The Late Victorian period in the United States—roughly the last third of the 19th century—produced some of the most beautiful neighborhoods in the history of Western civilization. It also produced some of the most hopeless slums. In response to the crisis of industrial cities, the modern discipline of city planning emerged. The tools of this new profession helped clean up many unhealthy aspects of urban industry, but also stifled some of the best innovations of Late Victorian urbanism.

By the 1920s, planners in the industrial world had established the legal authority to promulgate land-use regulations, and over the next generation, they succeeded at slowing the construction of slum housing and segregating noxious industries from incompatible activities, such as housing and office space. Through some of the same devices, however, planners curtailed some positive features of 19th-century urbanism, including the rich variety of free-form industrial development and the adaptive responsiveness of such neighborhoods to the changing needs of a dynamic society.

In recent years, critics have lamented the parallel declines in beauty and functionality of newly built neighborhoods, and have sought to recover some of the best features of the Late Victorian city by mandating development styles that imitate its forms. The New Urbanism movement is the most salient example of this phenomenon. But far from being the products of a comprehensive legal process, the forms of traditional neighborhoods were the end result of a larger development context—one that has largely been forgotten.

The Late Victorian period is an object of admiration for many New Urbanists, and left a durable imprint on American urbanism before comprehensive zoning regulations began. By identifying the factors that shaped development in that the heyday of modern urbanism, we may begin to uncover how they interacted to build neighborhoods that people continue to love.

The Common Law and Urbanism in Late Victorian America

Today American law acts as the dominant factor shaping new neighborhoods. Prior to the onset of zoning, however, law was one among several factors that created the built environment. In the 19th century, a paradigm shift began to take place in the legal systems of the Anglo-American world. Statutes had coexisted with case law in the English tradition for many centuries, but in the early 19th century, statutes remained much less pervasive than they are today: The flexible doctrines shaped by courts through case law were broadly workable in agrarian societies. Partly in response to industrialization, and partly for other reasons, demand grew for greater specificity and predictability than case law could offer. One consequence was an ambitious effort to codify both the substance and procedure of law. During the 19th century, legislatures became more prolific, legal codes became more prominent, and case law began, more frequently, to interpret statutes rather than to expound on traditional rules.

The body of law that governs the physical development of real property did not escape the trend toward codification, although the result, modern land use zoning, did not crystallize until the early 20th century. Nevertheless, in the history of development there is a long tradition of formal regulation, which may obscure the importance of a key change in modern city planning.

Since antiquity, written codes have regulated construction in cities (e.g., to reduce risks of fire, collapse, and disease) and ensured the integrity of public rights of way. In the 19th century, such codes were at work American cities, and they continue to exist today, primarily in the form of building codes. The salient change, which tracked the modern trend toward greater codification, was the advent of the comprehensive regulation of land use. Unlike a building code, a zoning ordinance specifies permissible activities and limits development intensity for non-safety reasons. Thus, in the common-law world, one could see the advent of land-use zoning as an attempt to codify the prevention of nuisances. The increasing regulation of land use over the past century has diverted and reordered the powerful non-legal forces that once shaped development; when studying land development norms of the Late Victorian past, the silence of the law is often its most notable distinction.

Logic and Tradition as Positive Forces

In the more free-form legal context that developers enjoyed before zoning, one can imagine the formation of a new town. In an environment of light regulation, new settlements form as local variations on a general, logical pattern. Imagine any crossroads, for example, as the seed of a new town. A crossroads is logical, because it will experience more traffic than any non-intersecting point along either of its constituent thoroughfares, making it a good spot for a church, an inn, or a market. Better, still, is a crossroads near a secondary transport route, such as a river, harbor, or railroad track; or a crossroads near a natural resource, like a mineral vein or a hardwood forest. In some cases, chance or unique circumstances may determine why people initially select a particular point for a solitary outpost. Yet once a destination is established, the value of the adjacent sites increases by an order of magnitude: Now, this site receives the traffic for its newfound destination. With a second destination, the crossroads becomes the smallest kind of settlement.

From here, our settlement has the potential for continued growth. At some point, it may attract enough people to justify building a green or a forum. With foresight, the founders may reserve the last unoccupied angle of the crossroads for this use, as was done in the Roman tradition. If, instead, the designation of a common space is reactive, then it might be done a short distance up or down one of the two main roads, from which point it may eventually become a new center of gravity for the growing settlement.

If the trend continues, a logical course of action would be to build out a grid from the central locus to accommodate continued growth. Builders may extend blocks to establish the green shoots of this settlement pattern into the surrounding raw land. Over time, these activities may shape a pattern of neighborhood development with the economic and cultural forces that operate within it. This is because, in the absence of a formal planning process, towns and cities are living, responsive manifestations of the social lives, economies, and cultural norms of their people.

