Cottages as public nuisances

More on public nuisance: Maureen Brady recently posted "Cottages as Public Nuisances: The Long History of Land Use Regulation of the Poor", forthcoming in Depaul Law Review. The abstract:

In the Fourth Book of his Commentaries on the Law of England, in a chapter entitled “Offenses Against the Public Health, and the Public Police or Oeconomy,” William Blackstone sited his discussion of “common nuisances.” Although many things on this list of what we now call public nuisances are familiar—blockages of public roads, disorderly saloons, trades emitting offensive smells or sounds—one stands out. Blackstone described as a typical nuisance the erection of “cottages,” going on to discuss and even criticize the situation of these dwellings alongside uses like fireworks and the keeping of hogs in close quarters.

Blackstone, Washington DC

The aim of this Essay is to examine Blackstone’s discussion of cottages in context, endeavoring to use it toward two ends. The first is to better understand the concept of public nuisance and its limits. As others have chronicled, there has been a renaissance in interest in the tort in recent years, spurred on by multimillion dollar litigation invoking it in contexts ranging from the opioid epidemic to climate change. Here, I engage in a close reading of Blackstone’s passage and its citations, examining why cottages were regulated as public nuisances in the first instance and how that history connects to broader developments in English (and later American) law and society. As it turns out, cottages bore a closer relationship in many ways to public nuisance “classics,” like road blockages and certain public health risks, than it might at first appear.

Bounties and land-use regulation

Jack Whiteley recently posted "Property in Wolves", forthcoming in the Cornell Law Review. The abstract:

From colonial times until the mid-twentieth century, governments paid bounties to kill wolves, mountain lions, and other wild animals. Clearing the wild was a sustained legislative project. Yet interest in these statutes has remained confined to scholarship on wildlife conservation, and important insights for legal theory have gone unobserved.

Based on new research, I argue that these bounty statutes have implications for the history and theory of property. The statutes were, in their intent and effect, land use regulations. For more than three centuries, they encouraged livestock. By removing wild animals, the statutes made livestock-raising a more cost-effective use of land than it otherwise would have been for landowners. And by removing wolves and other ecologically important species, they changed the character of land in ways that diminished the value of wilder uses. The statutes chose winners among land uses, and they operated over a much longer timeframe than conventional accounts, which date land use regulation’s origin to 1916, would suggest.

The statutes also had a deeper consequence. They encouraged private property in land. Predation on livestock is the kind of “large event” that, on a famous theory developed by Robert Ellickson, makes collectively-owned land valuable. By acting to remove the threat of wild animal predation on livestock in settlement communities, governments weighted the scale toward privately-owned, fee-simple land regimes. This discovery raises questions for a popular normative justification for private property in land.

The Article finally offers thoughts as to why animal eradication was such a pronounced public policy. The phenomenon suggests the influence of cultural preferences on property regimes.

Note: Apparently bounties are still with us, as can be seen in the recent poster below. 

(Boise State Public Radio)

French planning law

The French journal Revue d'histoire des Facultés de droit et de la culture juridique recently published a collection of articles on the occasion of the 100th anniversary of "la loi Cornudet", the 1919 French statute on urban planning (known by the name of the legislator who initiated it). The papers are based on those delivered at a conference at the Sorbonne in 2019.

As the French law was roughly contemporaneous with salient American planning and zoning laws and the English Town Planning Acts, it would seem that there should be ample room for fruitful comparative and transnational research. I hope someone takes up the challenge!

Paris development plan of 1934

The Adirondacks in the seventies

Just out in the Journal of Policy History: Peter Siskind's "'Enlightened System' or 'Regulatory Nightmare'?: New York's Adirondack Mountains and the Conflicted Politics of Environmental Land-Use Reform During the 1970s". The abstract:

This exploration of the politics of land-use reform in New York's vast Adirondack Mountains provides a revealing window onto the ambiguities, evolution, and importance of environmental liberalism during the 1970s. A distinctive set of circumstances, featuring forceful advocacy by Governor Nelson Rockefeller and propitious political timing, led to the creation in the early 1970s of one of the most ambitious state-level environmental reforms in modern American history. But implementation during the mid- and late 1970s proved challenging. Environmental management by a new regional agency that possessed powerful regulatory authority over all public and private lands in the region produced discontents, distrust, and organized opposition among both developers and property-rights advocates on the right and environmental advocates on the left. The result was an uneasy, enduring legacy: the new regulatory institution and key environmental planning ideas of the early 1970s and the later, wide-ranging discontents would coexist in similar forms for decades to come.

