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RUSSELL SAGE
FOUNDATION
CARRYING OUT
THE CITY PLAN
THE PRACTICAL APPLICATION
OF AMERICAN LAW IN THE
EXECUTION OF CITY PLANS
BY
FLAVEL SHURTLEFF
OF THE BOSTON BAR
IN COLLABORATION WITH
FREDERICK LAW OLMSTED
FELLOW AMERICAN SOCIETY OF LANDSCAPE
ARCHITECTS
NEW YORK
SURVEY ASSOCIATES, INC.
MCMXIV
INTRODUCTION
The reason for preparing this book is the astonishing variation in
the practical efficiency of methods actually employed and prescribed
by law or legal custom in different parts of the United States in
acquiring land for public purposes, in distributing the cost of
public improvements, and in other proceedings essential to the proper
shaping of our growing cities to the needs of their inhabitants. Mere
variation in method would be of little more than academic interest in
itself, but variations that result in obstructing the path of progress
in one community and clearing it in another are of large practical
importance. The extent and significance of these practical variations
have impressed themselves more and more strongly on the writer in the
course of an extended practice as a landscape architect, especially in
connection with the design and execution of such municipal improvements
as parks, playgrounds, public squares, parkways, streets, the placing
of public buildings and the improvement of their grounds. Even more
notable than the variation in method and in relative efficiency has
been the close preoccupation of public officials, especially in the
city law departments, with 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, accompanied by an almost fatalistic acceptance of these
obstacles as a permanent condition. There has been evident in most
cities a very limited acquaintance with conditions and methods to be
found elsewhere, and a general lack of strong constructive effort for
the improvement of the local conditions and methods on the basis of
general experience. Of late years, however, there has been a growing
tendency to break away from this indifference and to face these
problems in a larger spirit.
Feeling the importance of stimulating and assisting such constructive
local effort by calling attention to the more important of the
variations in actual use, and lacking both the time and the legal
training to himself prepare a proper presentation of the subject, the
writer of this preface urged the Russell Sage Foundation, some three
years ago, to provide the funds for making a systematic survey of the
field and for publishing its results. The response was cordial and
effective and enabled Mr. Flavel Shurtleff of the Boston Bar to devote
a large part of his time for two years to the undertaking.
Mr. Shurtleff has done the real work of the book from beginning to end
and is responsible for its accuracy from a legal point of view. The
writer of this preface has been compelled to limit his collaboration to
a general guidance in the gathering and selection of material and its
arrangement for presentation, and to a somewhat careful and detailed
revision of the manuscript and proofs for the purpose of making the
impressions conveyed by the book conform in a common sense way with the
observations and conclusions to which he has been led in dealing with
actual problems of municipal improvement in many different cities.
There has been no attempt to compile a comprehensive treatise on city
planning; and some subjects properly within the title of this volume
have not, for many reasons, been examined with as great a detail as
their importance may seem to justify. This is particularly true of the
subject of building regulations.
Since city building is primarily a question of the acquisition of
land by the municipality, or else of the power to regulate its use
by others, the search for precedents in codes, reports, and legal
text books has been concerned with three well defined subjects: the
acquisition of land, the power to tax, and the police power. In respect
to these there has been no attempt to compile a complete digest,
but only to present the more significant variations revealed by a
fairly systematic and intelligent search. The practice of municipal
departments has been much more difficult to discover. The examination
of state codes and the results obtained from a questionnaire sent to
most of the larger cities in the United States made it possible to
determine upon a limited number of states as typical of the rest, and
by selecting the most promising cities in each state, to make up a
list of cities for study on the ground. The data obtained in one city
by consultation with city officials and otherwise often led to the
addition of a new city to the list. The following cities were visited
for a few days each: New York, Buffalo, Cleveland, Indianapolis,
Chicago, Milwaukee, Minneapolis, St. Louis, Kansas City, Denver, Los
Angeles, San Francisco, Portland (Oregon), Seattle, Houston, Dallas,
New Orleans, Baltimore, Philadelphia, and Pittsburgh. An opportunity to
make a more intensive study in one city presented itself in connection
with an investigation conducted by the city planning committee of the
Boston Chamber of Commerce into the methods employed in extending
the street systems in the metropolitan district of Boston, and the
information thus secured has been made use of in this report.
The material for the book was gathered between January, 1910, and
January, 1912, a time of extraordinary activity in city planning
legislation. Some of the text became obsolete before the book was
completed and some of the conclusions have been made a basis of
legislation during the past year (1913). Thus, Ohio has written into
its constitution the power of excess condemnation of land[1] and the
right to assess the cost of improvements on territory especially
benefited.[2] Massachusetts, New York, and Wisconsin have amended their
constitutions to incorporate the principle of excess condemnation.[3]
The Pennsylvania law of 1907, allowing excess condemnation, has been
tested and the supreme court has declared it to be unconstitutional.[4]
Plan commissions have been made mandatory in Massachusetts and have
been authorized in New York, New Jersey, Pennsylvania, and some cities
of Connecticut.[5]
This activity in the gradual and experimental reshaping of legal
mechanism will doubtless continue until it shall have been forged into
an instrument of much higher average efficiency than at present for the
accomplishment of the social purposes of city planning. It is as a help
toward the successful working out of this process that the present book
is offered.
FREDERICK LAW OLMSTED.
Brookline, Mass.,
30th April, 1914.
FOOTNOTES:
[1] See Appendix A, III, p. 280.
[2] Constitution of Ohio, Article XVIII, Section 11.
[3] See Appendix A, III, pp. 248, 278, 279.
[4] See Appendix A, III, pp. 272, 275.
[5] See Appendix, pp. 283, 284, 290, 294.
CHAPTER I
THE PUBLIC OWNERSHIP OF LAND
The ownership of land by the municipality is essential to the execution
of many parts of a city plan. Certain acts of private owners which have
a tendency to prevent the realization of a plan, either temporarily or
for all time, may be enjoined by municipal regulation. Certain other
acts in the furtherance of a plan may be induced by persuasion or
compelled by administrative pressure. But at an early stage land or
rights in land must be acquired for the public, and a municipality will
be called upon to consider, first, whether it has a right to acquire
or use land for a desired purpose; second, the methods of acquiring
the land; and third, the equitable distribution of the cost of its
acquisition.
THE RIGHT OF A MUNICIPALITY TO ACQUIRE AND HOLD LAND
It is well to emphasize at the start that the municipal ownership of
land is subject to important limitations in the United States. It is
customary to cite German examples of town planning and point out that
the success of the plan is due to the large percentage of land under
municipal ownership. German cities are encouraged to enter into the
real estate field for the avowed purpose of checking speculation,
and of reducing the over-crowding of lots, by releasing from private
ownership land for building purposes. However desirable this may be in
German cities, it is not permitted in any municipality in the United
States.
In Germany as well as in the United States the purchase money at the
disposal of any municipality is but the return from the taxation of
the citizens, and the income of all can be spent only for a use that
can be shared by all. German cities have reached a broad conception
of a “public use” and have emphasized in this conception the rights
of the community. The Constitution of the United States, on the other
hand, was written when the individual was paramount in philosophy and
politics, and the clause which protects the individual at the expense
of the community has proved an effective check to the democratic
tendencies which would substitute in importance the community for the
individual. Consequently a “public use” in the United States has been
more narrowly interpreted by the courts.
But new public needs have been recognized by the legislatures and
sanctioned by the courts since the growth of great centers of
population in the United States. To satisfy recreational needs the
appropriation of the community’s money has been authorized both for
the purchase and the condemnation of land for parks, boulevards, and
playgrounds. It is not inconceivable that more radical needs will be
recognized by legislatures and courts in the next twenty years. The
need for the protection of the community against the selfishness of a
few large property owners, for instance, may bring about the creation
of a municipal board representing all the people of a community as a
factor in the real estate market.
A municipality in the United States may become the owner of land
by gift, dedication, or devise, and may use such land for any
purpose whatsoever not inconsistent with the conditions of the gift,
dedication, or devise. But land or rights in land can be acquired by
the municipality out of public revenue only for a specific public
purpose, whether the acquisition be by purchase or by appropriation
under the power of eminent domain. If the city has acquired a complete
ownership in land either by purchase or appropriation, it may make any
use of the land so long as that use carries out some public purpose;
except in the jurisdictions where it has been held that a city has only
a qualified ownership which limits its right of use to the specific
purpose for which the land was acquired.
METHODS OF ACQUIRING LAND
1. ACQUISITION BY GIFT, DEDICATION, OR DEVISE
There is nothing to prevent a city from taking and holding land for
other than a public purpose, provided the tax payers’ money is not
spent in the acquisition or holding of the land for the desired
purpose. If in any specific case it were desired to grant real
estate to a city for a purpose not covered in the city charter,
the legislature would usually be found willing to pass enabling
legislation. The character of most municipal administrations has not
been promising enough to induce large holders of land to create trust
estates which cities shall administer for the benefit either of all or
of a certain class of their citizens; but there is nothing in legal
theory which would prevent the acceptance on the part of a city, as
trustee, of either real or personal property which the donor desires
should be devoted to a certain use; as, for instance, to the providing
of cheap and sanitary dwellings for its citizens. This is but one
illustration of what might be done by the city as trustee, but the
validity of any such trust would depend entirely on its administration
without expense to the city.
