soil erosion, water use, mineral resources, housing, distribution of industry, recreation, population trends, fiscal programming, and stimulation of city and county planning.
Federal assistance to planning.-City and regional planning progress has been recorded by the Division of Building and Housing of the Department of Commerce for many years. Assistance has been provided to the zoning and city planning movement by the distribution of publications of that office. Stimulation of long-range programming of public works by municipalities was one of the principal interests of the Federal Employment Stabilization Board. All of these activities are being continued by the National Resources Committee, although along somewhat different lines.
The Public Works Administration emphasized the importance of sound planning from the beginning of its work. In its circular no. 1, issued July 31, 1933, the first of five tests to determine the eligibility of public-works projects was stated as the "relation of the particular project to coordinated planning, and its social desirability.” In the same circular first preference is given to those projects "integrated with and consistent with a State plan.” The instructions to State engineers issued as bulletin no. 1, also recognized the importance of planning and laid down a series of planning considerations for every project including conformity with city or regional plans.
Direct assistance to State and interstate planning boards was made possible through funds allotted by the special Public Works Board to the National Planning Board. Upon application to the National Planning Board and agreement to meet six reasonable conditions, there was assigned to a State or interstate planning board a qualified consultant appointed by the Administrator of Public Works. This assistance and cooperation has been continued by the National Resources Board (now committee), successor to the National Planning Board. Largely as a result of these efforts, State Planning Boards now exist in all but three States, and consultants have been assigned to 40 of these. The present Works Progress Administration is providing staffs to 40 of the State planning boards. The staffs thus provided are in all cases under the supervision of the State planning consultant assigned by the National Resources Committee.
The Federal Civil Works Administration, soon after its organization, gave its sanction to planning studies and surveys as favored State and local projects. Thus many city planning agencies were provided temporarily with greatly needed technical and clerical assistance. Under the Federal Emergency Relief Administration and the Works Progress Administration this assistance has been continued.
The Civil Works Administration made possible several Federal projects of great value to State and local planning work, notably the Federal real-property inventory, urban and rural tax-delinquency surveys, the farm-housing survey, farmland use survey, subsistence homestead study, and the census of American business. Through the National Planning Board, the Federal agencies in charge of these Federal projects were put in touch with local, city, regional, and State planning agencies, many of which cooperated in the organization and conduct of the projects, in obtaining office space and in other ways assisting in the work.
Emphasizing the importance of city and regional planning to the whole national planning process, the National Planning Board stated in its report that “the healthy growth of city, county, and regional planning must ultimately rest on local interest, initiative, and responsibility. While a new impetus may be provided by direct financial and personnel assistance from the Federal Government, the long-range undertaking of stimulating, advising, and guiding local planning effort is the proper function and responsibility of the State and local planning boards and civic organizations. A national planning agency as a clearinghouse can and should be in a position to help through circulars and bulletins on standards, procedure, and experience which may be generally applicable throughout the Nation.” This was also stressed by the National Resources Board, which, in its report to the President, December 1934, recommended “that continued cooperation with and encouragement of State planning and local planning work should be one of the primary obligations and activities of the proposed National Planning Board.”
Legal validity of planning.--As long as planning commissions and their work are based upon appropriate planning enabling legislation, such as that compiled by the Advisory Committee on City Planning and Zoning of the Department of Commerce, properly enacted by the State legislature, there is no ground for questioning the creation or legal validity of planning commissions or their work.
Acknowledgment.—This report on the problem of slum areas in the United States and legal aspects of measures aimed at eradication and prevention has been compiled for your subcommittee on law and legislation by David A. Bridewell, secretary of the subcommittee.
Horace Russell, Chairman, Federal Home Loan Bank Board; Richard
R. Quay, Vice-chairman, Federal Housing Administration;
THE COMMITTEE FOR ECONOMIC RECOVERY, INC.,
New York City, April 29, 1936. Senator DAVID I. WALSH,
Washington, D. C. DEAR SIR: We herewith submit to you a copy of a report on public housing as recommended by the Committee for Economic Recovery. You will note that we have not only submitted an affirmative program, which is the result of months of intensive study, but have also included some comment on the Wagner-Ellenbogen bills, the former which is now before you for consideration.
The committee believes that a vast housing program, similar to that of England, is the greatest single means for economic recovery and social progress. The writer will be glad to discuss this report with you if you so desire. Yours very truly,
ALLIE S. FREED, Chairman, Committee for Economic Recovery.
PUBLIC HOUSING TO SUPPLEMENT PRIVATE ENTERPRISE We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.- Preamble to the Constitution.
The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States
- Article I, section 8, of the Constitution. The Committee for Economic Recovery believes the time has arrived to "go forward with the Constitution.' The general welfare of the people of the United States is seriously menaced by housing conditions that are a discredit to our Nation.
Immediate action is necessary if we agree with the President that “Americans must live as Americans should.” The committee has already submitted a rounded-out housing program in which we definitely stated that public housing was essential. In this report we intend to develop more fully the basic principles, broad objectives, and operative methods of an adequate public-housing program.
Though the Nation's housing situation has been the object of much concern, but few communities have gone beyond the stages of discussion and unthinking clash. This serious economic depression, with all its accompanying trials and tribulations, has helped us to realize, though in too small a degree, that housing has become a matter of national concern.
Unfortunately, slum clearance, slum-dweller rehousing, and low-cost housing have all become jumbled in a series of misunderstood moves. Objective and careful planning is now required if we are to unscramble the situation. Most of the activities to date have been part of an emergency plan. The Federal Government has experimented on this most vital and serious phase of American life, but has unfortunately attempted to solve a long-term problem in terms of emergency. Regardless of politics, the housing problem of the Nation will be one of our most crucial and vital questions over the next decade. Its solution requires a Nation-wide educational campaign, and cooperation from business, labpr, civic, and social groups. It cannot be solved in an atmosphere of emergency aid or partisan politics.
Private capital and private industry cannot solve this problem alone by reason of two important inter-related facts:
(1) Many American families have such small incomes that they can only afford the rentals charged for the lowest grade "hand-me-down” habitations.
(2) Many of the depreciated buildings are so enmeshed in blighted environments, overcapitalization and overassessment that their acquisition for purposes of demolition and replacement is extremely difficult under existing laws and economic conditions. Furthermore, they do not offer an opportunity of proft.
Thus it becomes the duty of the collective agencies of society-Federal, State, and local governments, singly or in partnership, to assume the responsibilities of leadership in solving two inter-related problems—the human and social problem of better housing for families unable to pay economic rent; and the real property problem of rehabilitating blighted areas (šlum clearance).