Regional planning in a decentralized state

The early-modern Netherlands continue to inspire interesting historical scholarship on environmental regulation (see, e.g. here). Last year's Environment and History had an article by Milja van Tielhof, "Regional Planning in a Decentralised State: How Administrative Practices contributed to Consensus-Building in Sixteenth-Century Holland". The abstract:

This article examines how a regional drainage system in the northern part of Holland in the Late Middle Ages could emerge despite the fact that the weak central state was hardly able to provide the necessary coordination nor prevent free-riding. Institutions, defined as rules and norms, including practices, procedures and techniques, play a key role in the argument. Four traditional administrative practices are identified as essential to the emergence of regional water control: a broad consultation process, by which opponents of new plans were also heard; landowners giving their explicit consent to plans and their costs; the proportional division of the costs; and the use of compensation for damage suffered. These practices respected local autonomy and broadened the level of support among the local stakeholders. The effectiveness of the practices was strengthened when they were used in combination with a technique provided by the Habsburg state: the enqueste or inquiry. This was a technique for gathering reliable, relevant and detailed information at the local and regional level. In this case study, the information on landscape and water use, collected by the 1544 Commission of Inquiry, facilitated cooperation between communities that enjoyed a high degree of self-governance.

Was zoning constitutional?

A while back I promised more on John Nolon's series on zoning's centennial, so here are some excerpts from his Part 3: "Zoning was Contagious, but was it Constitutional?":

By the mid-1920s, zoning had been challenged in several state courts with split results. A majority of the courts that considered early zoning laws agreed with State ex rel. Carter v. Harper (Wisconsin, 1923), which upheld “so-called zoning” against takings, equal protection, and due process claims. Several quotes from the case explain this result: In Harper, the court established that ”…the rights preserved to the individual by these constitutional provisions are held in subordination to the rights of society.”  Further, the case held that “[t]he purpose of the law is to bring about an orderly development of our cities….Everyone who has observed the haphazard development of cities…has appreciated the desirability of regulating the growth and development of our urban communities.” Ultimately, the court raised a critical question: “When we reflect that one has always been required to use his property so as not to injure his neighbors...can it be said that an effort to preserve various sections of a city [from harmful intrusions] is unreasonable?”

Other courts agreed with Judge Offutt, who wrote in Goldman v. Crowther (Maryland 1925): “This ordinance at a stroke arrests that process of natural evolution and growth, and substitutes for it an artificial and arbitrary plan of segregation….” He further noted “…it has never been supposed in this State that the police power is a universal solvent by which all constitutional guarantees and limitations can be loosed and set aside regardless of their clear and plain meaning…. [T]hose limits must bear some substantial relation to the public health, morals, safety, comfort or welfare.” Thus, “…so much of the ordinance as attempts to regulate and restrict the use of property in Baltimore City is void.” The court found that the ordinance itself did not contain adequate provisions demonstrating that it was bottomed on legitimate public interests. On its face, the separation of land uses into zones was void in Maryland.

In the leading case of Village of Euclid v. Amber Realty Co.:

The Court noted that ”while the meaning of constitutional guarantees never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operations.” Invoking the law of nuisance and the “painstaking considerations” found in the reports of various planning and land use commissions and experts, which concur in the view that the segregation of different land uses serve many public interests, the Court found zoning constitutional. And, it did so by firmly establishing the standard still used today in determining whether a zoning regulation is valid exercise of local police power: “The reasons supporting the separation of land uses could not be said to be clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.” 

