May 192003

“Workshop” theories of art, which trace characteristics of art to external constraints, generally leave me cold. In most arts very little stands between conception and execution. You think it, and there it is. Architecture is the exception. (Also movies, but to an ever-lessening degree.) For most of human history engineering knowledge severely constrained what could be built. Before steel-beam construction anything taller than a couple hundred feet was basically impossible.

No longer, of course. Even Frank Lloyd Wright’s mile-high skyscraper was feasible in 1956, when he designed it, except for the elevators, and that problem has since been solved. Theoretically we can build just about whatever we want.

In the 20th century what constrains architecture is law. Zoning regulations are a relatively recent invention; only in 1926, with the disastrous Supreme Court decision of Euclid v. Ambler, was their constitutionality definitely settled. Every major city in America except Houston is now zoned. The stepped-back skyscraper of the early part of the century, of which the Empire State Building and the Chrysler Building are the classic examples, was largely a product of the 1916 New York zoning ordinance. The dreadful tract houses of the suburbs, too, are a legal matter; without the rigid regulations that segregate residential from commercial use the suburbs certainly would not have taken their current form.

The Mies-Corbu school would never have seen the light of day without government assistance. Corbusier had built nothing but a few houses for his boho friends and a vacation place for his mother when in 1927 Mies brought him in to help out Weissenhof Werkbund project, an exhibition of worker housing sponsored by the German Social Democratic government. It wasn’t until decades later that private parties began to pay serious cash for the stuff.

On the other side of the spectrum things are much the same. Christopher Alexander, ideologically as far from Mies and Corbu as you can go without sailing off the edge of the earth, has had his largest commissions from the government of Mexico, and a public university, the University of Oregon. It is true that for the most part only governments are in a position to give out such commissions. This is because governments have spent a good part of the century arrogating to themselves the privilege of regulating land use. Do the architects complain? On the contrary; they demand that it be done in the interest of their pet style.

Zoning laws themselves are not ex nihilo: they come from ideas, and it’s perfectly valid to discuss those ideas. But most builders work under tight legal constraints, and it is a mistake to treat their products as if they sprang more or less directly from their heads.

King George I remarked of the Old Pretender that “He and I are in perfect agreement. We both believe we should be King of England.” So with architects.

  31 Responses to “Law and Architecture”

  1. Aaron wrote: "In most arts very little stands between conception and execution. You think it, and there it is. Architecture is the exception. (Also movies, but to an ever-lessening degree.)"

    A nit: You’d be a lot safer saying simply, "Architecture is an example of an art where a great deal stands between conception and execution." I immediately thought of two others beside movies (and so will you if you give it just another moment’s thought).


  2. I have to agree with ACD. Without disputing your central point, a great deal stands between an aspiring painter and the execution of a "great master". In my case, for example, I can imagine glorious pictures, but I can’t draw worth a darn. And even to a skilled painter, it’s still a lot of work.

  3. I’m guessing you mean sculpture and painting. It’s true that you need a good deal of physical skill in those professions, but if you have it very little stands in your way. The materials are cheap, unless you decide to sculpt in marble or something. I think the difference between a hack painter or sculptor and a great one has more to do with how they see, and less with physical skill, than is commonly realized.

  4. Speaking as someone who has dabbled in painting over the years (most recently last weekend), I can assure you that I see glorious pictures in my mind, but that, due to lack of drawing ability, they fail to materialize on the canvas.

    However, even if you leave aside the question of whether innate ability ought to count here, there’s a better way to look at it: any art which requires people other than the original artist is going to fall into this category. Theater, for instance, is much like movies and television in that it requires actors, financiers, a theater owner, stagehands, and so on. Even something as simple as standup comedy by definition is impossible without an audience of at least one.

  5. All art requires an audience. Reading a poem properly is nearly as much a creative act as writing one. Collaborative arts are an entirely different affair.

  6. Aaron wrote: "I’m guessing you mean sculpture and painting."

    If that was addressed to me, no, not sculpture and painting. I was thinking of a composer of classical *symphonic* music or opera, and a playwright. In the case of the former, the score is merely the blueprint, and in the case of the latter, ditto the script.


  7. Uh…"ditto the script" should have read, "ditto the book."


  8. Two commenters claimed to "see glorious pictures" in their minds, but an inability to transfer their visions to canvas. I find this hard to swallow.