2. ACQUISITION BY PURCHASE AND CONDEMNATION
The acquisition of land by the city for an unrestricted purpose
either by gift, dedication, or devise is unusual, but its acquisition
out of public revenue, for other than a public purpose either by
purchase or by condemnation, is prohibited in all cities. In the
latter case the city may take a fee, which is complete ownership of
land, or an easement, which is the right merely to use the land for a
specific purpose and one which will be interpreted as “public.” These
restrictions on the right to acquire land by condemnation or purchase
have a decided influence on a city plan.
RESTRICTION TO A SPECIFIC USE
If land is acquired for specific purposes in accordance with a well
conceived city plan, and if the terms on which it is acquired prevent
its use in any manner inconsistent with these original purposes,
an important safeguard is thereby set up against an ill considered
abandonment of the original plan. A subsequent administration can not
then sacrifice the deliberate progress made along the lines of the
original plan by confiscating any of the land so acquired and diverting
it to the service of some new project which may for the moment seem
more important but for which the city is unable or unwilling to buy
additional land. Clearly this makes for a conservative stability of
purpose which is wholly in accord with the spirit of city planning.
On the other hand the normal and healthy modification of the city plan
to meet new conditions may be seriously hampered by any restriction
of municipal land holdings to a specific use. Owing to the great
physical changes due to the growth of a city the use for which land
was originally acquired may be entirely outgrown. This situation may
arise when land originally transferred to the city for park or school
purposes becomes absolutely unsuited for such use and useful for
another public purpose or for private corporations or individuals. It
is on the one hand undesirable to devote a considerable area to a use
which prevents the best all-round development of the city,—commercial,
industrial, and residential; it is equally undesirable to allow a
decrease in park or school lands except for the best of reasons.
Cities have adopted at times a very short-sighted real estate policy.
They have sold their valuable holdings at a low figure, have seen the
buyer realize a tremendous profit, and have been obliged to purchase
sites at a greatly increased figure when by retaining their holdings
they would have had adequate land for their needs. Buildings have been
planted in parks in the supposed interest of economy, and by filling up
the site the building has been robbed of distinction and the people of
needed open space. Such offenses against good taste and true economy,
which are two of the compounds of city planning, are committed even
now when the need of parks is more fully recognized by the public
and is being championed by the press. This mistaken idea of economy
probably explains the location of many city halls, in cities large and
small, in downtown squares where open spaces should be preserved for
the benefit of the community and public buildings arranged to face
upon them. Worcester, Massachusetts, used part of its old common for a
city hall; Philadelphia appropriated for the same purpose one of the
public squares set aside by William Penn; the city hall in St. Louis
occupies six acres that were once a public square; Charleston, South
Carolina, whose city hall dates from early times, took for its site one
of four small parks; Pittsburgh placed on land originally used as a
public square two market buildings; Delaware Park, in Buffalo, has been
encroached upon by an art gallery and historical building in a manner
seriously impairing its value for the purposes which controlled its
original acquirement; another five-acre park in Buffalo has been used
in part for a school house site.
These are instances where good city building demands the protection
of the original purpose through stringent limitations on municipal
authority. But it would be unfortunate if park lands or any other
public lands which have become unsuited for their original purpose, or
which even though still suitable would block a desirable change in the
city plan, could not be diverted to a new use without too great expense
or delay. Some public lands are easily leased for a long term at good
rentals and may thus bring in an income which, if applied to the
purpose for which the lands were originally acquired, would accomplish
more than the direct use of the land itself. The return from former
school house property now in the retail section of Chicago swells the
school funds by $637,569 every year. The appreciation of one lot at the
corner of La Salle and Adams Streets, bought for $8,750 for purposes of
the water department and now occupied by the Rookery, is $2,142,000.
The trouble comes when, for instance, the plans for a new civic center,
as in Cleveland, provide for a union terminal station on park land, or
where Chicago wishes to locate a Field Columbian Museum in Grant Park.
Controversies aroused by cases like these only after years of delay
reach the supreme court for a determination of the conflicting rights
of the city and the grantors or their heirs. The principles as evolved
from cases that have been decided recognize clearly a distinction
founded on the legal character of the ownership of the land in question.
CASE 1.—Where the city has acquired merely a right in the land, for
instance a right to use the land for park purposes, and the ownership
has remained in the grantor, there is a unanimity of decision that
the land must be used for park purposes only, and that any other use
operates to leave the land in the ownership of the original grantor
free from the incumbrance of the city’s use. This reversionary right
may be purchased or, if necessary, condemned, since the power of
eminent domain is paramount to any kind of ownership, but it must be
paid for.
CASE 2.—Where the city has acquired all right, title, and interest in
land by condemnation, it is the law in New York, at least, that the
legislature may change the use and provide even that land formerly used
as a park may be conveyed to private individuals or corporations for a
private use.
In the case of Brooklyn Park Commission _vs._ Armstrong, 45 N. Y. 234,
the city of Brooklyn had acquired a fee simple—absolute ownership—by
condemnation to lands which were to be henceforth used as Prospect
Park. Subsequently when the park plans were more fully developed it
was found best to include some additional lands and exclude some of
those originally acquired. The city sold one lot to the defendant, who
refused to take title on the ground that the city could not convey a
clear title. The court held that since the title was received in trust
for an especial public purpose the city could not convey without the
sanction of the legislature, but that it was within the power of the
legislature to relieve the city from the trust and authorize it to sell
and convey:
“Doubtless in most cases where land is condemned for a special use
on the score of public utility, the sequestration is limited to that
particular purpose. But this is where the property is not taken but
the use only. There, the right of the public being limited to the use,
when the use ceases the right ceases; when the property is taken,
though a particular use may be abandoned, the right to the property
remains.” “The public had the right of the land in making payment, and
as soon as the owner was paid he was disseised. There is no reverter.”
“By legislative sanction, it may be sold, be changed in its character
from realty to personalty, and the avails be devoted to general or
special purposes.”
Cases in other jurisdictions which seem to establish a different
rule, namely, that the legislature can not divert property held by
a municipality in trust for one purpose to another and inconsistent
purpose, will be found to depend on the language of the particular
statute or to be based on the conception that the complete ownership
was never in the municipality.
CASE 3.—The most perplexing situation arises where the land has been
dedicated in fee for a particular public use, as for park purposes. The
state of the law in this situation is by no means clear. Various state
courts have come to different conclusions.
The Ohio court, in the case of Louisville and Nashville Railroad
_vs._ Cincinnati, 76 Ohio St. 481, held that when a common, legal
title of which was in the city in trust for its inhabitants, was no
longer desired or the purpose for which it was dedicated was no longer
obtainable, it would revert to the dedicator. But the Minnesota court
in City of St. Paul _vs._ Chicago, Milwaukee and St. Paul Railroad, 63
Minn. 330, concluded that in attempting to divert property dedicated in
fee simple for a specific purpose, the property would not revert to the
dedicator but that the act of the legislature would be a mere nullity.
The most surprising decision on this point is that of South Park
Commissioners _vs._ Ward, 248 Ill. 299. The case arose out of an
attempt by the South Park commissioners of Chicago to locate the Field
Columbian Museum in Grant Park.
The park had been dedicated forever to the use of the public by a
platting in accordance with which there had been sold certain abutting
lots, some of which had come into the possession of the defendants Ward
_et al._ The right of the owners of the abutting lots to keep the park
free from buildings was by a special statute of 1861 made enforceable
by a bill in equity. Subsequent to 1893 an area many times the size of
the original park was added to it by filling into Lake Michigan. The
district abutting on the park had also undergone a radical change from
its original residential character. The commissioners decided in 1909
to locate the museum on the addition to the park but were enjoined by
Ward _et al._ The commissioners then proceeded under an act of 1903
which authorized them to condemn the rights in the park possessed by
any lot owners under the original conveyance, but the petitions brought
to condemn these rights were dismissed in the superior court.
In sustaining the decision the supreme court of Illinois held:
“If the legislature had no power to change the uses of Grant Park
and to disregard the terms of the dedication by authorizing the
erection and maintenance of buildings in the park, there could be no
condemnation of the rights of the defendant that the park should be
kept free from buildings whatever the nature of such rights might be.”
This decision is a denial of the sovereign power of eminent domain as
is pointed out in the strong dissenting opinion. If the legislature
could appropriate by eminent domain the property comprised in Grant
Park before it was dedicated, it is impossible to see why it could not
do the same thing after it was dedicated. Whatever the rights of the
original dedicators or their heirs or those holding contract rights
under them, those rights can be taken under the power of eminent domain
like any other property right in any other jurisdiction but Illinois.
To avoid legal complications in the event of a change in use it is not
enough to have inserted in the original dedication “for the use of
the inhabitants as a park _or for any other public use which the duly
constituted authorities shall ordain_.” Even under this provision,
lands held in complete ownership by the city might become so dedicated
to a specific use that the public, and perhaps in some jurisdictions
private interests, would gain rights which later must be condemned if
the land were desired for a different public use. This was the case
in State _vs._ Woodward, 23 Vt. 92. A certain town had full ownership
in a piece of land which could be used for any public purpose. An
uninterrupted use by the public as a public common for twenty years had
been allowed by the town, and the town survey described the land as a
common. The court held that these facts amounted to a dedication of
the land to the public use as a common, which was irrevocable. Cities
must therefore be as guarded in preserving their control of the use of
property as dedicators must be in the language of their grant if they
wish to avoid restricting it to a special use.