(Chad Felton — The News-Herald)

More zoning history: the Federal government, Herbert Hoover, and sprawl

In honor of zoning's 100th anniversary, John Nolon has been posting a multi-part series on the history of zoning at Land Use Prof Blog (see here at the bottom of the page). Some highlights from the first couple of posts (here and here) on the interplay between local, state, and national legislation:

Cities are not sovereign entities; they get their legal authority from the state. New York City’s zoning law, for example, was enabled by a 1914 act of the state legislature, which amended the City’s Charter to authorize it to control land use. Twenty state legislatures, plus the District of Columbia, followed suit by adopting some form of zoning enabling act by 1921.  In other states, many localities rushed to adopt zoning laws in the absence of state authority, risking invalidation due to their lack of legal authority. The need for enabling acts in all states and for a uniform and effective method of delegating control of land use to municipalities led to the promulgation of a model zoning enabling act by a national commission in 1922.

Although the federal government has limited power to regulate local land uses, it has an important role to play in enabling, guiding, and assisting local governments to exercise their delegated power wisely. Zoning’s story illustrates the powerful influence that the federal government can wield if it plays this facilitative role strategically.  In the case of zoning’s adoption, the story involves the federal Department of Commerce.

As Secretary of Commerce under presidents Harding and Coolidge in the 1920s, Herbert Hoover paved the way for the rapid adoption of zoning. Hoover noted “Our cities [do] not produce their full contribution to the sinews of American life and national character” and these “moral and social issues can only be solved by a new conception of city building.”  His response was to appoint two advisory committees: one to write a standard building code and another to draft model zoning and planning statutes to be adopted by the states, in their discretion. 

Zoning's 100th anniversary

To mark the 100th anniversary of what New York's 1916 zoning ordinance, arguably the world's first, yesterday's New York Times carried an article by David Dunlap, "Zoning Arrived 100 Years Ago. It Changed New York City Forever." The article argues that it was not the completion in 1915 of the Equitable Building, taking up a whole city block, without setbacks, that was responsible for enactment of the law, as agitation for such regulation had been brewing for some time:

“The time has come when effort should be made to regulate the height, size and arrangement of buildings,” George McAneny, the borough president of Manhattan, declared in a 1913 measure establishing what amounted to a zoning committee.

Regulations, he wrote, were needed “to arrest the seriously increasing evil of the shutting off of light and air from other buildings and from the public streets, to prevent unwholesome and dangerous congestion both in living conditions and in street and transit traffic, and to reduce the hazards of fire and peril to life.”

*****

He and Edward M. Bassett were the chief architects of the 1916 Zoning Resolution.

Under its rules, buildings in strictly residential zones were permitted to rise only as high as the streets in front of them were wide; a ratio of one to one, put another way. (Side streets in Manhattan are typically 60 feet wide.)

These “1” zones cover most of the oversized maps in a portfolio titled, “Height / July 25, 1916,” that the City Planning Department still keeps. They are relics now, since the 1916 Zoning Resolution was superseded in 1961.

Also visible on the maps are “1¼” zones, “1½” zones, “2” zones and, in Lower Manhattan, a “2½” zone, where buildings could rise without setback for two and a half times the width of the street that they fronted. 

Carl Weisbrod, is the director of the City Planning Department and chairman of the City Planning Commission, is quoted as crediting the ordinance's authors with creating 

a revolutionary document couched in accepted common-law and constitutional doctrines: that landowners are not entirely free to create nuisances to those around them; and that local governments may police conduct in the name of public health, safety and welfare. 

“So much of this was to get the courts to feel comfortable that this was a natural and obvious use of the police power,” Mr. Weisbrod said, “when what it really was a dramatic change.” 

Art and the history of environmental law - part VI: Art and hidden environmental law

The last part of a series based on my article on art and history of environmental law. After looking at what art can teach us about environmental law's historical effects, we turn now to how works of art document historical environmental law itself, exposing historical law we might otherwise not know about.

Smoke over Des Moines (right), discussed in Parts IV and V of this series, does more than document the contemporary concern over air pollution that served as the background for the mid-twentieth century’s wave of environmental legislation or the failure of early legislation to solve the problem; it also alerts us to the very existence of air pollution regulation in mid-twentieth-century America, penetrating even to a relatively small Midwestern city. The poster is useful on yet another level, disclosing the legal and institutional form—local ordinances and smoke commissions—that the regulation often took in this period, thereby helping the modern historian bridge the conceptual and semantic gap between today’s legal forms and those of the past.

