A Walk Along Willard: a revised look at land use coordination in pre-zoning New Haven.

Author:Clowney, Stephen
Position:Response to Andrew Cappel, Yale Law Journal vol. 101, p. 617, 1991 - Connecticut

NOTE CONTENTS INTRODUCTION I. OVERVIEW A. Literature Review B. The Justifications for Zoning in New Haven 1. Ideals of the City Beautiful Movement 2. Economic Concerns 3. Nuisance II. PATTERNS OF LAND USE A. The Case for Cappel: Westville 1. Overall Patterns of Land Use 2. Building Heights and Setbacks 3. Sideyards 4. Coordination Failures 5. Summary B. Mixed Messages: City Point 1. Overall Patterns of Land Use 2. Building Heights and Setbacks 3. Sideyards 4. Summary C. Coordination Failures: Upper Hill 1. Overall Patterns of Land Use 2. Building Heights and Setbacks 3. Sideyards 4. Summary D. Coordination Failures: Wooster Square 1. Overall Patterns of Land Use 2. Building Heights and Setbacks 3. Sideyards 4. Change Over Time 5. Summary III. WHY ZONING MATTERS: A HISTORY OF COURT STREET CONCLUSION APPENDIX INTRODUCTION

Land use matters. Although stories about street grids, subdivision regulations, and building codes rarely make the front page, land use, in its broadest sense, shapes the most fundamental of human activities: the way we build and structure our communities. An ongoing debate exists both in the legal academy and in city halls about whether markets or governments are better able to coordinate land use and promote rational development. (1) Much of this heated intellectual and political discussion has focused on zoning.

This Note strives to forge a richer understanding of land use regulation by closely examining the successes and failures of an unzoned legal regime. To accomplish this goal, this Note assesses and critiques Andrew Cappel's A Walk Along Willow: Patterns of Land Use Coordination in Pre-Zoning New Haven (1870-1926). (2) Almost fifteen years after it was first published, Cappel's piece remains arguably the finest small-scale, block-by-block study of an unregulated land use system. (3) In large part, the influence of A Walk Along Willow endures because it is one of the few studies to provide "empirically defended demonstrations that free land markets achieve economically efficient, politically acceptable, and socially tolerable outcomes." (4) In A Walk Along Willow, Cappel systematically measured the building setbacks, sideyards, heights, and lot coverage throughout one New Haven neighborhood, and concluded that the city's residents fashioned a complex and orderly land use system without the aid of government regulation. (5) Cappel also found that (1) nuisance law effectively controlled noxious industries; (6) (2) zoning regulations merely codified preexisting land use patterns; (7) and (3) social norms govern many aspects of urban development. (8) All of these conclusions pose serious questions about the necessity and effectiveness of zoning and other governmental land use regulations.

A Walk Along Willow is deservedly one of the most cited pieces in the land use literature (9) and remains a staple in popular law school textbooks. (10) Despite Cappel's contributions to the debate over zoning, his student note in The Yale Law Journal is heavily flawed. As this Note demonstrates, Cappel's decision to examine a single seventeen-block area in northeast New Haven undercuts the significance of his findings. Cappel argued that New Haven was representative of the "medium-sized cities that warmly embraced zoning during the 1920's," (11) and that New Haven's Willow-Canner neighborhood was "representative of the type of areas open to development in the post-1870 years." (12) Arguably, however, the "Willow-Canner strip" was not typical even of New Haven, let alone most American urban centers.

First, by any reckoning, this area was notably more prosperous than other, more blue-collar sections of the city. New Haven historian Douglas Rae described the area surrounding Willow Street as "the most desirable residential neighborhood in the early twentieth-century city," (13) and city planners Cass Gilbert and Frederick Law Olmsted, writing in 1910, labeled the area as New Haven's "high-class northern residential district." (14) Second, the area Cappel chose to study was almost completely devoid of Jews, Italians, and blacks. (15) Third, the Willow area began to develop only after New Haven's manufacturing district firmly established itself around the harbor, meaning that there was little danger of heavy commerce or industry moving into the neighborhood. In sum, while Cappel's work remains a valuable contribution to the literature on zoning, the impact of his findings is diminished by the character of the neighborhood he chose to examine.