Since such restrictions may either be valuable in maintaining a
consistent city plan or may seriously impair the proper flexibility of
such a plan, no general rule can be laid down as to their wisdom. They
have proved an important protection in the case of many raids on park
property, but it would seem that at least some portion of the lands
acquired by a city ought to be readily transferable from one use to
another without the delay and expense imposed by such a safeguard.
THE ACQUISITION OF LAND FOR A RESERVE ACCOUNT
The procedure in condemnation and the practice in purchasing prevent a
city from taking advantage of the many opportunities which it has of
becoming possessor of lands at an advantageous price, even though the
need for such lands may be only a few years distant. In appropriating
land against the will of its owner the purpose for which the land is
acquired must be specified, and that purpose is closely scrutinized in
some states by a jury which must find that the acquisition is necessary
before the city can take further steps. In purchasing, cities usually
come into the market for land, particularly for the sites of public
buildings, when prices are high, a procedure which no well conducted
business corporation would adopt. Bargains in land are taken advantage
of only rarely and only indirectly. It is possible to buy small areas
for one purpose and later use them for another; but there is little
purchasing on the part of cities for what might be called a reserve
account, although a very accurate forecast can usually be made of
needs for lands for various public purposes based on the direction
and rate of growth of the population. Considerable areas, to be sure,
may be purchased for park lands and later, by authorization from the
legislature, be diverted in part to other uses, thus accomplishing
the purpose by indirection; but this is a bad public policy since it
makes park lands, even when they become inadequate in area, subject to
unlimited inroads in favor of any and every other purpose.
How much money might be saved to the city by purchase of land at
favorable opportunities in advance of actual need is apparent in any
city from the increase in property values due to growth in population.
The congestion commission appointed by the mayor of New York in 1911
looked into the value of 943 city sites and found that the assessed
value in 1908 in 537 cases had increased in value over the price paid.
Table 1 shows the percentage of increase in the values of these sites.
TABLE 1.—INCREASE IN VALUE, FROM DATE OF ACQUISITION TO 1908, OF 537
PUBLIC SITES IN NEW YORK CITY, ACQUIRED FROM 1812 TO 1900[6]
=======================================+=============
| Sites which
| increased
Per cent of increase in value of site | in value as
| specified
———————————————————————————————————————+—————————————
Less than 25 per cent | 91
25 and less than 101 per cent | 154
101 and less than 201 per cent | 94
201 and less than 301 per cent | 42
301 and less than 401 per cent | 43
401 and less than 501 per cent | 17
501 and less than 601 per cent | 18
601 and less than 701 per cent | 10
701 and less than 801 per cent | 12
801 and less than 901 per cent | 10
901 and less than 1,001 per cent | 6
1,001 and less than 1,501 per cent | 11
1,501 and less than 2,001 per cent | 10
2,001 or more | 19
———————————————————————————————————————+—————————————
Total | 537
———————————————————————————————————————+—————————————
The dates of acquisition of the sites considered in the table varied
from 1812 to 1900. Of the 406 pieces of property which showed no
increase over purchase price, 230 had been acquired since 1900.
The committee pointed out that the city could do a great deal of
purchasing for its park and playground accounts, even in comparatively
unsettled districts, and these holdings would have influence in the
carrying out of a city plan. The same is true of the purchase of land
for school house sites. It has been very generally agreed that at least
30 square feet should be provided for every pupil registered in the
city schools, but it is safe to say that very few cities have bought
land to this amount. In 1905, Manhattan borough, New York City, lacked
65 acres for school houses alone on this basis. Almost 3000 acres
were needed for playgrounds in boroughs outside of Manhattan, while
Manhattan itself was hopelessly behind its recreation requirements.
It would be a very good investment for New York as well as for any
other city in the United States to buy school house sites at 43 cents
a square foot, the price for which they can be bought in the borough
of Richmond, instead of at $10.69 per square foot, which they cost in
Manhattan.[7]
But it is impracticable to determine far in advance exactly which will
be the best sites for schools and which for other purposes. All that
can be safely said is that the total land needed for miscellaneous
local uses will be at least equal to a certain minimum, and the
acquirement of that minimum area by the city from time to time as
favorable opportunities arise is a wise policy—provided that its
ownership by the city does not withhold it for a long time from
economic use pending its assignment to definite public service.
Both San Francisco and San Diego have saved considerable money by
the inheritance from their Spanish founders of so-called “pueblo
lands,” which they have in part used as parks and public building
sites, in part have sold, and in part retain as an unapportioned
reserve. Chicago’s investments in sites on Dearborn, State, and Clark
Streets are returning large dividends and would yield much more if the
rentals were graduated in accordance with increasing ground values.
Los Angeles is proposing to use some of its landed inheritance for a
housing experiment. If its plan is carried out, the city would loan the
land, and the construction and maintenance of the houses be privately
financed.
Limitations in law and practice on the power of the city to acquire
land are for the protection of the tax payers against official
extravagance and corruption. But finance commissions have well checked
many kinds of municipal waste, and they can as effectively prevent
a misuse of the purchasing and condemning power. City building can
undoubtedly be carried out more economically through the purchase of a
reasonable amount of land by the municipality for a reserve account.
THE ACQUISITION OF LAND FOR AN ESTHETIC PURPOSE
By an amendment to the charter of the city of St. Louis in 1901, the
right was given the municipal assembly of St. Louis by ordinance to
“prohibit the erection or establishment or maintenance of any business
house or the carrying on of any business vocation” on property fronting
on a boulevard which might thereafter be opened.[8] By an act of the
legislature of Massachusetts in 1898, buildings “now being built or
hereafter to be built, rebuilt or altered” on land abutting on a
public square known as Copley Square, in Boston, were limited to the
height of 90 feet.[9] By a bill presented in the national house of
representatives in 1910, the commissioners of the District of Columbia
were authorized to designate certain streets or avenues within the
District as Class A highways, and on such highways to establish certain
special restrictions which might include the prohibition of any kind of
business, and might require that buildings should be of certain height,
certain materials of construction, and of such architectural design “as
shall secure the beautiful and harmonious appearance, as viewed from
the public streets, of all structures to be erected or altered on land
to which said restrictions shall apply.”[10]
In all this legislation provision was made for compensation to
owners for the right in land thus taken, and herein the legislation
partakes of the character of ordinary eminent domain statutes. But the
interference with private property which this legislation authorized is
at least an unusual application of the power of eminent domain, if not
an extension of it for a new purpose.
The condemnation of private property for parks, playgrounds, and
boulevards has been upheld as justified in the exercise of the power of
eminent domain, but the decisions are for the most part very careful to
point out that esthetic purposes were merely incidental, allowing the
inference to be drawn that the taking would not be justified for purely
esthetic reasons. Under the legislation cited, developments of private
property may be to a considerable extent controlled, bill-boards may be
abolished, structures may be limited in height, the design of private
buildings may be modified, solely in the interest of the public’s sense
of beauty.
The only precedent that has been cited to support the validity of
the right in the public which is asserted in this legislation is the
Massachusetts case of Attorney General _vs_. Williams, 174 Mass. 476,
decided in 1899. This case arose under the Massachusetts statute of
1898 above cited. The defendants were owners of a building abutting on
Copley Square, Boston, which had been built in violation of the statute
prohibiting the construction of buildings above 90 feet in height on
this square. The action was brought to restrain the maintenance of the
building at the height above the statutory line. The court decided that
the statute was constitutional and that the height of the building
should be made to conform with the statutory provision. The language of
the court has been generally interpreted to mean that rights in private
land and buildings in the nature of an easement may be taken by eminent
domain solely for the protection of the public’s esthetic sense.[11]
“It hardly would be contended that the same reasons which justify the
taking of land for a public park do not also justify the expenditure
of money to make the park attractive and educational to those
whose tastes are being formed and whose love of beauty is being
cultivated.... It is argued by the defendants that the legislature
in passing this statute was seeking to preserve the architectural
symmetry of Copley Square. If this is a fact and if the statute is
merely for the benefit of individual property owners, the purpose
does not justify the taking of a right in land against the will of
the owner. But if the legislature, for the benefit of the public
was seeking to promote the beauty and attractiveness of a public
park in the capital of the Commonwealth and to prevent unreasonable
encroachments upon the light and air which it had previously received,
we cannot say that the law-making power might not determine that this
was a matter of such public interest as to call for an expenditure of
public money, and to justify the taking of private property. While
such a determination should not be made without careful consideration,
and while the growing tendency toward an enlargement of the field of
public expenditure should be jealously watched and carefully held
in check, a determination of this kind once made by the legislature
cannot be lightly set aside.”
The court says merely that the taking of private property is justified
to promote the beauty of a park and prevent encroachments on its light
and air. It is very doubtful if any broader meaning should be given to
its language, but, if it is, it is believed that there have been no
decisions in other jurisdictions involving the same principle. If the
decision is generally followed it will be no great extension of this
principle to declare constitutional the legislation previously cited
which has been enacted in Missouri and proposed in Washington. It may
be as clearly for the benefit of the public to promote the beauty of a
street or boulevard, as is attempted by the St. Louis and Washington
legislation, as to promote that of a park, which was declared to be one
of the aims of the Massachusetts legislation in Attorney General _vs_.