The WPA poster also opens further avenues of inquiry about environmental law circa 1940. We know from other sources that smoke commissioners and inspectors were appointed under a local Des Moines ordinance. Yet it was the St. Louis Smoke Commissioner, not a local official, who was the featured speaker of the advertised event. Historians have noted that the St. Louis Commissioner, Raymond Tucker, was a particularly effective and influential figure in the American anti-smoke movement, and the 1940 St. Louis ordinance that he pushed through and zealously enforced attracted attention outside the city.  The poster’s recording of Tucker’s visit to Des Moines, probably in early 1941,  might indicate the arteries of legal influence through which environmental norms flowed between jurisdictions during this period, raising questions about whether law traveled as a disembodied printed text or as a companion to flesh-and-blood travelers, and about the possibly limited geographic scope of legal diffusion during this time.

Turning to land use law, Monet’s work is once again suggestive. His 1870 paintings of the beach and boardwalk at Trouville (e.g. The Beach at Trouville, 1870, Wadsworth Atheneum, right, and La Plage à Trouville, 1870, private collection) display an interesting feature—the apparently flush building line and open beach.  Beach setbacks are a hot environmental issue today, but a supposedly recent one, as evidenced by historic building right up to the shoreline in many places. Assuming Monet’s depiction of the beach setback is historically accurate—its repetition in at least two paintings suggests it is—why did the owners of the expensive real estate in the trendy Norman resort not take advantage of the full extent of the beach to increase the built areas of their casinos and hotels? Why did they leave the beach open to the public?

The straight building line indicates a measure of coordination, and the owners’ withstanding of the temptation to “defect” and extend their buildings further out toward the sea suggests a degree of legal coercion. What kind of legal norm operated here is a mystery. Was it a French version of the “public trust doctrine”? A local initiative to preserve the tourist-attracting beach, anchored in local ordinance, contract, or servitude? An early law aimed at beach preservation, or perhaps one that sought to prevent storm damage to built structures? In any case, that Monet’s eye was drawn to this feature seems to attest to both its salience and its aesthetic value in the eyes of contemporaries.

Similarly, while Victorian environmental law may not have brought about clean skies, some paintings hint at other effects. Though mandating minimum chimney heights in order to lift pollution away from populated areas (transferring the fallout somewhere downwind) was apparently a product of the twentieth century, earlier paintings suggest that minimum chimney heights were being established already in the nineteenth. The multiple smokestacks in Caillebotte’s Factories at Argenteuil and Pissarro’s Bords de l’Oise à Pontoise (both in Part III of this series), among others,  appear to be of uniform height, towering above the squat chimneys in earlier paintings, such as De Loutherbourg’s early nineteenth-century depictions of the iron works at Coalbrookdale, Shropshire (below).

Phillipe Jacques de Loutherbourg, Iron Works, Colebrook Dale
(engraving William Pickett), 1805,
Science Museum at Wroughton

The standardization of heights evident in Caillebotte’s and Pissarro’s paintings from the latter part of the century suggests a legal moment behind the smokestacks’ specifications. Whether the elongated stacks were a uniform response to legislation requiring consumption of smoke, to more specific technical requirements imposed by legislation or licensing procedures such as the enquête de commodo et incommodo, or an attempt to head off nuisance suits by adopting industry-wide best practices needs to be investigated, but their artistic rendering at least opens this avenue of historical inquiry.

These examples suggest that while it may be difficult to discern the precise content of environmental law from artistic sources, these sources can at least alert us to the presence, and sometimes the form, of environmental legal norms, in historical contexts in which we might not have suspected their presence. Art can thus be a tool for understanding not only the preconditions and effects of environmental law, but the law itself.

*****

To sum up this series, I would say that art can provide a valuable set of historical sources for understanding the cultural attitudes toward the environment against which environmental law did or did not develop. It can also help evaluate the effects of environmental law, particularly as these were perceived in history. While its utility for uncovering environmental law itself is probably more limited, we have seen that it can at least suggest lines of historical inquiry into the presence of environmental law and the form it took.

If you haven't seen the rest of this series or the original article, please take a look. I would appreciate your thoughts, as well as further research in this field!

