SYMPOSIUM

EXTENT OF POWERS OF PLANNING BOARDS

ADVISORY, LEGISLATIVE, ADMINISTRATIVE

A great deal of discussion has resulted from a paper on this subject given by Mr. George B. Ford before a joint meeting of the American City Planning Institute and the City Planning Section of the American Society of Civil Engineers on January 21, 1926. The Editors of CITY PLANNING have collected some of the comments and suggestions made at the meeting and later by correspondence, and now present a group of these statements in this symposium. References to "Laws Authorizing Planning Agencies" will be found in the October 1925 and January 1926 numbers of CITY PLANNING.

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THE CINCINNATI CITY PLAN IS NOW LAW*

By GEORGE B. FORD

CRUCIAL problem has come to the fore as a result of recent experience in Cincinnati with its city plan. For the first time in the United States, a complete comprehensive city plan has become the law of the city. The whole plan actually has teeth, thanks to the exceptionally broad powers granted to the city planning commission by the state laws and the city charter.

Elsewhere throughout the country, city planning commissions are strictly advisory. They rarely have any power except that in some states they have the right to control the layout of subdivision plats and in some instances they have art jury powers permitting them to veto the location of public works of art and sometimes to control the appearance of public buildings and structures. The Cincinnati City Plan Commission goes infinitely further than this, for under the statute and the charter there can be no departure from any item of the city plan, once adopted by the city planning commission, except by a two-thirds vote of the full membership of the city council, after public notice and hearing, accompanied by the approval of the department head most affected.

Therefore the problem, which deserves most earnest discussion, is whether our city planning commissions throughout the country, and our regional planning commissions as well, should continue to have merely advisory powers or whether extensive powers such as those granted by the Ohio Statute are really practical or desirable.

The general impression of those who are watching the effect of the Cincinnati method is that it is proving highly successful and a distinct improvement on the strictly advisory powers of most other planning commissions. It means that the presumption is in favor of the plan because it is the law and also because it has been worked out with a great deal of care and thought. It means that the obligation *Part of a paper presented at the Joint Meeting of the City Planning Division of the American Society of Civil Engineers and the American City Planning Institute, January 21, 1926.

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rests with anyone who wishes to depart from the city plan to prove that, all things considered, the city plan can be improved upon, and then the burden rests upon him to present a better solution and to convince the city planning commission or the city council that he is right. In other words, it means stability and carry to the plan as a whole; features which do not exist in anything like the same degree in most other states.

On the other hand, it is true that in a city like Memphis, Tennessee, the mayor and the city council, on account of their interest in the city plan, virtually give it the force of law and so it has a carry that approximates that of the Cincinnati plan in its ultimate effect; but this presupposes that there is a strong and continuing interest in the plan on the part of the leading city officials.

In Springfield, Massachusetts, the city council passed an ordinance that no city official or department should in any way depart from the city plan without first trying to secure the approval of the city planning board, and failing that, the approval of the city council. This method too has worked out well in practice, thanks to the activity of the city planning board and the general public interest in the plan, although again, the effectiveness of this method depends on a continuing active interest in the plan on the part of leading public officials.

The Cincinnati method has the advantage of continuing the effectiveness of the plan through changing administrations and even over periods of possible public apathy.

Personally I have felt until recently that the powers of a city planning commission should be purely advisory, but I am bound to say that in light of this recent experience in Cincinnati I am coming to believe that if city planning is going to be vital in the functioning of communities, the Cincinnati method should be applied generally to city and regional planning. Of course the success of this method in any particular case depends on the quality of the planning commission, but my experience in working with over one hundred different commissions convinces me that most of them would measure up to the job. In fact the very seriousness of the responsibility entrusted to them would inspire them to make the plan a masterpiece in which all would take pride.

THE OHIO STATUTE

By ALFRED BETTMAN

A city plan contains two main divisions: one relating to control of private property development-that is zoning; the other to the design for location of streets, public buildings and other public improvements.

In order that the zone plan may be enforcible, it must be translated into law, which is done by means of a zoning ordinance. That the enactment of law regulating private conduct shall not be within the power of appointive administrative bodies, but only within the power of the elective representatives of the people, such as council, general assembly or congress, is of the very essence of American govern

mental principles. The power to enact into law that portion of the city plan which deals with private property should, therefore, never be granted to a planning commission, but belong exclusively to an elective legislative body.

As regards the public improvements, the plan is a grand design to govern or influence the actual location of the improvements as they are built from year to year. It looks long ahead, a generation or two. A city council and the regular city administrative officials have their time, attention and capacities exhausted by daily and immediate problems and are subject to the current social and political pressures. By virtue of the very nature of their functions, they have not the capacity for the long-range, long-distance sort of task which is city planning. This task of a grand design, intended to influence the up-building of the city for one or two generations, needs to be performed by a body aloof from these daily current pressures, assisted by technical men equally aloof. Consequently, the making of the design can be appropriately and effectively reposed only in an appointive, administrative body like a planning commission.

The actual building of the improvements, including the locating of them, will be taken up from month to month and year to year and involve the raising of public funds by taxation or bonds and the expenditure of these funds. The power to raise and expend these funds belongs, under the American governmental system, to the elected representatives of the people, such as the city council, and should not be reposed in an appointive, administrative board such as a planning commission.