Williams. Education may so increase esthetic sentiment as to compel
a general extension of the power of municipalities to interfere with
the rights of owners for purely esthetic reasons, just as education
compelled a judicial sanction of the right to take private property for
purposes of public recreation. The framing of an esthetic test which
will adequately protect the sense of beauty and still withstand the
assaults of property owners, will puzzle the most astute law makers.
An impartial administration of the newly sanctioned power will also
be difficult. Neither of these difficulties, however, will stand in
the way if the public demands a universal recognition that esthetic
purposes are sufficient to justify condemnation.
FOOTNOTES:
[6] Report of New York City Committee on Congestion of Population, p.
49 and Appendix. (Appendix is in manuscript.)
[7] Op. cit., p. 56.
[8] See Appendix, p. 211.
[9] See Appendix, p. 218.
[10] See Appendix, p. 213.
[11] See text of decision, Appendix, p. 219.
CHAPTER II
THE ACQUISITION OF LAND
The great obstacle to the execution of any plan, whether for the
orderly extension of a city or for the reconstruction of its older
sections, is usually the expense of acquiring the necessary land. This
difficulty may arise because the cost of the land is excessive, due to
bad methods of acquisition, or because the cost of land acquirement is
unfairly distributed. Either or both of these conditions will place
an excessive burden on the tax payers. If this cost must be borne
wholly or mainly by the tax payers at large while a few land owners
absorb a wholly disproportionate share of the financial benefit from
the improvements, there will result a strong popular sentiment against
such improvements, and a city government that is at all responsive will
refuse to undertake them, even though the city as a whole may suffer
for lack of them in the long run.
We are considering here only well conceived plans, the execution of
which will be a real advantage to the community as a whole if the
initial difficulties of financing them can be overcome. The execution
of any plan which would result in a net damage or loss to a community
can not properly be called an improvement. A real improvement is an
investment on which the return to the community may be immediate or may
be deferred.
The financial problem in acquiring land for any contemplated
improvement is, therefore, in the first place, to avoid excessive cost,
and in the second place, to distribute the cost in an equitable manner.
To determine whether the city is paying an excessive price for land,
a careful consideration of the details in condemnation procedure is
essential.
PROCEDURE IN THE CONDEMNATION OF LAND
The extraordinary right of the community to take private land even
against the will of the owner necessitates extraordinary protection
to the individual. This protection is written into every state
constitution excepting that of North Carolina, and the clause is
interpreted, not as a declaration of the power of eminent domain, which
is inherent in sovereignty, but as a limitation on that power. This
protection is further guaranteed to the citizens of every state by the
Fourteenth Amendment of the Federal Constitution. Private property
can be taken for a public purpose only after “due legal process”
and the payment of compensation, but the guarantee of the Federal
Constitution does not compel uniformity in the provisions of all
states. “Due legal process” in condemnation proceedings is satisfied
by a great variety of statutory requirements, the only essential being
that they shall contain provisions for determining compensation, for
giving proper notice, and for hearing remonstrants. On the methods of
determining these three essentials depend the simplicity and economy of
condemnation procedure.
Most states give the further right to the land owner at some stage of
the proceedings of having his compensation ascertained by a common
law jury. In the absence of specific language to that effect it is
generally held that the owner has no right to a jury in land damage
cases, since at common law before 1787, in both England and America,
compensation in such cases was ascertained by other tribunals without
the right of appeal to a jury of twelve. Constitutions giving in
general terms a right of trial by jury are interpreted to refer only
to such cases as were tried by jury at the common law. Many states,
however, have granted jury trials in eminent domain cases by statute,
while other states have construed clauses of their constitutions as
applicable to eminent domain proceedings and have allowed a jury trial.
The method of ascertaining the compensation is the first consideration
of a municipality endeavoring to reduce the cost of taking land for
public purposes, but the other elements of “due legal process” are
responsible for much of the delay in condemnation procedure and may
affect considerably the amount of compensation. Every hearing requires
either a notice to property owners or legal service in hand, by mail,
or by publication. After every hearing, time must be allowed for
protest and appeals and the report of every hearing must be published.
As the hearings grow more numerous the expense of advertising becomes
a large item, and every addition to the length or complexity of the
procedure involves an increase of counsel and witness fees or other
legal expenses. Consequently, the elimination of any one of the steps
in condemnation procedure has an important bearing on the question of
reducing the size of the city’s investment. We may best consider the
provisions for notice and hearing together.
PROVISIONS FOR NOTICE AND HEARING
After authority has been given by the proper administrative body, the
steps in condemning land for public use are notoriously many before the
city can take possession of the land. Property owners are given not one
day in court for the protection of their rights, but many days.
1. INITIAL PROCEEDINGS
MILWAUKEE. After the city council passes an ordinance authorizing the
taking of land by eminent domain, there must be first, a finding by
a jury of 12 that the taking is necessary for public use; second, a
hearing before the board of public works on the question of damages;
and third, there may be an appeal from this hearing to a jury which
reviews the entire evidence. The following docket entries were made in
a normal street opening case:
Sept. 30, 1907, first resolution of common council referred to
committee.
Oct. 14, 1907, first resolution adopted by common council.
Oct. 15, 1907, first resolution approved by mayor.
Oct. 28, 1907, second resolution adopted and approved.
Feb. 17, 1908, third resolution adopted and approved.
May 7, 1908, proof of publication and service of resolution on land
owners returned to court.
May 16, 1908, list of owners filed.
May 23, 1908, jury sworn and premises viewed.
June 5, 1908, jury hears evidence and returns a verdict that the
opening is a public necessity.
July 2, 1908, papers in the case go to the board of public works for
award of damages after the hearing of evidence.
Thus, in a typical Milwaukee street opening almost a year elapses
before the point of beginning to ascertain compensation is reached.
LOS ANGELES.[12] The city council passes an ordinance of intent to
take private property by eminent domain and sets out the purpose for
which the land is to be taken. The ordinance is published and thirty
days are given for protest, either against the taking or against the
district which has been marked out as benefited by the improvement. A
protest against the improvement from the owners of a majority of the
frontage of property proposed to be taken or damaged puts an end to
the proceedings, and the improvement can not be initiated again for at
least six months except on petition by the owners of a majority of the
frontage. Not until the protests have been disposed of can the city
council proceed to pass an ordinance authorizing the filing in court of
a petition for condemnation. Sixty days from the time of the passing
of the ordinance are allowed for filing the petition, and the details
required in the petition are such that even this time usually has to be
extended. It is impossible for the city to acquire land in less than a
year.
MINNEAPOLIS.[13] The first hearing on the question of damages under
the park procedure in Minneapolis is held before five appraisers
appointed by the park commissioners. The second hearing is before
the park commission. At the second hearing the park commissioners
consider objections to the appraisers’ report on the ground either
of irregularity in the proceedings or of inadequacy of the award of
damages. The third hearing is before the court on the question of
irregularity of the proceedings. The fourth hearing is before three
appraisers appointed by the court to review the evidence and bring in a
report on the question of damages. If this appraisal is unsatisfactory
there may be even a fifth hearing before three new appraisers,
but in the practice of the present counsel for the board of park
commissioners, which has extended over several years, there has been
only one instance of the court’s granting this fifth hearing.
ST. LOUIS. In St. Louis there is a curious anomaly making for delay.
Ordinarily the findings of the eminent domain commission are taken
up on appeal to a justice sitting without a jury, but a corporation
is allowed to appeal to a common law jury on the question of damages
although not on the question of benefit. It is not infrequent for the
appeal of a single corporation to result in a jury’s overthrowing
the finding of the eminent domain commission in respect to one item,
in which case all the work of the commission goes for nothing. A
new commission must be appointed and the evidence must be entirely
reviewed. A corporation has the same right in Kansas City but, by
statute,[14] it must exercise that right before the eminent domain
commissioners report, and if it elects to have its damages assessed by
a jury the commissioners have no jurisdiction over that part of the
case, but accept the finding of the jury and incorporate it in their
own report.
DENVER. In Denver, where in other details the condemnation procedure
is satisfactory, there is much time wasted over the formality of
notice and hearing. After the passing of the ordinance and the formal
negotiation by the mayor for the purchase, a petition is brought in
the district court. Two months, at least, are required for service on
residents, and a month more for publication on absent defendants. The
hearing is then begun before the commissioners, who are allowed thirty
days to report, but this time can be extended. Thirty days are allowed
for the publication of the report and thirty days more for the filing
of petitions by parties interested. These petitions are usually tried
out by a common law jury, but may be heard by a jury of six. It is
impossible for the city to get possession of land inside of a year and,
where many property owners are involved, much more time is required.