Art and the history of environmental law - part V: Art and the effects of environmental law

The latest in a series based on my article on art and history of environmental law. After looking at what art can teach us about the historical background of environmental law, we turn now to what we can learn from it about environmental law's effects.

James W. Earl, Twelve Square Miles, 2010 (courtesy of the artist)

Hugh Ferriss, Study for Maximum Mass Permitted
by the 1916 New York Zoning Law, Stage 4, 1922,
Smithsonian Design Museum, Cooper Hewitt collection
(courtesy of the Smithsonian Institution)

The effects of law on landscape are clearly seen in the case of land use law. The U.S. Northwest Ordinance’s imposition of Cartesian order on the living earth is perhaps best appreciated through often beautiful satellite or aerial images (e.g. above). The effects of New York City’s famous zoning ordinance of 1916 were given visual form in Hugh Ferriss’s drawings (e.g. right) and in photographs of the architectural icons built under the code (e.g. below). And the environmental upheaval wrought by American postwar suburban zoning ordinances was given early expression in the utopian/dystopian photographs of places like Levittown, Long Island (below).

Samuel Gottscho, Chrysler Building Midtown Manhattan New York City 1932

Thomas Airviews, Aerial view of Levittown, 1949
(courtesy of Levittown Public Library)

Waste and legal-historical methodology

Joe Jones, Wastelands (c. 1937)

Jill Fraley recently posted "Waste Law", a critique of Morton Horwitz's influential account of the changes in American property law brought about by industrialization, and of the methodology she thinks supported his work. For the uninitiated, "waste" is the common-law doctrine that says that tenants of real estate cannot make changes to the property to detriment of those with future interests in the land; Adam Wolkoff explains its significance from an environmental history perspective here. Fraley's abstract:

The history of waste law, posited as a radical transformation from the traditional English rule to a uniquely American one to support resource exploitation, provided a cornerstone for Morton Horwitz’s influential view of the transformation of American law. While Horwitz’s general approach to the transformation of law has been critiqued, his economics-driven view of waste law has remained the primary narrative from textbook to scholarly accounts. Yet Horwitz’s account of waste law’s transformation lacks evidentiary support. Indeed, the story of waste law has remained half written because scholars have examined the American doctrine without considering the prior and concurrent English cases. This article provides a previously unwritten history of waste law and demonstrates that despite vastly different social and economic contexts, American courts and English courts shifted roughly contemporaneously and in parallel. Both jurisdictions shifted in response to innovations in surveying technology and title recordation. For American courts, the changes were both less radical and less American than previously suggested, maintaining a deep fidelity to the English tradition.

Given that Horwitz’s overall theory of transformation has been criticized and that the evidence so little supports Horwitz’s account, the traction of Horwitz’s narrative of waste presents quite a quandary. By examining the resilience of Horwitz’s narrative, this article suggests a critique of the methodology of legal history. By overly focusing on social contexts, historians have allowed themselves to be anachronistically biased, viewing transformations of law through a lens of the inevitability of industrialization. While social contexts provide key data points, the law and society methodology does not absolve historians of their duties to doctrinal investigation. When scholars examine transformations through the lens of social context without engaging the history of doctrine, they risk distorting the role of law as an independent, stable, and internally consistent structure of society — one that promotes social stability and affirms existing rights and investments, particularly where property is concerned. Only by reintegrating and reaffirming the role of doctrinal investigation can we mold a more accurate method of examining the transformations of American law.

Antimonopoly in Public Land Law

Michael Blumm and Kara Tebeau recently posted "Antimonopoly in Public Land Law". The abstract:

Public land law is often thought to be divided into historical eras like the Disposition Era, the Reservation Era, and the Modern Era. We think an overarching theme throughout all eras is antimonopoly. Since the Founding, and continuing for over two-and-a-quarter centuries into the 21st century, antimonopoly policy has permeated public land law. In this article we show the persistence of antimonopoly sentiment throughout the public land history, from the Confederation Congress to Jacksonian America to the Progressive Conservation Era and into the modern era. 