    The ability to draw or paint requires no special athletic skill, what it does require is a genuine understanding of form, line, and color- that’s all. The better your understanding, the better your technical skill. Rendering something skillfully demands only that you really CAN see it- in other words, understand it.

    A claim to "see" pictures that you’re then unable to execute is to admit that you don’t visually understand the very images you speak of- that you can’t, in truth, see them.

    But enough! I imagined this to be a glorious first-time comment, but fear that it’s fast deteriorating into artsy doubletalk.

  9. Hey, we managed to smoke Lisa out of the weeds!

  10. "The dreadful tract houses of the suburbs, too, are a legal matter; without the rigid regulations that segregate residential from commercial use the suburbs certainly would not have taken their current form."

    I haven’t heard this point before. Is there a source that develops it more extensively?

  11. Eddie: Jane Jacobs’ The Death and Life of Great American Cities discusses the consequences of prohibiting mixed-use pretty extensively. That’s where I happened on the idea, anyway.

  12. Another good reason for me to finally read Jacobs.

  13. You write:

    "It is true that for the most part only governments are in a position to give out such commissions. This is because governments have spent a good part of the century arrogating to themselves the privilege of regulating land use."

    What does that mean? Of course! governments are the only ones to give out commissions for governmental projects.

    But by and large they act in what is called their ‘ministerial’ capacity when they build and must follow their own zoning codes.

  14. I meant that it is rare these days for private parties to be able to acquire large tracts of land and plan their development without extensive government interference. But perhaps I was unclear.

  15. Oh. OK.

    Well you are certainly correct that the development of large tracts or even very small tracts –nay, even a 60′ x 100′ lot — requires a great deal of government regulation. Such a condition has evolved over the last 80 years or so as a national consensus. It certainly doesn’t guarantee the creation of interesting urban environments; but it may prevent truly terrible abominations. Though zoning’s two parents are good-government paternalism and race-tinged classism, it’s hard to imagine any other course our society could have taken. Significant control of the built environment by government has been generally beneficial and creates social value; that’s probably why we complain about it but in the end we accede to it, with all its idiocies.

    It will be very difficult to back-off from where we are; and so far the neo-conservative and libertarian elements have said nothing of any sophistication or significance about what a deregulated building environment might be like and how we would get there.

    The right rail against regulation; the left wants more to protect its values. And nothing changes. Clearly the left has been winning but only in a theoretical sense, (though it has had hardly a wit’s impact on really preventing urban sprawl) and the right has presented no reasonable model. What is interesting is that the right is not even aware that it has said anything. 🙂

  16. help appreciated in finding weblogs which focus on the built environment?

    architecture, land use law, urban design, real estate development? etc. etc. etc.


  17. You write:

    "Zoning regulations are a relatively recent invention; only in 1926, with the disastrous Supreme Court decision of Euclid v. Ambler, was their constitutionality definitely settled."

    Why disastrous?

  18. You write:

    "On the contrary; they demand that it be done in the interest of their pet style." with link to Ahwahnee Principles.

    1. Are you saying in all seriuousness that local governments build their own projects in accordance with the Ahwahnee Principles? Where do you live? 🙂

    2. What specifically offends you?

    3. Why do you refer to the Ahwahnee Principles as a "style"?

  19. I guess I have to wade back in here.

    David: Euclid v. Ambler was disastrous, in my opinion, because it enshrined the view that partial takings are not protected under the Fifth Amendment. In other words, the Fifth Amendment applies only if the government takes my land in toto. If it reduces the value of my land by 90% through regulation, I have no recourse. Richard Epstein’s book, Takings, gives an excellent account of the subject.

    I linked the Ahwahnee Principles not because I think governments build in accord with them — obviously they don’t — but because they unhesitatingly call on the government to support their own ends. One can argue over whether they propound a "style," but that’s largely beside the point.

    Dave: People accede to zoning’s idiocies, I suspect, not because they really think it’s best for everyone in the long run, but because they don’t have any choice.

  20. Oh the old ‘takings issue.’ Yes a real concern and I don’t mean to diminish it’s importance.

    Except. The except is that the principle that the state may take 100% of a property _without_ compensation was established long before ‘Euclid’. Consider the fire department which destroys a neighboring house to stop a fire. Does it pay a penny? Even to clean up? No.

    The "police power", which is the legal basis of zoning, and by which the community arms itself as a means of self-defense, does not require compensation when its life is at stake.