CHICAGO. In Chicago, where land for streets is commonly dedicated
without expense to the city, the only considerable taking for street
purposes in the past fifteen years was in connection with the widening
of Randolph Street. The docket entries show that the ordinance was
passed March 16, 1903, and the petition filed in court in June of the
same year. The commission was appointed in July, 1903, and finished its
work in September, but the time allowed for petitions and the actual
trying of these petitions by jury so delayed the proceedings that an
order of possession was not issued to the city until June, 1906.[15]
OREGON. In contrast with the cumbersome methods illustrated above, the
state code of Oregon shows the possibilities of a more direct method
of condemnation procedure.[16] Without preliminary notice or hearing a
petition is filed in court and issues may be joined within fifteen days
before a common law jury, and even in cases of non-resident owners the
interval between the filing of petition and the trial before the jury
is not over two months. The city may come into possession of the land
within two months after filing the petition, unless the court docket is
crowded. Delays are occasioned chiefly because of insufficient judges.
2. APPEALS TO HIGHER COURT
Even after the award of damages is finally determined by a court
sitting with or without jury, a hearing on appeal is allowed on
questions of law in condemnation cases as in any other civil case.
Such appeals are relatively infrequent, because the determination by
the legislature that a proposed taking is for a public use is held not
appealable, and because a finding of fact by the lower court on the
question of damages will not be disturbed unless there is evidence of
gross error or fraud. The questions that go up to the supreme court
usually are:
1. Is the statutory provision under which property is condemned
constitutional?
2. What is the legal meaning of the language of the statute?
3. Have the municipal authorities strictly complied with the details of
the procedure as outlined by the statute?
4. Is the rule of damages as announced in the lower court inequitable
either to the city or to the land owner?
The additional expense of appeals to a court of last resort can not
be avoided; but possession of land by the city should not wait on the
outcome of this appeal, particularly where the only question in issue
is the amount of damages. It is the law of most jurisdictions that
ownership of the land passes to the city on the payment of the final
judgment in the lower court.
THE TRIBUNAL
1. A SPECIAL BOARD SUBJECT TO REVIEW BY THE COURT WITH JURY
A common law jury is apt to lack the knowledge of real estate values
and the experience in handling technical evidence which are important
in the tribunal which is to ascertain the compensation in land damage
cases, and therefore most condemnation codes provide a special
tribunal. Some of the codes also see the necessity of a tribunal as far
removed as possible from the influence of the parties to the suit and
provide for its non-partisan appointment, usually by the court which
has jurisdiction over the proceedings. There is a wide difference in
the character of these judicial commissions in different cities and
even in successive commissions in the same city.
DENVER. In the opinion of the city attorney’s office, Denver gets
excellent commissioners, or appraisers as they are called. The
procedure is a semi-judicial one from the start. The petition is
filed in the district court and three appraisers are appointed by
the presiding justice, who endeavors to get men of the highest
qualifications for this work. The bill which is submitted by the
appraisers for their services is usually allowed without much question.
On the average, only 15 per cent of the findings of the appraisers are
appealed from. A commission was appointed in 1911 to ascertain damages
in connection with the extension of the Denver park system. Property
for this purpose was taken to the amount of $2,523,463, as estimated by
the report of the appraisers. Of this sum $1,814,539 was paid for land
taken for the site of the civic center. Considering the size of the
undertaking there were very few protesting owners, and these were for
the most part owners of property involved in the taking for the civic
center. Out of 50 owners only 18, representing $527,428, protested
against the awards, and one of these alone represented $265,000.
The common law jury which heard the first protest found against the
petitioners, and all the rest of the protesting owners withdrew their
appeals.[17]
ST. LOUIS. The same procedure as in Denver is followed in St. Louis,
the three commissioners being appointed by the judge of the circuit
court presiding over the case. A majority of the commissioners has full
power to act and make a report. Unlike the practice in Denver, the
compensation is fixed at $3.00 a day. It is not to be expected that
excellent men will be attracted by such low pay, and perhaps for this
reason some of the commissioners have not given satisfaction. It is
reported to be not an unusual thing in cases involving less than $1,000
for the commission to take six months in reaching a decision and then
to have its finding overturned on review. On the other hand, there have
been notably good commissioners in cases involving heavy damages. The
commissioners who sat in connection with the condemnation of the site
of the municipal courts building took two days to reach a decision,
although the property of 400 defendants was taken and over $1,000,000
in damages was paid. Appeals from the commissioners’ findings may be
taken to a common law jury only by a corporation land owner—an anomaly
in procedure which we have already noticed.[18]
PHILADELPHIA. The municipalities of Pennsylvania in takings for street
purposes replace the commission, which may be regarded as somewhat
expert in the knowledge of real estate values, by a so-called “road
jury” of three appointed by the judge of the court where the petition
is filed. Philadelphia, with a population of 2,000,000, and the hill
towns of a few hundred inhabitants, have the same procedure.
The awards of road juries are, in the opinion of the city solicitor’s
office, on the whole satisfactory. Excessive awards to land owners are
appealed from by the city, and in a large per cent of these appeals
land owners, to avoid the danger of litigation, remit some portion of
the award. The following shows the total amount of awards and total
remitted in Philadelphia in 1906, 1907, and 1908.
Year Award Remitted
1906 $1,786,785 $147,821
1907 2,273,867 118,973
1908 2,719,691 208,173
The appeal from the awards of road juries is heard by a common law
jury in the superior court and results, in a considerable number of
cases, in a substantial increase over the award. The report of the
city law department in 1906 shows that there were 76 cases heard by
a road jury in 41 of which appeals were taken. In this same year
awards in 130 cases heard in the superior court were increased from
$132,054, as fixed by the road jury, to $225,758. In nine cases the
amount of the award remained the same and in one there was a decrease
of $2,256. The reports of the law department of 1907, 1908, and 1909
do not give the whole number of cases appealed from the road jury, but
in the 23 appealed cases heard in the superior court for 1907 there
were increases in awards in 17 cases from $49,169 to $91,551; in the
22 appealed cases heard in the superior court for 1908 there were
increases in awards in 20 cases from $61,550 to $85,877; in 1909 out of
19 cases there were increases in awards in 14 cases from $119,650 to
$153,907.
It is significant that in a considerable number of the cases appealed
from a road jury the evidence is heard by a referee, particularly where
a large sum is in dispute, and the common law jury acts on his report.
Almost half the appealed cases of 1906 were sent to a referee.
PORTLAND, OREGON. In taking land for street purposes Portland does
not use the state code, the advantages of which were described on
page 30, but follows the provisions of the city charter,[19] which
prescribe a procedure much like that in Philadelphia. Its three
“viewers” correspond to the Philadelphia “road jury,” except that
they are not appointed by the court but by a committee of the common
council and usually for political reasons. The result is that a body
of professional viewers has developed who are peculiarly open to the
charge that their findings may be influenced by the political strength
of the parties to the proceeding. The report of the viewers goes to the
city council which usually adopts it as the easiest course to pursue.
At any time within twenty days from the confirmation of the report of
the viewers by the council, an appeal may be made to the court sitting
with jury, the only questions open to appeal being the amount of
damages and, where assessments for benefit are also made, the amount
of the assessment. Since any number of persons may join in the appeal
the proceeding is so complicated that the jury is ordinarily glad to
confirm the report as a whole and avoid the rather difficult task of
revising it. Two out of three recent cases had that result.
There are two types of commission which for convenience will be placed
in this group, though they differ essentially from the Denver and St.
Louis commissions. The first is illustrated by the street commissioners
in Boston, or the board of public works in Milwaukee; the second, by
the Chicago commission specially appointed under the local improvement
act. Like judicially appointed commissions, those of Boston and
Milwaukee conduct hearings, but unlike judicially appointed commissions
they sit as arbiters in a case in which they, as representing the city
in the capacity of administrative bodies, are interested parties.
BOSTON. In proceedings for the condemnation of land needed for streets,
and for school houses and other public buildings in Boston, awards of
damages are made by the street commissioners after public hearing. The
street commissioners are elected for three years and receive a fixed
salary. There may be much or little significance in the fact that
appeals are frequent from the awards of this elected commission which
is apt to be regarded as closely allied with the city administration.
Before the jury the city undoubtedly is handicapped by the fact that
the awards of damages have been made by a department of the city
administration sitting as a tribunal in a cause in which the city is
an interested party. The number of appeals from the findings of the
Boston street commission compares very unfavorably with those from the
St. Louis and Denver judicially appointed commissions, or even with the
Indianapolis park commission, a board which, like the Boston street
commission, is a department of the city administration. The different
result in Indianapolis may be due altogether to the strong demand for
the completion of the park system and to the conviction in the minds of
land owners that parks create land values; but contributing factors to
this result are doubtless, first, the strictly non-partisan character
of the Indianapolis commission, which serves without compensation, and
its reputation for fair dealing; second, the elimination of the jury
in cases appealed from the park commission; and third, the assessment
of the cost of land taking on the property specially benefited, which
compels the interest of the land owner “specially benefited” in every
verdict for land damages and makes appeals to increase verdicts
extremely unpopular.