Antimonopoly policy led to widespread ownership of American land, perhaps America’s chief distinction from England and Europe. The policy fostered acreage limits in federal grants, a preference for bona fide settlers, and eventually an evolution from land sales to free land under the Homestead Act. Antimonopoly principles were also present in public timber, mining, and rangeland policies from the earliest days. In the Progressive Conservation Era antimonopoly fueled a public land withdrawal and reservation movement, landmark leasing and licensing programs that maintained public control over fuel minerals and waterways, and the first explicit federal policy concern over future generations. The modern era has seen the codification of multiple use management, the enactment of comprehensive land planning statutes, and the rise of multi-species concerns, among other antimonopoly policies.

Although antimonopoly policies seem to be under some threat from recent Congresses, a turn toward monopoly would amount to a renunciation of centuries of public land policy. This history strongly counsels against such these proposals as, however imperfectly realized on-the-ground, antimonopoly has been always been cardinal feature of public land law and policy and is deeply embedded in the nation’s identity as a reflection of republican values of individualism and equal opportunity.

More on antimonopoly in American natural resource law here.

Swamp drainage and law reform

It turns out that not all legal historians think environmental history is interesting. Today's Reviews in History has a review by Daniel Gosling of David Chan Smith's Sir Edward Coke and the Reformation of the Laws: Religion, Politics and Jurisprudence, 1578–1616 (Cambridge University Press, 2014).

Here's what Gosling has to say about one of the chapters:

Chapter three looks in more detail at the corruption of the law in the early 17th century, and the complaints of those that were expected to use it. The text does this by examining the case-study of The Case of the Isle of Ely (1609), which saw Coke attempt to negotiate the proposed draining of the Fens, the low-land area of marsh and bog in the east of England. This was such a thorny issue because in order to drain the Fens taxes would have to be raised in the surrounding areas, and parts of the Fens would have to be enclosed to incentivise investors. Although this case-study demonstrated how contentious the common law could be amongst the wider population, and how Coke attempted to solve the problems, this chapter more than any of the others feels like an unnecessary digression from the wider argument, with too much time spent looking at the law in the Fens rather than the more pressing topic of common law reform that the rest of the book had set about to describe.

Some might have a different opinion. I would actually like to see a full-length study of the law of drainage; from what I remember from Catherine Drinker Bowen's book on Coke, commissions of sewers were a fertile source of law.

Zoned in the USA

H-Environment recently posted Richard Walker's review of Sonia Hirt's Zoned in the USA: The Origins and Implications of American Land-Use Regulation (Cornell UP, 2014). Walker writes:

Hirt does four things in this volume. First, she lays out the essentials of American zoning and planning without getting lost in the details. Second, she makes the comparative case for the uniqueness of the United States in terms of its degree of spatial homogeneity and protection of the idealized single-family, detached house. Third, she gives a quick tour of the history of spatial separation in cities and especially the rise of urban planning in Europe, before returning to the deep roots of "exclusive domesticity" in America ideology from the colonial era onward. Finally, she provides a fine, brief history of the establishment of deed covenants and municipal zoning in the US case.

The essence of Hirt's analysis is that American zoning is distinct from all other national planning practices, and that it is so because the spatial order of American society and cities is unique. In this, history matters in showing the depth of American ideas and permanence of US practices concerning what Hirt calls "spatial individualism": freedom conceived geographically as isolation and elbow room. Frederick Jackson Turner goes to town, as it were. Along with this came a uniquely American preference for the single-family, detached house, which dominates urban space and legal practice as in no other country. Hirt certainly recognizes the importance of separating noxious uses from domestic tranquility as the foundation for zoning, but she is nicely attuned to two other things vital to spatial freedom in the American sense: freedom from having to mingle with the lower classes and races and freedom to profit from property development by keeping government at bay except to minimize uncertainty and risk. The desire for spacious, single-family housing segregated by class, race, and function was deeply ingrained in popular bourgeois culture.

One thing I particularly like in Hirt's historical approach is that, unlike almost all other treatments of zoning and spatial segregation in American cities, this one does not begin after World War Two and does not put the bulk of the blame on the federal government's mortgage policies. The New Deal simply put federal muscle and money behind what was already standard practice locked into the fabric of urbanization by the real estate industry and Herbert Hoover in the 1920s. As is so often the case in the United States, government policy and business interests went forth hand in hand to build cities profitably.