In this Note I hope to resolve some questions left unanswered by Cappel's study. Specifically, my research examined whether Cappel's findings stand up in more representative, working-class areas of New Haven. There are many reasons to think that the conclusions of A Walk Along Willow will not hold true in the more industrial sections of the city. Cappel failed to consider that the higher percentage of temporary residents, renters, and absentee landowners may affect the social capital necessary to coordinate land use without zoning regulations. Conceivably, working-class citizens might also have lacked the means and know-how to file nuisance lawsuits against deviant land users. In addition, the social and aesthetic norms so vital to maintaining order in an unzoned system are only genuinely tested in heterogeneous neighborhoods where people do not share the same cultural traditions. Finally, it seems important to examine areas slightly closer to the manufacturing sector of New Haven. Only in these places was there a real threat of incompatible land uses coming together within the same few blocks.

Methodologically, my Note maps A Walk Along Willow as closely as possible. Like Cappel, I have examined overall patterns of land use, building height, setbacks, and side yards from the late nineteenth century until the enactment of New Haven's first zoning ordinance in 1926. These benchmarks provide an objective set of data that can be used to measure the degree of land use coordination throughout the city. My study also draws its conclusions from the identical set of 1923 Sanborn fire insurance maps that Cappel used in A Walk Along Willow. (16) Within each neighborhood I have conducted a concentrated analysis of one six-block area and recorded overall impressions of the land use coordination. To further mirror Cappel's work, and for the sake of convenience in dealing with city maps, this study focuses on two parallel streets in each neighborhood whenever possible. (17)

Unlike A Walk Along Willow, which examines only one neighborhood, my research focused on four separate neighborhoods scattered throughout New Haven: Westville, City Point, Wooster Square, and the Upper Hill. Taken together, these districts are a representative cross-section of the major working-class areas of the city during the early twentieth century. (18) Westville was a small, almost suburban neighborhood bordered by a handful of industries along the banks of the West River. Situated close to the harbor, City Point was home to light manufacturing concerns. Wooster Square sat at the center of the city's primary port and major railroad depot, and hosted several large manufacturing facilities. Finally, the Upper Hill neighborhood bordered the area immediately south of downtown, and was generally regarded as New Haven's poorest neighborhood.

This Note will also reexamine Cappel's conclusions about the history of the adoption of zoning in New Haven. A Walk Along Willow contends that "local advocates of urban planning ... came to dominate the discussion of land use controls, and the actual conditions of the city became increasingly irrelevant." (19) According to Cappel, a small group of elites forced zoning on the public, even though the city did not require it. I will argue that Cappel's strong assertions are not based on the full spectrum of available historical documents. With this study, I hope to promote a richer, more complex understanding of New Haven's decision to create a zoned legal regime and its ultimate effect on the city's working-class residents.

Ultimately, this Note presents empirical evidence that can form the basis for a new perspective on zoning. Specifically, I have set out to answer three questions: First, do Cappel's findings about the patterns of land use in the Willow-Canner strip hold up in more representative neighborhoods of New Haven? Second, did Cappel correctly assess New Haven's initial encounter with zoning in the 1920s? And third, was the implementation of zoning in New Haven worthwhile? I will argue that while Cappel's study provides a remarkable glimpse of spontaneous organization in an upscale neighborhood, A Walk Along Willow repeatedly oversimplifies the knotty problems posed by land use regulation.

Part I of this Note provides an overview of the most recent zoning literature and considers the reasons for New Haven's original interest in zoning. Part II examines the patterns of land use coordination across four separate New Haven neighborhoods. Finally, Part III closely examines the history of Court Street in Wooster Square and draws some conclusions about zoning in New Haven.


    1. Literature Review

      Zoning is the most widespread method of land use control used by local governments in the United States. Defined narrowly, zoning consists of dividing an entire municipality into districts and designating permitted uses for each area. Typically, zoning ordinances divide land into residential, commercial, and industrial sectors. Modern comprehensive zoning regulations can also control building heights, building placement, and density of construction. (20)

      Unlike other Progressive Era reforms that have been accepted as necessary to order our complex world, (21) land use regulation faces continued criticism from commentators of all political stripes. (22) Critics from the law-and-economics tradition regularly attack zoning, claiming that it diverts land from its...

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