The Shaping Factors of Free-Form Urbanism

In contrast with the positive forces of urban genesis, an array of other, limiting factors presented forms of resistance that ultimately shaped the growth of neighborhoods. Most neighborhoods whose essential qualities survive from the late 19th century were not formally, centrally planned. One of the most interesting land use riddles—which should be at the heart of any inquiry into traditional town planning— is how the towns and cities of that period often achieved such good layout, massing, and general communication between diverse sites, given the much smaller toolbox of legal devices that controlled such phenomena prior to the early 20th century. Solving the riddle about what has gone missing in today’s development requires identifying the factors that fostered greater cohesion between urban parcels in the past. (This is a separate question from what caused the decline in quality of the architecture of individual structures and it goes much more to the essence of effective land-use planning.)

Five major constraints, or shaping factors, tempered the form of urbanism in its Late Victorian, free-form heyday. Bright-line distinctions did not always separate these factors. In fact, to a certain extent, their forces of influence tended to overlap.

1) The Topography and Dimensions of Development Sites

In the period before modern zoning, the layout of a new neighborhood was shaped by topography and subdivision. The former was mostly a given; the latter was done, as it is today, through the recording of plats, which showed the precise dimensions of new lots and rights-of-way. A typical American platting statute in the 19th century was enacted by a state legislature, and required filings to include a survey map; a written site description, with metes and bounds; a declaration of intent to subdivide the property; a scale and a compass; and the seal of a licensed surveyor or engineer. Publicly-owned lands could be platted by municipal authorities, while private lands could be platted by their respective owners, and multiple owners could jointly file for contiguous parcels. Issues such as street lines and zero-lot lines might have been addressed on a case-by-case basis. Notably absent from these statutes were any references to regulations pertaining to massing and land-use considerations. However, it was not unheard of for platting statutes to include an acknowledgment of the general police power over subsequent development. In areas of new growth, plats may have been initiated by the developers themselves.

In tandem with the human hand of subdivision, natural topography determined how individual sites could be developed. Steep slopes, watercourses, flood plains, wetlands, exposures to sunlight, and other factors could all present obstacles to the development patterns of a particular site. Of course, these topographic and environmental considerations have shaped the development of towns since antiquity.

2) Patterns Shaped by Contemporary Building and Transportation Technologies

Prior to the advent of railroads, any settlement not situated on a navigable waterway was limited to such commerce as could be supported by slow, overland routes, and the beasts of burden that traversed them. Accordingly, nearly every large settlement was situated on a seaport, a river, or a canal. And even within these maritime cities, intense development was viable only in proximity to the piers. Thus, the densest parts of old river cities as diverse as classical Rome, Elizabethan London, and 18th-century New York, tended to sprawl along their respective riverfronts, with their densest areas of settlement being essentially riparian and expanding in a linear, rather than concentric, pattern. Meanwhile, European cities with extensive canals, like Venice and Amsterdam, offer some of the most extensive examples of pre-industrial concentric urbanism, because their networks of artificial waterways served as capillaries for trade and the corresponding growth of dense urbanism.

During the second half of the 19th century, the growth of railroads played an outsized role in reshaping American land development patterns. With the advent of railroads, suddenly, vibrant towns and neighborhoods could be developed—and integrated into the larger economy—in proximity to any fixed stop along a track. Freed from its dependence on navigable waterways, the canvas of urbanism grew exponentially. On a local scale, streetcar lines, subways, and elevated railroads acted as arteries of urban growth that allowed the outward expansion from the central districts served by intracity rail. Yet, within this far-flung network rail-driven settlements, technological limits continued to exert pressure on developers to maximize land use efficiency on parcels close to transportation arteries. Most significantly, before the advent of motor vehicles, neighborhoods were still necessarily compact: A practical limit, walkable distances from rail lines, represented the continuation of a constraint that had existed in relation to navigable waterways since classical times. Thus, while railroads, including streetcars, expanded the canvas of urbanism, they did not so much disrupt the traditional patterns of cohesion within individual neighborhoods.

Accordingly, the period between the advent of railroads and the rise of motor vehicles (from about 1850 to 1910) was a historically unique period in the history of land development. In this era, urbanism could be economically viable in settings that lacked maritime commerce, and industry drove such development to countless new places. Yet the essential, intricate patterns of Western European urbanism were not threatened by sprawl. In contrast, the potential height of structures did grow significantly during this period. Large apartment buildings became increasingly common in New York, Brooklyn, Philadelphia, and other east coast cities, and the first skyscrapers took shape at the latter end of this era. Accordingly, this period became a sort of tabula rasa for free-form urbanism, in which traditional forms could admit variations and experiments—such as taller buildings, experimental architecture, and streetcar suburbs—that would not have been technologically viable in earlier times. Yet neighborhoods retained the compact scale of European urbanism that had shaped settlements since antiquity.

