'A remedy on paper': the role of law in the failure of city planning in New Haven, 1907-1913.

• Author: Fenster, Mark
• Position: Connecticut

In 1924, prominent patent attorney George Dudley Seymour resigned his position on the New Haven City Plan Commission after more than a decade of frustration.(1) For nearly two decades, Seymour had been active in city government in virtually all local projects relating to city improvement, big and small.(2) In 1907, he helped to initiate in New Haven what would become known nationally as the "City Beautiful" movement, and his efforts led to the commission of Cass Gilbert, a well-known New York-based architect, and Frederick Law Olmsted, Jr., a nationally recognized city planner, to devise a comprehensive report on how best to improve New Haven's physical environment and infrastructure.(3) In 1913, New Haven established its city planning commission,(4) an event also attributable in great part to Seymour's efforts, and Seymour was ultimately appointed as the commission's first secretary.(5) By 1924, however, the realization of Seymour's vision of an efficient and rational city planning commission seemed an impossibility.

Early city planning in New Haven was part of a larger national movement by professional and economic elites and by government officials to change what they perceived to be increasingly uncivilized, unruly, and inefficient cities into more disciplined, rationally ordered urban centers of industry, commerce, and modernity(6) Supported by a city's middle and upper classes,(7) as well as by its chamber of commerce and other civic organizations,(8) early city planning did not constitute a radical reconsideration of the existing private land use regime.(9) Nevertheless, planners faced an important conflict between powerful notions of individual property rights(10) and the city's needs as a collective entity--including capital's need for rationality and efficiency in the city's economic and physical infrastructure, and city patricians' sense that parks and beautiful boulevards were crucial to citizens' health and well-being.

According to architectural critic and city planning advocate Lewis Mumford, the national City Beautiful movement posed only "a remedy on paper" for problems that required "a thorough reorganization of the community's life."(11) Although it produced reams of reports, newspaper articles, and minutes of civic organization and municipal government meetings, early city planning in New Haven, as in many other cities, did not successfully effect a systematic solution to the urban crises it identified.(12) As Seymour bitterly complained in an open letter to the Mayor of New Haven, "Not having been allowed to function as intended or to prepare a plan for the orderly development of the City, as was made mandatory by the act [creating the Commission], the Commission is undoubtedly a handicap, rather than a help,--a hindrance to public business."(13) Intended to facilitate efficiency and discipline, the city planning commission had by 1924 become a vestigial part of what Seymour considered a poorly managed municipal government. This frustration of New Haven's local movement was representative of a wider national frustration.(14)

Scholars trying to account for the failure of city planning in New Haven during the period prior to zoning(15) have typically pointed to either a lack of political and public support(16) or the effectiveness of land use coordination under the existing common law and prevailing social norms.(17) Each of these related factors played a role in that failure. Resistance among some local officials and some members of the public, often arising from their satisfaction with the current land use regime, did help limit what planners and planning proponents could achieve. This Note, however, focuses on a further impediment: the limits of available legal doctrine and municipal governance for the proposal and implementation of comprehensive programs of city planning. These limits helped to define what planners could propose and the means by which cities could seek to achieve their ends.

Although they were subject to some dispute and revision, the concepts of eminent domain(18) and the police power(19) were fairly well-defined at the time, making it clear which regulations and government takings were permissible.(20) At both the national and local levels, the limits imposed by these doctrines caused much debate and affected both the shape and success--or lack thereof--of early twentieth-century city planning. Furthermore, the nascent administrative bureaucracies of cities like New Haven proved to be ineffective instrumentalities for implementation of programs in the face of the constraints of formal legal doctrines. In challenging these constraints, however, planning proponents began the long process of changing legal doctrine and land use regulation. In turn, this helped to enable the rise of municipal zoning ordinances in the mid-1920s(21) and served as an important precedent for the far more radical "urban renewal" projects of New Haven in the decades after World War II.(22)

Part I provides an overview of the dominant conservative legal doctrines and governing practices that limited planners' goals and strategies during the period from 1907 through 1913,(23) and that planning advocates sought to change. Part II provides a narrative of the New Haven planning movement prior to the publication of the Gilbert-Olmsted report on city improvement in 1910. To illustrate the difficulties facing the nascent planning movement in New Haven, Part II chronicles an early attempt by planning proponents to expand the creation and enforcement of one form of land use regulation, building lines. Part III discusses the Gilbert-Olmsted report, the reaction to it, and the events that led to the establishment of a new administrative agency in New Haven devoted to city planning. Parts 11 and III include not only those arguments about law and municipal structure made by participants in the New Haven movement, but also those made by attorneys and lay planning proponents associated with the national planning movement. Part IV summarizes the role of law and governance in limitating upon what planners during this era could propose and what the municipal administrative agencies that planners advocated could enact and enforce. In addition, Part IV describes the relationship between the early city planning movement and the centralized city planning that would occur in the years after World War II.

1. A "MAZE OF OBSTACLES": LEGAL AND MUNICIPAL STUMBLING BLOCKS FACING EARLY CITY PLANNING

   By the time of the Gilbert-Olmsted report's publication in 1910, the ascendant national planning movement had developed enough expertise to recognize the fundamental legal issues at stake in city planning and to begin to describe them in reports, conferences, and books. Two important developments in this regard were the establishment in 1907 of the first American city planning commission by Hartford, Connecticut,(24) and the inclusion of an extensive essay(25) on the legal issues involved in a city plan by a prominent Chicago attorney named Walter Fisher in Daniel Burnham and Edward Bennett's celebrated 1909 Plan of Chicago.(26) The establishment of the Hartford Commission represented the beginning of a national trend toward including planning within the administrative structure of municipal governments. Fisher's essay was the first in a series of attempts by members of the bar associated with the city planning movement to discuss the relationship of planning to municipal governance and the common law.(27)

   One of the underlying themes of these legal reports was that doctrinal and political barriers in American courthouses and legislatures constituted city planning's greatest foes. As Olmsted wrote in his introduction to a book-length volume on the legal implementation of city planning, public officials and lawyers for cities faced "the constantly recurring problem of finding the way of least resistance for navigating a specific improvement through the maze of obstacles imposed by the existing local legal situation."(28) These situations had given rise, according to Olmsted to city officials' "almost fatalistic acceptance of these obstacles as a permanent condition."(29) In particular, restrictive conceptions of the police power and eminent domain frustrated the planning proponents' attempts to propose and implement changes. Conservative legal views on the scope of municipal authority also thwarted the planners. John Dillon's important treatise on the municipal corporation, already in its fifth edition by 1911,(30) embodied this cautious approach with its concerns that the growing complexity of city charters and the expansion in municipal government could endanger the sanctity of private property.(31)

   The following two sections briefly summarize the "obstacles" of the existing local legal situation" that planners faced.

   1. Legal Doctrines

      During the early part of the twentieth century, there were three legal doctrines available for planners who advocated the expansion of municipal regulation of private land use: nuisance, the police power, and eminent domain. While state courts were receptive to private plaintiffs' nuisance complaints,(32) the proponents of planning saw eminent domain and the police power as far more effective means to implement public projects and city planning. Neither doctrine, however, was flexible enough to support the systematic and comprehensive redevelopment of the modem city.

      Theoretically, the police power was a fairly flexible doctrine that allowed for systematic, municipally controlled land use regulation.(33) In practice, however, the doctrine's flexibility was more limited. According to the leading contemporary treatise on the subject, for example, restrictions for aesthetic purposes under the police power would "constitute a substantial impairment of the right of property, and the maintenance of an official standard of beauty would not easily be recognized under our theory of...