Data in 35 proceedings for street openings, widenings, and relocations
in Boston, taken at random from the records of the last fifteen years,
show that in 31 cases the awards of the street commissioners were not
accepted by the owners. In 28 of these cases there were 1,065 parties
to the proceedings, of whom 462 refused to accept awards. Approximately
175 of these claims for additional compensation were settled by the
street commissioners, 287 were entered in court and either tried by
jury or settled by the law department. Thus 26 per cent of all owners
interested in the proceedings appealed to a common law jury and a
considerable portion of these appeals were actually tried. Complete
figures were obtained from the records of the street commissioners in
12 proceedings and are given in the following table:
TABLE 2.—DAMAGES AWARDED, PARTIES INVOLVED, CLAIMS FOR INCREASE,
AND CLAIMS COMPROMISED OR SETTLED, IN 12 PROCEEDINGS FOR STREET
IMPROVEMENTS. BOSTON, 1895 TO 1913
=====================================================================
Location of | Amount of | Parties |Claims | Claims
improvement | damages | involved | for | settled by
| awarded | |increase| street
| | | |commissioners
——————————————————————+————————————+——————————+——————————————+———————
Huntington Ave. | $230,353 | 58 | 34 | 26
Audubon Rd. | 26,472 | 1 | 1 | ..
Columbus Ave. | 926,986 | 177 | 122 | 92
Boylston St. | 10,039 | 8 | 7 | ..
Brighton Ave. | 103,165 | 26 | 26 | 23
South Huntington Ave. | 56,195 | 11 | 1 | ..
Dorchester St. | 307,193 | 52 | 5 | 5
Walter St. | 6,000 | 33 | 14 | 6
Brookline Ave. | 26,000 | 20 | 9 | 2
Tremont St. | 12,000 | 25 | 8 | 1
Cambridge St. | 30,000 | 25 | 12 | ..
Queensberry St. | 112,904 | 7 | 6 | ..
======================+============+==========+==============+=======
Total | $1,847,307 | 443 | 245 | 155
——————————————————————+————————————+——————————+——————————————+———————
MILWAUKEE. Although in Milwaukee the board of public works is the
tribunal before which evidence is presented on the question of damages
on account of the taking of property for public purposes, a finding
that a taking proposed is necessary and that the purpose is a public
one must be made by a jury of twelve men before the case gets to the
board of public works. From the awards of the board of public works
appeal is allowed to a common law jury, but in the last eight years
every appeal has been settled before the case reached trial. It may be
said in this connection that there have been no very extensive takings
for either street or park purposes.
CHICAGO. The second type of commission is provided for in the procedure
for street improvements in Chicago. Like the Denver and St. Louis
commissions, it is judicially appointed but is more in the nature of a
board of advisory experts to the jury, since its report is made without
a hearing and on the basis of its own appraisal of valuations. The
court frequently follows the suggestion of the city attorney in making
the appointments to this commission. The report of the commission is
filed in court, summonses are immediately issued to all persons whose
land is damaged or taken, and the trial proceeds before a common law
jury. There have been so few cases of takings for street openings,
widenings, and extensions in Chicago that the data are insufficient to
form the basis for an opinion as to the merit of the Chicago method
of ascertaining compensation. The only proceeding that has involved
considerable land taking within the past twenty years was the widening
of Randolph Street, in which case the work of the commission was on
the whole well done, if judged by the result of the review by the
court. Many owners were concerned in that proceeding, but the finding
of the commissioners as to compensation for land taken or damaged
was increased only from $314,000 to $367,000, and the finding of the
commissioners that there “was no public benefit” and that, therefore,
the total expense of the improvement should be assessed on private
owners was not altered on appeal. For their services in this case, the
commissioners received $1,000 each.
2. A COURT WITH JURY HAVING ORIGINAL JURISDICTION
Although an appointed commission is more likely to consider
intelligently the evidence and to come to a fairer conclusion than if
the proceedings are brought directly before a jury, this advantage
may be more than offset and the preliminary hearing be a waste of
time if the commission’s findings are overturned by an inexperienced
jury of twelve men. It is therefore not surprising to find in several
jurisdictions where the right to a jury is granted in eminent domain
cases that the expense of a first hearing before a commission is
entirely eliminated. This is so in the state codes of Louisiana, Ohio,
Washington, and California. In the city of Chicago for some public
purposes, and in Portland, Oregon, for all public purposes except
street openings, widenings, and extensions, the same procedure is
followed.
CLEVELAND. In Ohio, the procedure in appropriating land for all
public purposes is regulated by the state law.[20] When an ordinance
authorizing the appropriation of land is passed by a two-thirds vote of
the common council of any city, the city solicitor makes application
to the court of common pleas, to a judge in vacation, to the probate
court, or to the insolvency court, for the appointment of a jury to
award compensation, giving five days’ notice of such application to the
owners of property affected by the ordinance. The judge applied to sets
a time for the hearing of evidence by the jury and the trial proceeds
as in other civil actions. Appeal lies from the finding of the jury,
but the right to take and use the property condemned is not affected by
the appeal. Upon payment of the judgment or upon depositing the money
in court, a fee simple vests in the city unless a lesser estate is
asked for in the ordinance of appropriation.
In Cleveland, when the state insolvency court was legislated out of
existence by operation of the federal bankruptcy law, that court took
over jurisdiction in juvenile and condemnation cases. The docket of the
court is not overcrowded and a speedy trial is assured in every case.
So rarely have the offers made by the city been exceeded by the jury’s
findings that owners have learned the economy of accepting the city’s
offer in the first instance and avoiding the delay and expense incident
to litigation. The result is that less than one-tenth of the land
needed for public purposes is acquired by condemnation procedure.
CHICAGO. Chicago gets practically all of its sites for school houses by
condemnation. The offer of the school board to purchase land desired
is hardly more than formal, and on its rejection the petition for
condemning the land is brought immediately in court and evidence of the
value of the site is presented directly to the jury. This method has
been in use for some years and counsel for the board, who has served
during the history of this method of procedure, is convinced that
the city is in substantially as advantageous a position as a private
buyer. During the past five years (1907-1912), with an average of at
least 20 cases a year, the jury has, with practically no exception,
accepted the valuation of the site as fixed by the law department of
the school board. Settlements with property owners have consequently
been much more common. Ten years ago 90 per cent of the cases involving
condemnation for school purposes in Chicago were tried through to
a verdict. Today more than 90 per cent are settled and subsequent
proceedings are merely formal, to perfect the title.
SAN FRANCISCO.[21] In San Francisco, too, the procedure is begun by
filing a complaint and issuing summonses thereon in the superior court.
If the owners affected by the process do not demand a trial by jury it
is waived and three appraisers are appointed by the court to ascertain
the compensation. In practice, however, more than 80 per cent of the
land needed in San Francisco for public purposes is acquired directly
by deed from the owners without resort to condemnation procedure.
3. A COURT WITHOUT JURY HAVING ORIGINAL OR APPELLATE JURISDICTION
NEW YORK.[22] When the board of estimate and apportionment of New
York City authorizes the taking of land for street or park purposes,
application is made to the supreme court for the appointment of three
commissioners of estimate and assessment, to determine the compensation
to owners and to assess as damages the cost of the proposed
improvement, or such a proportion thereof as the board of estimate
and apportionment directs, on lands deemed specially benefited. After
hearing evidence an abstract of the report of the three commissioners
or of a majority of them is filed in court at least thirty days before
being presented formally to the court for confirmation, in order that
petitions in writing against the confirmation of the report may be
filed. The court gives a public hearing to remonstrants who have filed
their written objections, and confirms or modifies the report, or in
some cases sends it back to a new commission. The commissioners are
directed by the statute to complete their work within six months unless
granted an extension by the court for good cause. Their compensation is
$10 a day.
This procedure was long regarded as unsatisfactory. In 1911 it was
characterized by the New York press as “inordinately expensive,”
because of the financial interest of the commissioners in protracting
the proceedings; “generally inefficient,” because of the many
incompetent commissioners selected for political reasons; and open to
“flagrant abuse,” because the commissioners thus selected were likely
to favor property owners who had political influence. By the adoption
of a constitutional amendment at the general election November 4,
1913, the legislature is permitted to pass an act which will give to
a justice of the supreme court the power to dispose of all matters
concerning condemnation formerly in the hands of the commissioners
of estimate and assessment.[23] In the opinion of the corporation
counsel, Archibald R. Watson, “A justice of the supreme court with
undivided responsibility, with no interest to prolong the proceedings,
not susceptible to influence and generally of high grade character
and capacity, should be able to dispose of condemnation matters with
results far preferable than by means of commissioners.”
MINNEAPOLIS. We have already described the procedure in appropriating
lands for park purposes in Minneapolis up to the time of the
confirmation of the awards by the district court.[24] The results are
on the whole quite satisfactory. The appraisers are usually competent
men and, although appeals are taken from their awards as confirmed by
the board of park commissioners to the district court sitting without
jury, the percentage of such appeals is not large, not more than 15
per cent in any proceeding, and the increase in awards on appeal is
often merely nominal and rarely more than 20 per cent. There seems,
however, little justification for two preliminary hearings, one before
the appraisers and one before the park commissioners, on the question
of land awards. The appraisal could as well be done by the park
commissioners through the agency of a competent clerical force, as in
Indianapolis, and the expense of appraisals and reappraisals would be
avoided.
KANSAS CITY. In Kansas City, Missouri, the petition for taking land
for street purposes is brought in the municipal court which sits with
a jury of six appointed by the presiding justice.[25] The verdict of
the jury is confirmed by the common council of the city and appeals are
allowed to the circuit court. In practice not more than 25 per cent
of such actions are appealed from the municipal court. In the newer
procedure for the taking of land for park purposes a saving of both
time and expense, by eliminating the preliminary trial in the municipal
court, is brought about by allowing the petition to be filed directly
in the circuit court.[26] As in St. Louis, a corporation is allowed a
hearing on the question of damages for land taken before a common law
jury, but in Kansas City corporations do not demand common law juries.