3) Common Law Principles

In the late Victorian period, covenants could be made between private parties pertaining to land use. The basic form of such covenants dates from the decision in Spencer’s Case, in 1583, though scholars have suggested that the principle itself may be much older than that. However, the early covenants applied to the assignment of leases, and not to successive owners in fee. In England, the modern form did not take shape until the 1848 decision in Tulk v. Moxhay, which confirmed that equitable remedies (e.g., injunction and specific performance) could be used to enforce such agreements; and that covenants could be enforced in the equity courts against successive owners in fee. In America, real covenants had been allowed by courts from earlier times. Thus, on both sides of the Atlantic, by the time the Industrial revolution was reaching its full force, a device was available by which private parties could limit the allowable uses of their land—and these covenants could be made to “run with the land”—providing some measure of protection, for certain parties, against the dangers of growing industry.

In a typical form, one parcel would be burdened while the other would be benefited. Thus, reciprocal covenants could be used to enshrine certain qualities in future development patterns. When tracts of rural land were subdivided into smaller parcels for town development, entire neighborhoods could be shaped by running covenants. In addition, such covenants could fill the vacuum—to some extent—that the common-law system had left in the land-use constraints on private property as industry became more noxious. Yet covenants were limited in their utility by their requirement of horizontal privity, which typically meant the covenanting parties had to begin by subdividing a single parcel. While the precise definition varied by time and place, this rule had the invariable effect of limiting the circumstances under which parties could create covenants that would bind their successors. Thus, even neighboring property owners who agreed upon the need for specific restrictions could not simply establish covenants that would bind subsequent owners, in the same simple manner by which they could enter into contracts.

Because covenants required the assent of both the burdened and benefited parties, they were also relatively useless in addressing the growing number of conflicts that arose as cities and industries grew. Until the onset of zoning laws in the early 20th century, the common-law nuisance case was the main legal device that parties could use to restrain the noise, pollution, and congestion created by industrial sites. Nuisance law was limited, however, by interpretive trends that led to all-or-nothing remedies (e.g., closure of a factory versus the continuation of its nuisances); and by an increasing tendency of the courts, in the industrial age, to weigh the societal benefits of an activity against the costs to the immediate neighbors of the purported nuisance. Thus, by the early 20th century, the failure of traditional nuisance law to effectively police the consequences of heavy industry had become a major factor in the push for clearer and more predictable land-use regulation. As noted above, the early zoning ordinances could be seen as a codification of nuisance law to address—and presumably avert—some of the most common disputes that arose in industrial cities.

Thus, private covenants, on one hand, and nuisance law, on the other, constituted the basic common law that governed private land use in the Late Victorian period. This decidedly non-comprehensive system fostered a liberal development environment within which individual owners were largely free to innovate and be resourceful in how they developed the land. In the rural settings where new towns were being settled, and at the edges of growing cities where new neighborhoods were being developed, there were often only the constraints of nuisance law and simple economics on builders. Moreover, within established neighborhoods, as changing economic and technological pressures gradually altered the types of development that would be viable, the constitution of the urban fabric was free to evolve much more organically and responsively than it would be under today’s heavier and more political regulation.

Describing the transition of neighborhoods from private homes to apartment and commercial buildings, a process that was once taken for granted, Frank Backus Williams counseled urban planners in 1922 that, “such changes usually cannot and should not be opposed, for the higher land values (attained for such purposes) generally indicate that the new use is of greater importance to the community[.]” Fundamentally, a property owner under the common law system had a great deal of latitude and—with a few exceptions—could build as he pleased on his land.

4) The Evolving Landscape of Building Safety Codes.

Common-law urbanism was also covered by a veneer of statutory laws. The most significant of these were various types of safety codes. Yet much of the statutory land-use regulation that existed in the Late Victorian period was similar in nature to rules that had shaped urban development since ancient times; and these laws, like their ancient forerunners, did not attain the pervasiveness and restrictiveness that would characterize later, modern zoning laws. The rationale for safety laws was, quite narrowly, the promotion of safety, and their scope was defined accordingly.

