Three Planning Innovations, a Century Later

In a nod to Mark Twain, Tariq Ali once said, “History rarely repeats itself, but its echoes never go away.” Indeed, historical events rarely remain fixed in their own era, but continue to reverberate for decades or centuries to come. This year, three key events in planning history turn one hundred years old, and they continue to impact the American urban form today. From one Kansas City shopping center to a federal act, these three events each played a significant role in shaping today’s land use and zoning laws. A century later, these events still resonate in American planning.

The Standardization of Zoning Codes

First developed in 1922, the nation’s first Standard State Zoning Enabling Act (SZEA) “laid the basic foundation for land development controls in the U.S.,” according to the American Planning Association (APA), and enabled states and local governments to enact zoning laws in their jurisdictions. Officially titled “A Standard State Zoning Enabling Act Under Which Municipalities Can Adopt Zoning Regulations,” the document provides a framework for zoning ordinances and calls for establishing a zoning commission to help in the initial formation of district boundaries and the first zoning ordinance, after which the commission was to be dissolved.

Zoning was created as a response to rapid, unordered urbanization that some saw as detrimental to cities and society. Edward M. Bassett wrote the first comprehensive zoning ordinance in the United States, which was adopted by New York City in 1916. Los Angeles was another early adopter of zoning rules, setting up residential districts and limiting allowable uses as early as 1904. The SZEA was designed as a national framework for zoning codes that some cities had already begun adopting, and could protect zoning regulations from lawsuits challenging their constitutionality.

Commerce Secretary and later President Herbert Hoover recognized the potential benefits of separating uses in cities early on. Commenting on the 1922 Regional Plan of New York, Hoover said, “The enormous losses in human happiness and in money which have resulted from lack of city plans which take into account the conditions of modern life need little proof. The lack of adequate open spaces of playgrounds and parks, the congestion of streets, the misery of tenement life and its repercussions upon each new generation are an untold charge against our American life.”

For Hoover, “The moral and social issues can only be solved by a new conception of city building.” Inspired in part by European urban planning, Hoover appointed a commission, the Advisory Committee on City Planning and Zoning (ACCPZ), to create the SZEA and provide a standardized model for states and cities to follow. This was also part of a broader effort to encourage home ownership and educate city leaders on the benefits and drawbacks of zoning. Notably, in the ACCPZ’s 1922 Zoning Primer, the committee cautioned against adopting boiler-plate zoning codes that don’t cater to a community’s unique characteristics.

The SZEA immediately began influencing state legislation, with 35 states adopting zoning acts based on it by 1935. Written before the interstate highway system changed the way American communities grew and spread, the act positioned zoning as a primarily urban issue, focused on separating ‘noxious’ uses from residential neighborhoods. The act emphasized process over broader goals, and holds the dubious distinction of easing the way for exclusionary land use policies and controls. In 1926, the U.S. Supreme Court upheld the right of jurisdictions to enact zoning provisions to protect public health by “excluding from residential areas the confusion and danger of fire, contagion and disorder which in greater or less degree attach to the location of store, shops and factories.” In time, the separation of harmful uses morphed into the separation of all uses and housing types, leading to a loss of vibrant, mixed-use neighborhoods and exclusionary, often racist policies that bar people of color and low-income households from enjoying the benefits of some neighborhoods.

Some advocates for zoning reform argue that zoning codes, as they stand, induce sprawl and automobile dependence. An alternative framework for zoning called “form-based codes” seeks to redress this by shifting the focus from uses to design. Form-based codes eschew zoning in favor of restrictions related to the form and character of buildings and developments. In 2002, the American Planning Association (APA)’s Growing Smart project provided a new generation of model planning ordinances and codes updated to reflect the realities of today’s cities and regions. The guidebook provides model statutes while emphasizing that they should be adapted for regional and local needs.

The Birth of Regulatory Takings

Decided in December 1922, the Supreme Court case Pennsylvania Coal Co. v. Mahon is credited with starting the doctrine of regulatory taking by applying the Takings Clause  of the Fifth Amendment to some cases of regulatory action. The case also established the diminution-of-value test, which holds that the extent of lost value of the property defines whether a regulatory act constitutes a taking requiring compensation.

A regulatory taking refers to an instance when government regulations prohibit a landowner from gaining economic value from their property. In most cases, the government is required to compensate landowners for such takings. In the case of Pennsylvania Coal Co. vs. Mahon, the Court ruled that the state law barring coal mining that could cause subsidence constituted a taking of the company’s coal assets.