When the procedure was new, a corporation tried the experiment and the
result was so disastrous that it is said never to have been attempted
since. Presiding justices both in the municipal and circuit courts take
care to appoint competent men. That satisfactory jurors can be obtained
for $2.50 a day, which is the compensation allowed, is ample evidence
that jury service in these cases is regarded as a civic duty and not as
a desirable “job.”
INDIANAPOLIS. In Indianapolis the board of public works in takings for
street purposes, and the board of park commissioners in takings for
park purposes, have the same duties which in Kansas City are performed
by a jury of six men. All objections to the taking, awards for damages,
and the size of the specially benefited area as marked out by the
commissioners, are disposed of in one hearing.[27] From the findings
of the commissioners appeal lies directly to the circuit or superior
court sitting without jury, and the amount of the judgment as found
on appeal is final. The businesslike practice which has been adopted
by the park commission under the act of 1909, appeals to the sense of
fairness of the property owner and has proved most helpful in arriving
at awards. In every taking the park board has the assistance of real
estate experts as an advisory committee, and is kept in close touch
with valuations by a complete card catalogue system which registers the
actual consideration in transfers of property.
Although the act is only three years old, there has been at least one
considerable taking in each park district. In the North Park there have
been two, one involving an expense of $154,420 and the other $131,662.
In all the takings for park purposes under the new act involving over
$600,000 worth of property and several thousand owners, there have been
only four appeals from the findings of the board, two of which have
been decided by the superior court. In one an award of $10,000 was
increased to $17,000 and in the other an award of $6,925 was increased
to $9,800. In one proceeding alone there were 1,600 owners involved and
only 50 were present at the hearing given remonstrants.[28]
CONCLUSIONS
The New York constitutional amendment provides the simplest method of
ascertaining compensation. Owners of land are given one day in court
in which all questions concerning the regularity of procedure and the
amount of compensation are determined. There is in such a procedure
the least chance for waste of time or money in preliminary hearings,
and all the responsibility for decisions is put on the justice who
presides in the case. But no judicial decision has sufficiently
tested whether the land owner’s rights are properly safeguarded. The
procedure in Indianapolis has had the advantage of a thorough testing.
Its results are satisfactory enough both to the city and to the land
owner to recommend its adoption in any jurisdiction contemplating a
change in procedure. But where a common law jury is prescribed by the
constitution the adoption of the Indianapolis procedure in its entirety
would not be possible without a constitutional amendment. No comment
is necessary to emphasize the difficulty of passing such an amendment,
and there is considerable question whether it would be necessary or
expedient in the light of experience in Chicago and Cleveland where the
awards of common law juries have been fair both to the municipality and
to property owners.
The worst that can be said of the jury in condemnation cases is that
in some jurisdictions it has a lively prejudice against the city as a
petitioner in eminent domain cases. The opinion is also generally held
by those who have had experience in the presentation of evidence to a
jury that the usual uncertainty in a jury’s findings in any civil case
is only increased by the technical nature of the evidence presented in
condemnation cases. The jury is asked to estimate land values without
having had any previous experience. It must depend entirely on its
view of the premises and on the opinion of real estate experts for
its decision. About all a fairminded jury can do in such cases beyond
striking a mechanical average of the widely divergent expert testimony
is to discount the several claims in proportion to the impression made
upon the jury by the individual experts,—and the jury is asked to
measure the relative elasticity of conscience of experts after a too
meager character study.
Where condemnation cases must continue to be tried before a jury, the
important question in revising methods of procedure is whether there
is any advantage in a preliminary hearing, either before a permanent
board or before a board specially appointed for each case. From the
data which we have just reviewed it is obvious that however excellent
the preliminary tribunal, it results in increased cost and delay in
those cases where its findings are not accepted by the land owners.
But it is just as clear, first, that before a preliminary tribunal
well constituted and acting under favorable conditions, the procedure
is simpler and less expensive; second, that appeals from its findings
are few; and third, that not infrequently its awards are sustained
on appeal. Thus the preliminary hearing at its best has the positive
merit of being the means in a great majority of cases of a large
saving in time and expense, and, even in cases that are appealed, of
influencing the jury’s verdict. In jurisdictions where preliminary
boards are unsatisfactory, changes in method of appointment or in
minor details should be tried before the principle of a preliminary
hearing is condemned. If the tribunal has a political bias or is too
closely affiliated with either of the parties to the proceeding, it
should be replaced by a strictly non-partisan tribunal appointed by the
court. A tribunal of permanent tenure is likely to handle cases with
more dispatch, because of longer experience, than one appointed for
each case. A properly paid tribunal is a surer guarantee of competent
service than one paid an entirely inadequate sum or one induced to
prolong its deliberations by a per diem compensation.
Whatever reason may justify the continuance of commissioners in eminent
domain cases is not applicable to procedure in Philadelphia and other
cities and towns of Pennsylvania and in Portland, Oregon. There seems
to be no good reason for allowing damages to be ascertained in the
first instance by a jury indifferently qualified to pass upon the
evidence and then to have the same evidence reviewed by a larger jury
that is if anything less qualified to reach a fair verdict.
Even where it can be shown that awards of commissions of acknowledged
excellence are generally appealed from and are increased by a jury on
appeal, the reform that is needed is likely to be more fundamental than
the abolition of the commission. A very large factor in determining the
attitude both of the general tax payer and of the owner of land, and
consequently in determining the number of appeals from a commission’s
findings and the advantage or disadvantage of the city’s position
before a common law jury, is the method of distributing the cost of
an improvement. A summary of these methods in several jurisdictions
should, therefore, indicate ways and means to reduce the initial
investment of capital in the land required for an improvement, the
problem which has just been considered, as well as the way of providing
capital, which will be discussed in the next chapter.
FOOTNOTES:
[12] For streets, see Acts of California, 1909, Chapter 684.
For parks, see Acts of California, 1909, Chapter 697.
[13] Special Laws of Minnesota, 1889, Chapter 30.
[14] Charter of Kansas City, 1908, Article 13, Section 12.
[15] Original papers filed in the case.
[16] Lord’s Oregon Laws, Title XLV, Of the Condemnation of Land,
Section 6859. Acts of 1909, Chapter 171.
[17] Denver Municipal Facts, Vol. III, No. 20, p. 10.
[18] See page 28.
[19] Charter of Portland, Chapter VI, Section 348 ff.
[20] General Code of Ohio, Section 3677 ff.
[21] California Code of Civil Procedure, paragraph 1243 ff., Acts of
California, 1909, Chapter 684.
[22] Greater New York Charter as amended in 1901, Section 970 ff.
[23] Amendment to Constitution of New York, Section 7, Article 1. For
text see Appendix, p. 248.
[24] See p. 27.
[25] Charter of Kansas City, 1909, Article 6, Section 1 ff.
[26] Charter of Kansas City, 1909, Article 13, Section 8 ff.
[27] Acts of Indiana, 1911, Chapter 231, Sections 17 and 19.
[28] Records of Indianapolis Park Commissioners.
CHAPTER III
THE DISTRIBUTION OF THE COST OF LAND ACQUIREMENT
Cities may pay for improvements as they go along, appropriating the
funds out of the general tax levy, or they may make special issues
of bonds from time to time, and draw upon the general tax levy
gradually for the interest charges and the redemption of the bonds.
The income applicable to improvements derived from the tax levy, both
directly and through the sale of bonds payable out of the tax levy, is
likely to prove inadequate in almost any city in the United States,
since a limit to the borrowing ability of a city is usually fixed
in the state constitution at from 2 per cent to 10 per cent of its
assessed valuation, and the amount available from taxation is just as
effectively limited by the inelasticity of the tax rate above a certain
figure. The most obvious way out of the financial difficulty is to
remove the limitation on borrowing power, and there are precedents for
this in nearly every progressive city. It is in fact the usual thing
when comprehensive plans are proposed involving considerable financing,
for the legislature to allow a bond issue and provide that it shall not
be reckoned in determining the amount of the municipal indebtedness.
DEVICES EQUIVALENT TO BORROWING OUTSIDE THE DEBT LIMIT
The city of Milwaukee employs a somewhat different expedient in
stretching its borrowing ability. The constitution of the state of
Wisconsin allows cities to incur indebtedness up to 5 per cent of
their valuation,[29] provided that the bond issue is approved by the
people at a special election. Counties are also given the right to
become indebted up to 5 per cent of their valuation and no approval
of the people is required. These provisions give Milwaukee the
right practically to borrow money up to 10 per cent of its assessed
valuation, since most of the county’s valuation is included within
the city’s limits. Improvements are construed whenever possible to be
county improvements in order to give the city a greater borrowing power
and avoid the submission of the bond issue to the people.
But Milwaukee and other cities of Wisconsin have also worked out
a method of purchase of land by contract, which amounts really
to purchase on the instalment plan, as a further relief from the
exigencies of the financial situation. The same practice is sanctioned
by legislation in Minnesota and is employed at least in Minneapolis.