In Rome, Augustus limited the height of new residential buildings to approximately 68 feet, to reduce the risk of collapse in the city’s growing insulae, or apartment blocks. Likewise, during the Renaissance, buildings in Venice and Florence were limited in height. Following the Great Fire of 1666, the City of London enacted the first significant building codes in British history. While these examples of laws were all enacted to reduce various risks to the public safety, they had the collateral effect of shaping their respective cities in those places, like Classical Rome’s Suburra, or along the Grand Canal in Venice, or in the 17th-century City of London, where unrestrained development pressures would otherwise have promoted the construction of larger and more crowded buildings.

The enactment of safety regulations, which in certain cases limited and shaped the development patterns of private property, was not novel—and during the heyday of free-form urbanism, such safety codes continued to govern urban building practices to reduce the risks of fire, disease, or collapse. Still it is important to note that codes prescribing a maximum density were likely to be factors only in those exceptional places where development pressure was quite intense, and where economic pressures would support development intensity that exceeded a consensus about safe practices. (This limited impact stands in sharp contrast to modern American zoning laws, which prohibit the construction of safe, economically viable development patterns to protect the preferences and property values of current owners from the real estate pressures of an evolving marketplace.)

In late Victorian America, safety laws primarily addressed the usual culprits. Over time, however, local authorities found ways to discourage certain unwanted types of development through dubious applications of safety regulations. Frank Backus Williams captures this when he writes:

A favorite means in many communities of excluding the “three decker” (i.e., the three story tenement house, with an apartment to the floor, often covering an undue percentage of the lot) is to make the requirements for it so expensive that it cannot be built at a profit. The New York City tenement house law, passed in 1901, provided that all tenements over six stories in height should be fire proof, and later amendments have made the six story building proportionately more expensive than the five story structure. Chicago has for many years required all tenements over three stories to be of fire proof material. The result is that in Manhattan and other parts of the city, New York is prevailingly a city of six or five story residences, while in Chicago the three story type is the predominant one. At the time these fire proofing regulations were passed, a plain height limit prescribing such a maximum would have been difficult of enactment.

Thus, by the turn of the century, we can see that local officials were using safety rules to limit the massing of apartment buildings in dense cities; and we can imagine that this practice may have incorporated political objectives, in addition to safety objectives. But we can also see how limited the hand of the law remained: Even these constraints only came into play in locales where development pressure was sufficient to promote construction that exceeded the size of traditional neighborhood development patterns. When, in describing the impact of the New York tenement law, Williams writes about “other parts of the city,” he presumably refers to those exceptional places in the boroughs outside Manhattan where real estate markets would support development that equaled or exceeded these constraints. In contrast, in most of the outlying locales of Greater New York at the turn of the 20th century, the city’s regulatory discouragement of residential buildings exceeding five stories in height would have had little or no effect on the formation of neighborhood patterns.

Similarly, setback requirements were also more constrained in the heyday of Late Victorian urbanism, as they typically represented strips of land acquired prospectively, or reserved by easement, for future street widening. By the early 20th century, the potential use of setback requirements to forestall high-density development was understood. Yet, as Williams notes, planners at the time saw this as a secondary purpose, and a temporary device to preserve the low density of certain blocks until they had become ripe for more intense land development. He wrote:

[T]he change should not be made at the whim of one or two shortsighted or selfish land owners, who by building to the sidewalk force an immediate and general change against the interests of the street as a whole, and temporarily impair land values for the entire street. With a setback established, such a change is impossible until the city, in the general interest or the interest of the majority of the property owners on the street, removes the restriction and authorizes the change of use.

Thus, we again see a utilitarian exercise of the general police power that was applied, creatively, in the early 20th century, to circumscribe market activities that had previously been driven by a plethora of individual actors. In the heyday of Late Victorian free-form urbanism, it was the norm for individual property owners to build to the established street line when they intuited—correctly or not—that their neighborhood real estate market would reward such development. When the initial actors intuited correctly, and their hyperlocal market did reward such densification, other nearby actors would also step in to meet the demand. This was the force that shaped the development of the whole physical fabric of free-form Late Victorian urbanism. Even among planners who sought to constrain the chaotic effects of ad hoc activities by individual actors, there was a general understanding of the logic and desirability of organic urban growth, and the trend toward densification that occurs as result of intensifying development pressures.

5) Traditional Western European Concepts of Town Planning

Finally, tradition remained a powerful shaping factor in modern free-form urbanism. When examining the genesis of urban forms, it can be a particular challenge to separate the influence of tradition from the force of logic.