    Obviously, there are abuses. The power granted government to protect "health, safety and welfare" has been extended to sometimes nebulous matters of taste and design. And environmentalists have not been nearly as sensitive to the issue of "wipeouts" as they should be, causing true hardship to many ordinary folk.

    Part of the problem is that our land use laws do not recognize a distinction between social "necessity" and social "preference." Of course that may be with good reason. Zoning is such a rough tool, every site so unique. Where is the line between "necessity" and "preference"?

    Is it a matter that I "will know it when I see it"?

    As to the acceptance of zoning: just go — as I have on more than one occasion — and apply for a building permit at a site of any social sensitivity and you will see how vigorously Americans support their local zoning, especially when it protects _their_ property values and tastes.

  21. Finally it dawns on me that "David" and "Dave" are the same person; my apologies.

    With regard to Euclid, David, I think you mostly answered your own question. The Supreme Court discarded the requirement that regulation be narrowly tailored to health and safety. The Euclid regulations, like most zoning laws, were clearly overbroad.

    Zoning imposes costs on the absent, which is the source of its enduring popularity. The local regulators drive up property values by forcing "undesirable" businesses (or residences, like apartment buildings) to locate elsewhere. Their owners never get a vote, not being allowed to enter the district in the first place. This is a form of taxation without representation, and I recall a certain war being fought over this principle.

  22. Ok. I’lI take the bait. 🙂

    How would YOU (socially) organize the physical environment of cities? i.e the legal structure around use of property.

    No zoning at all?

    T-groups on every block to discuss every fence and to create "consensus"? 🙂

    I don’t mean to sound like Pollyanna, but I really can’t imagine how, as a matter of political form, we would organize ourselves differently than we do today.

    Lots and blocks and rights-of-ways overlaid by a set of rules, conventions about what can and can’t be done. You draw a line here and you draw a line there. Yes it’s a little chaotic and arbitrary and not always fair or totally rational. It’s life.

    And we have to make it wiser and fairer. but we will make it better within the broad legal structure we have now.

    I don’t mean I like the _result_ we get; our built environment is all too squalid. but I just can’t imagine a working alternative to the overall land use use regime that we have now. Do you think that everyone who has gone before us was an idiot? Previous generations saw the issues with zoning: the perpetual tension between the individual and the group. And what we have is the best they could do.

    if we got rid of zoning, I’d bet you $10,000 we’d have it back within a decade — you can’t really believe that 250 millions Americans have been _tricked_ by nefarious liberal environmentalists into living under zoning?

    As an aside, or maybe it’s not an aside, I think that it is indicative that there are no libertarian/right-wing approaches to urban planning/land use that are the least bit credible or have popular resonance. In major metropolitan areas i.e where zoning (or its functional equivalent) is needed, there overwhelming consensus for it.

    There are useful & provocative conservative critiques of much of our social life. (Vouchers for schools, as one example.) Many are rooted in deregulation. But the conservative critique stops at land. No one talks seriously about deregulating land use because
    a) there is no political support;
    b) no one can imagine what it would be like;
    3) conservatives own houses too and benefit from the settled expectations provided by land use laws.

    Yes some people rail against zoning/permitting etc but they have no alternative to it.

    It is obvious to the vast majority of people that if we are to live in relatively high density (the American suburb included) then we need some set of rules. Oh yes, one can say that ours are cumbersome and overly-intrusive and ineffective — but that is a matter of degree and execution, not principle.

    Simplify, clarify, make more fair and transparent: yes, absolutely.

    But will the rules still be footed on the police power? How could it be otherwise. The transaction costs of a series of private contracts and covenants are too high and ineffcient; that’s why we have standard form contracts in every business — to simplify transactions. Look at zoning as way of enhancing social efficiency by creating a common set of rules about what one can do with property. No serious business person wants to do away with zoning (except when it comes to their own property.)

    It’s a marvelous social invention; and it didn’t start with Euclid.

    As to your specific point: regulating property owners who don’t vote in a muncipality. It’s an appaling point. But it is the _property_ that is zoned, not the _owner._ Varying zoning because of the domicile of the owner is, I hope, self-evidentally an absurdity.

  23. What David demands of libertarians is, and is probably meant to be, impossible to provide. Of course we can’t say what a post-regulation building environment would be like. Saying what things will look like is the very thing we’re against. All I can say is that people will get whatever they want and can afford unless they impose externalities on others. "Externalities" narrowly understood, I might add. I’ve argued with people who think sodomy should be illegal because the mental anguish the thought of gays going about their sins freely causes them is an externality.