The case stemmed from a dispute over mining rights and Pennsylvania’s 1921 Kohler Act, which held that mining interests could not mine anthracite coal in such a way as to endanger homes above coal deposits through subsidence. When Pennsylvania Coal told one landowner that they planned to mine under his home, the homeowner, H.J. Mahon, sued under the Kohler Act. However, in 1878, decades before the Kohler Act, Mahon had entered into an agreement with Pennsylvania Coal Co. to allow the company to mine for coal under his property. The company argued that Mahon knew the risks and, therefore, could not sue under the Kohler Act. The company claimed that the Taking Clause prohibits the state from depriving property owners of profit-making resources, in this case coal, without compensation.

Mahon’s case was rejected by the Court of Common Pleas, whose decision was reversed by the state’s Supreme Court. The case moved to the U.S. Supreme Court, which ruled that “The loss should not fall on the coal company who provided for this very risk contractually.” According to the majority opinion, “Since coal rights are worthless if the coal can not be mined, preventing their mining is a taking because it is tantamount to destroying it. If the police power of the states is allowed to abridge the contract rights of parties, it will continue until private property disappears completely.” In the Court’s 8-1 decision, Justice Oliver Wendell Holmes wrote, “so far as private persons or communities have seen fit to take the risk of acquiring only surface rights, we cannot see that the fact that their risk has become a danger warrants the giving to them greater rights than they bought.”

This decision is widely considered one of the most influential to takings law, instilling a protectiveness of private property. Later cases clarified that a restriction that works toward “public ends” is not necessarily a taking. In the 1987 case Keystone Bituminous Coal Ass'n. v. DeBenedictis, the plaintiff, a group of coal companies, relied heavily on Pennsylvania Coal Co. v. Mahon, but the court, this time, disagreed. According to the majority opinion, this case differed because the Subsidence Act benefited the general public rather than individual landowners, opening the door for regulations that limit harmful activities such as underground mining.

The Complicated Legacy of America’s First Car-Oriented Shopping Center

It may be hard to imagine American cities without wide roadways and acres of surface parking, but today’s car-centric public space didn’t always look this way. As automobiles became more popular and accessible, urban form began to drastically change to accommodate the new form of transportation. In Kansas City, one shopping center presaged the radical reimagining of commercial spaces, centering the automobile. In the 1910s, developer J.C. Nichols’ auto-centric dream for Country Club Plaza was visionary. However, it was also a reflection of racism and exclusionary practices that never quite disappeared.

Inspired by the Roland Park Shopping Center in Baltimore, which catered to the residents of an affluent streetcar suburb, Kansas City developer J.C. Nichols came up with the idea to build a shopping plaza designed to accommodate shoppers arriving by car from nearby residential neighborhoods. Nichols chose a site five miles south of the city’s downtown, which contemporaries viewed as too distant. In its early stages, the project was dubbed “Nichols’ Folly.”

The complex was built in the Moorish Revival style, with tiled roofs, fountains, open-air plazas, and other elements that evoked the architecture of Seville, Spain. It provided enough space for customers’ vehicles as well as delivery trucks, ample free parking, and eight gas filling stations. Thanks to this foresight, the plaza remains one of the only 1920s shopping centers that still exists today and created a model for other commercial centers as the automobile grew in popularity. Although early critics thought the development too far from the central city to be successful, Nichols proved them wrong, drawing suburban drivers and selling parcels of land near the plaza to apartment building developers to maintain a flow of foot traffic. By the 1930s, the Country Club Plaza District grew to encompass several neighborhoods, remaining the largest contiguous master-planned community in the United States, with over 22,000 homes.

A staunch supporter of suburban ideals, Nichols believed in “planning for permanence” in his residential and commercial developments. He was also a supporter of restrictive covenants that explicitly barred people of color, Jews, and other minorities from buying homes in his subdivisions with the goal of protecting property values. Kansas City’s Black and minority populations were relegated to neighborhoods east of Troost Avenue, where home values today remain much lower than in the Nichols-built developments on the west side of the city.

Designed to serve affluent white suburban dwellers who could afford automobiles, and who resided in covenant-restricted neighborhoods, the Plaza implicitly excluded Black and low-income residents. In 1968, National Guard tanks lined the east side of the Plaza, ready to quell riots sparked by the assassination of Dr. Martin Luther King, Jr. For many, the Plaza continued to serve as a symbol of racial discrimination. Recently, in response to petitions from residents and support from Nichols’ own living relatives, the city removed Nichols’ name from a local parkway and fountain.

Country Club Plaza was, in a way, both a product of its time and a prescient harbinger of future American public spaces: decisively capitalist, car-oriented, and carefully controlled.

In their own ways, these three events had far-reaching effects on U.S. zoning, land use, and property rights. From the macro level to the neighborhood, and down into the earth itself, their legacies continue to mold contemporary debates over how cities are built, how resources are distributed, and who benefits.