In spite of their functionality, some of the ubiquitous elements of traditional urbanism have a cultural provenance. The role of a crossroads in embryonic urbanism has ancient roots in European planning: The Romans formalized the generative significance of the crossroads early in the Republic. In new towns, and especially in frontier towns, a crossroads lay at the heart of the textbook Roman town plan. Two major thoroughfares, following initial surveyors’ lines, bisected the settlement into quadrants, roughly approximating the cardinal directions. Running north and south, the cardo was typically the main commercial strip of the town; while the decumanus maximus was its largest cross street, running roughly east and west. In the angle where they met was the town forum. But in spite of its formalization by the Romans, the simple mathematical logic of growth around a crossroads is too compelling to attribute its ubiquity to purely cultural factors. In fact, a crossroads lies at the historical center of many towns more ancient than the Roman republic. (The ancient Parthian capital of Ctesiphon is a good example; but there are too many other examples to count.)

The placement and significance of an open public square, serving as a gathering place, is unambiguously a product of cultural tradition. The Roman forum was heir to the Greek agora, which originated in tandem with the participatory political systems of the Hellenic city-states. Prior to classical antiquity, there is little evidence of true squares having existed. Likewise, the geometric grid, which produces a potentially infinite number of intersections and squares, is a product of fifth-century Greece (although less formal grids had developed earlier, and more organically, in towns of the ancient Near East). By the time of Imperial Rome, the forum was the established site for law courts, temples, political activities, festivities, and various commercial and administrative activities; and the grid was the textbook method for building out a new Roman town. One can still observe the basic Roman layout of cardo, decumanus, and forum at the ruins of Pompeii and Lepcis Magna, and elsewhere throughout the Mediterranean basin. Down through the centuries, the English carried on some of the major elements of this tradition, and the Mediterranean countries carried on others, the major distinction being between town greens in the Anglo-Saxon world, and paved plazas in continental Europe and Latin America.

Similarly, the formation of continuous street walls, the separation of cartways (now traffic lanes) from sidewalks, and the separation of uses between street levels and upper stories are all phenomena that came down to the modern city from the urban traditions of classical antiquity. Other elements, such as the densification of settlements with continued growth and the concentration (in larger settlements) of related activities in particular neighborhoods, derived from the simple logic of past practices. Yet irrespective of their cultural or practical origins, these traditions exerted both positive and limiting influences on how neighborhoods were developed in late 19th century America. While these forms presented the surveyors and builders of the industrial age with a template for how towns and cities should take shape, their pervasiveness may also have tended to discourage radical departures from the patterns that had characterized the familiar pattern of European urbanism since classical antiquity.

The Landscape of Development in Late Victorian America

Even if comprehensive land-use planning were eliminated today, the factors that influence development patterns would be very different from those of the Late Victorian period—as different as the factors in that time were from those that had shaped agrarian or maritime towns before the advent of railroads and heavy industry. Thus, one cannot presume that a radical liberalization of land-use regulation would lead directly to a renaissance of traditional neighborhood design. More likely, such a change would take land development into uncharted territory.

Consider that the most significant effects of automobile-driven sprawl occurred after the widespread adoption of zoning ordinances. In the absence of zoning, market forces might drive the densification of development in certain locales, such as the suburbs of major cities; but these forces would not necessarily produce organic development patterns—particularly in low-density regions—similar to the compact forms that characterized American neighborhoods in the Late Victorian period.

Perhaps of equal importance, the broad Western cultural norms that influenced urban development in the late 19th century no longer sustain a consensus in American society, and a century of adherence to formal regulations has vitiated many of the granular traditions that once shaped the work of architects, tradesmen, land surveyors, and lawyers. For these reasons, the large-scale and small-scale traditions that shaped the building patterns of that time are not necessarily within reach. Finally, it is important to acknowledge two very important successes of land use regulation—the end of widespread slum housing development and the segregation of noxious industry—either of which could be undone with a radical liberalization of land use regulation.

Today, achieving the kind of development environment that flourished during the Late Victorian period—and spawned walkable, diverse, and architecturally rich neighborhoods—would likely require a hybrid approach. It would need to incorporate certain elements of the more liberal development landscape that existed in late Victorian urbanism. But it would also be tempered by new forms of regulation narrowly targeting modern tendencies toward sprawl and homogeneity, while preserving the advances in city planning that have been attained over the last century. Yet a clearer understanding of the elements that helped shape the urbanism of another time may light the way as 21st-century planners seek to once again build vibrant towns and neighborhoods, places that reflect the greatest traditions of a free society.

Theo Mackey Pollack practices law in New Jersey, is a consultant on urban-planning projects, and has worked on Hurricane Sandy recovery projects in New York City. He blogs at Legal Towns, and has also written for the Metro New York Transit-Oriented Development Newsletter and the Steven L. Newman Real Estate Institute’s white papers series.

Copyright 2017 Theo Mackey Pollack