  24. In last paragraph, "appaling" should be "appealing".

  25. "Of course we can’t say what a post-regulation building environment would be like."

    You mean, like get rid of the laws and then see what happens?

  26. Aaron Armitage suggests that I am asking for something — i.e. a serious, practical alternative to our current ‘police power’ based system of land use law —which I know cannot be provided.

    Not so. I would love to hear a conservative/libertarian critique which even attempts to deal with issues of environmental quality in a serious and thoughtful manner. To this point I do not think it exists. The conservative/libertarian (c/l) wing of our society has little useful to say on these issues. Even when I ultimately may disagree with c/l solutions in other areas, at least there are serious and thoughtful critiques. But in land use (writ large) it appears to be baffled.

    There is _no_ serious critique of our land use systems (and do they ever need it) from the c/l side.

    I was simply laying down a challenge.

  27. P.S.

    Denial of the problem is not a serious response.

  28. David: Your argument proves too much because it can be made, with equal plausibility, about any industry. "We can’t deregulate agriculture because we don’t know what it would look like." "We’d better start regulating toothpaste, otherwise who knows what Colgate might come up with?"

    I also think you should specify what "problem" you mean. "Environmental quality" is a bit vague for my taste. If the "problem" is that you don’t care for the way cities and towns look now (under rigid zoning, I hasten to add), couldn’t it be easily rectified by simply appointing you land czar? Would that be any more unjust than allowing zoning boards to impose costs on people who get no say in the matter?

  29. A very interesting debate that I have stumbeled upon at a late date. I am very new to the internet technology and protocall of such discussions, but will try to chime in with another perspective anyway.

    It is my oppinion that you have it wrong with the Euclid case, perhaps due to the widespread commentaries that have continually mis-characterized it. I suggest 2 things – 1) place yourself in 1926 America; 2) read the official case and merely ask if their zoning was at least "reasonable."

    Pay particular attention to the following:
    a) nowhere does the case say governement can "take" property ("take" in the constitutional sense yet to be defined by the Court at the time – and an aside in this debate that distorts the following points I think are more relevant – If you want to talk takings, other cases frame it far better);

    b) nowhere does it say that seperating uses is good (in fact even in that heavy industrial period the Court – Judges no less not planners, policy makers, landowners or developers – had the forsight to question such a policy in several specific quotes). The the Euclid case stood for seperating uses is far off the mark. The City of Euclid zoning ordinance stood for this – the Supreme Court Euclid opinion did not; and

    c) notice how the public streets were the prime real estate reserved for what was at the time thought to be the best uses (i.e. single family). How far we have strayed from this now – due to our unregulated, market-driven (in-fact market-subsidized) gluttoney for the automobile at all costs. This more than anything is responsible for the miserable failure of the many Euclid-like zoning ordincnces. A different unregulated government subsidized market (transportation) has worked at devastating cross purposes with the regulated market (land). The bad regulation shares a small but grossly overexagerated role when discussed from a political philosiphy standpoint (i.e regulation = liberal vs. non-regulation = libertarian)

    In sum, the court merely held that zoning is valid…period. Not that seperating uses is valid, not that governement taking property is "enshrined", etc. etc. Merely that a democratic society has the means (and recourses if necessary) at the local level to regulate property for the common good – whatever they determine that common good to be. The fact that we have had 75 misserable years where our built environment suffered because we lacked the creativity to create better zoning ordinances and we (individual libertarians too) lacked the energy to demand better zoning ordinances through the legislative process is our own fault. Read Euclid – Justice Sutherland gave us plenty of warnings of the responsibility we have as citizens in stewarding our vluable, unreplenishable land resources.

    Welcome to the new melinium of land-use planning and implementation, where hopefully this is all changing quickly for the better. However, I am tired of people unrelentingly blaming Euclid when they don’t even understand it and are constantly mis-informed about it by commentators.


  30. I loved this article. I am wondering why there aren’t dual degree in Architecture and the Law at this point. I watched the documentary Garbage Warrior, and the point you make, becomes very clear in this documentary.

  31. One distinction that is rarely made is the one between form and function, use and style.

    It seems perfectly reasonable – and the law is supposed to be based on reason – that zoning regulations based on use would be sustainable. There are good reasons why a dynamite factory should not be built next to a preschool, for example. Wouldn’t you agree?

    But what reasonable basis is there to declare that a building in the “red style” should not be built next to one in the “blue style”?

    That’s the heart of the matter.

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