Consequently, the power to carry out the plan, whether by zoning regulations or by the actual locating and construction of public improvements, should not be reposed in the planning commission. The question arises, therefore, what effect upon council's determinations of zoning regulations or public improvement locations should be given to the city plan by law. The Ohio statute provides that council shall not violate or depart from the plan, until it shall have submitted the departure to the planning commission and, if the planning commission disapprove, a two-thirds vote of the members of council is required to carry out the departure. This is obviously giving the plan something more than merely advisory effect, but something less, in fact very much less, than binding or compulsory effect. This Ohio. legislation represents the best policy.

A city plan, no matter how well made, does not carry itself into execution. Its power to produce conformance in actual legislation or actual location of public improvements comes mainly from two sources, first, a comprehension of the plan by the legislative body, and second, the support of the plan by the people of the community. If council proceeds in the old way to locate public improvements and pass legislation with little attention to the plan, the plan will gradually die away. By forcing council into contact and discussion with the planning commission, whenever a proposal would depart from the plan, council will learn to realize the value of city planning and the merits of the plan. The requirement, therefore, that no departure from the plan may be put into effect without submission to the planning commission and that more than a majority vote must be obtained to override the planning commission, furthers this process of education.

Similarly, this compulsory controversy, so to speak, notifies the people of the city that a departure from the plan is under discussion and enables public opinion to be aroused and mobilized and to express itself. Giving the plan a legal effect something more than merely advisory, has, therefore, the effect of supplying the plan with a force, prestige and power which it would not otherwise have.

In stating that the Cincinnati plan has the force of "law", Mr. Ford is using an expression which, from the point of view of lawyers, is inaccurate. Law means a standard of action or conduct enforced by the courts. The Ohio statute simply gives the planning commission an influence somewhat analagous to the veto power of a mayor or other chief executive. If the mayor proposes a measure which passes in a shape disapproved by him, and he vetoes it, and the statute requires a twothirds vote of council to override his veto, no one would claim that the mayor's proposal has the force of law. The mayor's influence comes from his right to propose and his right to force a reconsideration and a two-thirds vote of council to override his proposal. Similarly, the city plan initiates, and a reconsideration and two-thirds vote is requisite to override it. The point is more important than a mere question of terminology. For if the notion is spread about that the city planning commission has the power to enact law, then sooner or later there will be a hostile public reaction against city planning. For while the exigencies of contemporary, complex urban life require that administrative bodies be given a regulatory power which in some degree approaches legislative power, still the fundamentals of democratic government require that, in the last analysis, legislative power shall remain in the elected legislative bodies.

ADVISORY POWERS AND PUBLIC COÖPERATION

By ARTHUR A. SHURTLEFF

Advisory powers exercised by able Planning Boards with competent advice have accomplished work of vast importance in the cities of this country. Thus far advisory powers in able hands have been strong without executive or legislative powers in shaping public opinion and in carrying important projects through. I think executive and legislative powers would weaken the hand and needlessly encumber the work of most planning boards. The thing most urgently needed at present is to awaken the public to a much fuller appreciation of the valuable work which planning boards can accomplish, and thus strengthen the powers of all the boards whose coöperation is needed to carry desirable public improvements through to the end.

THE IMPORTANCE OF THE QUALIFIED CONSULTANT

By THOMAS ADAMS

It is obvious that the execution of city plans is more important than their preparation. Regional plans need to be elastic, and regional planning commissions or committees advisory; but city plans should be prepared on definite lines for purposes of statutory application, and city plan commissions should have power to put them into effect. It is so in England, where regional plans have no legal power behind them and town planning schemes have the effect of Acts of Parliament.

That the plan of Cincinnati has become the law of the city is a significant fact. It is a sign of progress. Mr. George B. Ford and Mr. Alfred Bettman deserve all praise for their achievement, and the city authorities congratulations on their wisdom. The important question that still remains to be settled is whether the safeguards created to prevent undesirable changes are adequate for the purpose, or, alternatively, whether these safeguards will be so effective in preventing undesirable changes that they will prevent or delay desirable changes. The test will come when any considerable changes become necessary and decisions have to be made as to what are reasonable and proper changes under conditions that affect numerous private interests in property. No perfect plan can be made. Every plan should be capable of being adjusted to meet new conditions and new forms of growth. Therefore, next in importance to getting power to carry a plan into legal effect, and as part of the means needed to maintain the exercise of that power, there is required an expert judicial body having the knowledge and power to make suitable adjustments from time to time. Mr. Ford believes the average city plan commission will measure up to that standard. I doubt it, unless they retain a permanent consultant like Mr. Ford to advise them on all important issues.

The success of zoning in New York City since the resolution was passed has been due to the wise decisions of the Board of Appeals, following the expert guidance of Mr. Edward M. Bassett, in permitting changes to be made. The success of the Cincinnati plan will depend on the way in which the discretionary power of the City Plan Commission is used, in relation both to the Council whose powers have been delegated to it, and to owners of property whose interests will be affected.

What Ohio and Cincinnati have done is obviously sound in principle. It will also prove sound in practice so long as the City Plan Commission of Cincinnati retain a qualified adviser to assist them in maintaining the integrity of the plan and in preventing, modifying, or making changes. It may be that in many cities the city engineer will be qualified to give the necessary guidance to the city plan commission. When so qualified he is, in many ways, the best person to give this guidance, because he is always on the spot and is more familiar with local conditions than any outside expert can be. But too frequently he is susceptible to political or real estate influences. On the whole it is better that an expert be permanently retained to take the chief responsibility for important changes, but acting always in collaboration with the city officials. If this is done there should be no difficulty in proving that Cincinnati has done the right thing and has led the way in removing the greatest defect in city planning administration in America.