Islamic law and natural resources

In an ecumenical spirit, following yesterday's post on Presbyterianism, today we note the recent publication in Environment and History of Sabrina Joseph's "Islamic Law and the Management of Natural Resources in Seventeenth and Eighteenth Century Ottoman Syria". The abstract:

Drawing on evidence from seventeenth and eighteenth century Islamic legal sources in Ottoman Syria, the paper examines the laws governing the use and management of natural resources, particularly for agricultural production. Islamic jurists played a key role in mediating the state's relationship with local populations and legitimising local practices and customs that governed land and water use. Often, this translated into laws which prioritised protecting the public good while not necessarily challenging existing power structures. The paper also explains how pious endowments (waqfs) were integral to the management of land and water resources in Ottoman Syria. The study sheds light on indigenous narratives regarding the environment and how Islamic law adapted to social and economic circumstances on the ground. Ultimately, the law contributed to ensuring the socio-cultural sustainability of ‘management’ strategies implemented by local populations vis à vis the environment. 

Sultan's Pool, Jerusalem, 1943 (LOC)
(a 5-min. bike ride from my house, looks a bit different today)

No free parking

Jonathan Zasloff recently posted at Legal Planet on the work of Don Shoup, particularly his book (originally an article), The High Cost of Free Parking (APA Planners Press, updated edition 2011). Zasloff writes:

As Shoup observed — and more importantly, proved — land use regulations requiring massive amounts of free parking helped create sprawling urban form as well as incentivizing reliance on the automobile....

But isn’t that what the market was demanding? No, Shoup argued. Although an economist by training, Shoup became an ersatz historian, and demonstrated that most zoning codes’ parking requirements came from model codes in the 1920’s and had absolutely no empirical basis to them. Then urban planners just copied them, because that was easier. Shoup loves to compare the “science” of parking requirements to phrenology, and he’s right. 

Requiem for Regulation

Garrett Power recently posted "Requiem for Regulation", published recently in Environmental Law Reporter. From the article:

By the 1970s, most students of government had come to agree... that American society needed more and better planning. According to the consensus viewpoint, free markets no longer had the answers for the overcrowded cities, stressed natural environments, and acute social problems. The national government needed to take command over water and air quality, and state and local governments needed top-down federal aid. All three levels of government must follow the example set by the social democracies of Western Europe and put in place regulations that would plan for a better society. American governments had the constitutionally requisite powers. State and local governments were vested with a “police power” to promote “public health, safety, morals, or general welfare.” The federal government was vested with a more specific power to “regulate Commerce . . . among the several States.” Any new regulations however, might deprive some private owners of their property rights and might deprive some capitalists of their “investment-backed expectations.” And the U.S. Constitution prohibited all governments from “taking” private property or “impairing” contract rights. The Constitution even more sharply curtailed the regulatory power of the national government to matters of interstate trade. When would bold new plans for a Great Society not run afoul of the Constitution?

*****

By the three-quarter mark of the 20th century, a remarkable set of Supreme Court precedents had swollen the regulatory powers of governments while shrinking private rights to property and contract. The Court had given the regulators wide discretion.

Zoning map of Euclid Village, Ohio, at issue in Village of Euclid v. Ambler Realty Co. (1926),
 a leading case on the constitutionality of land use regulation

After discussing a number US Supreme Court decisions, Power goes on:

Post-Penn Central, there appeared to be no real obstacles—political or constitutional—to the creation of a well-planned, pollution-free society. Congress established national standards for “clean air” and “clean water.” When the Nixon Administration’s federal land use initiative was left in the lurch by President Richard Nixon’s resignation as he faced impeachment, state governments undertook their own “quiet revolution in land use control.” State laws addressed the complex problems of reallocating responsibilities between state and local governments. At the local level, detailed zoning maps had been supplanted by development agreements. Negotiations between the local jurisdiction and the landowner contractually fixed the terms and conditions upon which projects may go forward. The developer was contractually guaranteed project approval, while the locality benefited from customized performance standards and assurances that infrastructure demands would be met.

But things changed under the Rehnquist and Roberts courts:

During the first two-thirds of the 20th century... the “judicial liberalism” in [US Supreme] Court precedents had created a living Constitution that changed with the times. The Justices took it upon themselves to balance public benefits against private losses and approved bold government plans for a better society. But in the years since then, the Court’s judicial conservatives have sometimes shown renewed determination to curtail governmental activity in general, and to limit federal, state, and local planning in particular. 

CFPs: Occupation and Planning

Two announcements recently posted on H-Environment may be of interest to readers:

From the call for the 3rd Summer Institute at Cornell University (May 11-15, 2015), on the topic, “Occupation: Violence and the Long-term Control of Land and People”:

The theme of the Third Annual Summer Institute at Cornell University is military occupation and its civilian society relatives.

*****

The goal of the Institute is to understand emergent meanings of occupation and recognize its paradigmatic potential for land and resource commandeering in episodes of war and peace. Participants will ponder these questions: How does military occupation insinuate itself into civilian governance after war episodes pass? How do models of military occupation inform (or not) non-military efforts to assert control over people and landscapes? How are subaltern occupations by the occupied similar to or divergent from military occupation? Other likely questions: How is military occupation changing in light of the changing nature of war? Does occupation ever improve conditions in subjugated zones (“transformative occupation”), an assumption informing today’s U.N. Peacekeepers and other humanitarian interveners? How do corporations occupy landscapes (patents, debt obligations, take-overs, accumulation by dispossession, land/sea grabs)? How is occupation different from enclosure, annexation, and colonial dominion? 

The application deadline is January 15. More at H-Environment.

from City of Philadelphia Zoning Maps (1933)
(Greater Philadelphia GeoHistory Network)

Also, the 16th national conference on planning history of the Society for American City and Regional Planning History (SACRPH) will take place in Los Angeles, November 5-8, 2015:

SACRPH cordially invites papers on all aspects of the history of urban, regional, and community planning, worldwide. Particularly welcome are papers or complete sessions addressing:

•    planning and the built environment in the U.S. Sunbelt
•    comparative and global studies of planning, especially of the U.S. West/Pacific Rim, or U.S. Southwest/Latin America
•    preservation planning in 20th-century cities
•    disaster and urban resiliency
•    the ethics of planning
•    planning and the law

Proposals are due February 15. More at the Society website.

Planning for public lands

Robin Kundis Craig has posted "An Historical Look at Planning for the Federal Public Lands: Adding Marine Spatial Planning Offshore". Though the article's focus is on marine spatial planning (the marine equivalent of land-use planning) in the present, it opens with a historical survey of US law dealing with planning on federal lands: the Classification and Multiple Use Act (1964) and Federal Land Policy and Management Act of 1976 for Bureau of Land Management lands; and the Multiple Use Sustained Yield Act of 1960, the Forest and Rangeland Renewable Resources Planning Act of 1974, and the National Forest Management Act of 1976 for National Forests.

Triggering planned avalanches, Gallatin National Forest, 1970.
(Ross McPherson, Forest Service Photo Collection, National Agricultural Library.
Courtesy Forest History Society)

Race, space, and municipal power

Roman Hoyos recently reviewed Before L.A.: Race, Space, and Municipal Power in Los Angeles, 1781-1894 by David Torres-Rouff (Yale UP, 2013) at Jotwell. Hoyos writes:

Drawing on critical geography, which draws links between the built environment and social relationships, Torres-Rouff explains how, “In much the same way that race making leads to the formation of new individual and collective identities, place making leads to the transformation of previously neutral spaces into places with particular meanings that contain their own individual and differentiated identities.” (P. 11.) More specifically, he uses this interdependent relationship between race and space to demonstrate how local contests for power over land, labor, and water were integral to the construction of race in early Los Angeles.

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The modern period, which began to emerge in the 1870s and 1880s, is where Torres-Rouff’s connection between race and space becomes most interesting. It was in this period that the white American elite gained control of the city council. What Torres-Rouff finds is that the council’s most seemingly innocuous decisions about land—the laying out and paving of streets and the creation of a sewer system—marked L.A. as a modern racially segregated city. These infrastructural benefits were conferred only upon white American neighborhoods, ensuring the political and economic dominance of the white community, while marking the Chinese, Mexican, and other communities of color as not only poor, but as threats to the public health.