This method is useful where a city is close up to its limit of
indebtedness. The legislation of both states specifically provides that
the contract shall not create a corporate liability or constitute a
pledge of the general credit of the city. In construing this language
the supreme court in both states has held that there is no obligation
on the part of the city to meet unpaid instalments, since the city has
merely an option to purchase, with the right of possession till default
in payment.[30]
It was argued in Burnham _vs._ Milwaukee, 98 Wis. 128, that a land
contract was merely a scheme to evade the constitutional limitation on
municipal indebtedness, but the supreme court sustained the contract,
holding that in spite of the weight and persuasiveness of the argument
the legal meaning of the statute was definite and could not be twisted
or enlarged. Its conclusion was, “that the unpaid instalments upon the
park land contracts do not constitute a corporate indebtedness within
the meaning of the constitution because the payment thereof is entirely
optional on the part of the city.” To the same effect are Perrigo _vs._
Milwaukee, 92 Wis. 236; Milwaukee _vs._ Milwaukee County, 95 Wis. 424;
and in Minnesota, Kelley _vs._ City of Minneapolis, 63 Minn. 125.
Cities often have opportunities to secure a tract of land at a low
figure subject to immediate acceptance of the offer. The offer will
not stand until a bond issue, which must be submitted to popular vote,
has been secured, and the amount of such an issue might increase
the indebtedness beyond the limit of the borrowing power. In such
an emergency the cities of Wisconsin and Minnesota may enter into a
contract with the owners of land, paying 5 per cent of the purchase
price at the date of contract and the balance in annual instalments. A
piece of land costing $100,000 may be paid for by an initial instalment
of $5,000 and 19 annual instalments of $5,000 each. In providing for
these payments, the city issues bonds each year, bearing 4 per cent
interest, the issues being for twenty years, of which 5 per cent is
redeemed each year. The amount of each bond issue is made up of the
annual instalment of $5,000 and the interest on the balance of the
purchase price at 4 per cent. The last bond in the issue will be
redeemed forty years after the purchase of the land. Each year the
amount required for sinking fund and interest charges on each annual
bond comes out of the tax levy.
There are several advantages in the contract method of paying for
land: First, the payment is distributed over forty years without
the necessity of legislative sanction for a long term bond; second,
desirable tracts of land may be purchased at any time during the year
at an advantageous price and the city is not compelled to wait for
the time-wasting formality incident to bond issues; third, the city’s
borrowing power is in effect considerably extended.
Leaving out of consideration financially self-sustaining municipal
investments, like many municipal water works, which are usually
reckoned apart from the municipal debt and which do not impose a burden
upon the tax payers as such, the temporary relief from financial
difficulties secured as above described, by extending the limit of a
city’s borrowing power or by expedients such as the contract method of
paying for land, leaves the ultimate burden on the municipality and
substantially distributes it over the whole of the taxable property of
the city in accordance with valuation. Conservative policy will never
allow a very great stretching of the debt limit, and any considerable
increase beyond the customary annual tax rate is bitterly resisted.
Sources of municipal revenue other than the general property tax are
practically negligible in this connection in American cities. It is
therefore very important to relieve the general tax payer of a portion
of the cost of public improvements wherever they can be found to be of
so much special benefit to the owners of a limited area as to justify a
special assessment.
SPECIAL ASSESSMENTS
1. DEFINITION
“A special assessment is a compulsory contribution paid once for all
to defray the cost of a special improvement to property undertaken in
the public interest and repaid to the government in proportion to the
special benefits accruing to the property named.”[31]
Though a special assessment is an exercise of the taxing power, it
differs from a tax in two particulars: First, the nature of a special
assessment makes it a charge for a real benefit to property and one
which can be more or less accurately measured in money values; second,
it has been almost uniformly held by judicial decisions that special
assessments need not conform to the constitutional requirement that
taxation shall be equal and uniform.
The equity of this species of taxation is defended on the theory that
the individuals of the community whose holdings have been made more
valuable by the expenditure of the community’s money should repay
at least some portion of that outlay. Specific application of the
principle may produce an unfair result. If an assessment for street
improvement is figured by the front foot, it is unfair to the man with
a long, shallow lot. If it is levied in accordance with the area of
lots, it is unfair to the land with much depth and small frontage. It
is impossible to devise any method of taxation which distributes the
financial burden automatically with perfect and indisputable justice.
If a lot which was worth $1,000 before a public improvement can be sold
for $1,100 after it, and if the lot is assessed any amount up to $100,
the method of arriving at this amount is immaterial, since the result
is just enough.
2. HISTORY
A special assessment law enacted for New York City in 1691 is said to
be the first true special assessment law in the United States, and to
have been based on a law passed in 1667 to aid the rebuilding of London
after the great fire of 1666.[32] This law of 1667 was one of three
special assessment laws enacted in Great Britain before 1900 and their
use was very infrequent. But in 1658 the general court of Massachusetts
appointed a committee “to lay out the way through Roxbury lots to
Boston farms, and to judge what is meet satisfaction to the proprietors
for the way, and that they have power to impose an equal part upon all
such of Boston or other towns as shall have benefit of such way.”[33]
Whatever may have been the origin of the principle, because of its
general use and extensive development in the United States it is
recognized even in Great Britain as an “American device.”
The New York law of 1691 assessed the cost of street pavements and
sewers on the property specially benefited, in proportion to the
benefits received. Pennsylvania passed a similar law in 1700: “To
defray the charge of pitching, paving, graveling, and regulation of
said streets ... each inhabitant was to pay, in proportion to the
number of feet of his lots ... adjoining, on each or either side of
the said streets.”[34] Massachusetts in 1709 and 1761 provided that
“Persons receiving any benefit from common sewers, either direct
or remote, were obliged to pay such proportional part of making or
repairing the same as should be assessed to them by the Selectmen of
the towns.”[35] The old New York law was little used until 1787 when it
was amended and made somewhat more definite.[36]
The adoption of the principle was extensive after the war of 1812.
The following dates indicate about the time when the legislation
was passed in different states and territories, the dates usually
indicating the incorporation of the principle in the charter of some
city, followed usually by court decisions in the main upholding the
assessment. The active use of the special assessment principle may be
considered as dating in New York from 1813; Kentucky, 1813; Michigan,
1827; Pennsylvania, 1832; Louisiana, 1832; New Jersey, 1836; Ohio,
1836; Illinois, 1837; Maryland, 1838; Connecticut, 1843; Wisconsin,
1846; Indiana, 1846; Mississippi, 1846; California, 1850; Oregon, 1851;
Missouri, 1853; Rhode Island, 1854; Iowa, 1855; Delaware, 1857; Kansas,
1864; Massachusetts, 1865; District of Columbia, 1865; Virginia, 1866;
Vermont, 1868; West Virginia, 1868; Minnesota, 1869; New Hampshire,
1870; Texas, 1871; Maine, 1872; Nebraska, 1873; Florida, 1877; Georgia,
1881; Nevada, 1881; Washington, 1883; Alabama, 1885; North Carolina,
1887; North Dakota, 1887; South Dakota, 1887; Montana, 1887; Idaho,
1887; Wyoming, 1887; Utah, 1888; Colorado, 1889; Oklahoma, 1890; North
Mexico, 1891; Arizona, 1893.[37]
In early times special assessments were most frequently used only to
defray the cost of construction of improvements, but the language of
the first Massachusetts act is broad enough to allow also an assessment
to cover the cost of land acquirement. It is only the use of special
assessments to defray the cost of land acquirement with which we are
concerned in the present survey, although a special assessment for a
more restricted purpose is based on the same principle.
3. SPECIAL ASSESSMENTS IN ACQUIRING LAND FOR PARK PURPOSES
It is generally agreed that parks judiciously acquired in a city are a
benefit to the whole community, but the use of some of them, especially
of small parks, is confined almost wholly to the people of the locality
in which they occur, while other parks, especially the large ones, may
be used by people from all parts of the city.
It is also a real estate axiom that residence property contiguous to
parks commands a higher price, other things being equal, than similar
property several blocks away. We should therefore expect the cost of
park acquisition to be distributed, first, by an assessment on such
property as really receives a special increase in value because of the
nearness of the park; and second, either by assessment on a much larger
area assumed to include practically the whole public served by the park
as a local institution, or else by general taxation on the whole city.
In the case of small parks, it is logical and fair to subdivide a large
city into local “park districts” or “improvement districts” and to make
each district pay for its own local park. This practice is not only
fair but extremely salutary. It forces a clearer understanding of what
each dollar of the tax payer’s money has gone to secure, thus checking
a loose extravagance in the acquirement of park lands, and at the same
time makes it possible for a progressive and prosperous locality which
is in need of parks to proceed with their acquirement unhampered by
the resistance of other parts of the city which are satisfied with the
existing situation or are really unable to afford further taxation
for park purposes. The principle is the same as that which justifies
the subdivision of a state into municipalities for the localization
of taxes required for local purposes, and it becomes more and more
important, as the size of municipal units is increased, for dealing
with affairs that affect large groups of contiguous communities having
many conflicting interests.
But although the amount and kind of benefit resulting from large and
small parks is about the same in all cities similarly situated, the
practice in paying for the cost of park areas shows the greatest
divergence. It is usual in the United States to assess no part of
the cost of acquiring park lands on property specially benefited. In
some cities the law does not permit such assessment. In other cities
the assessment is made in so limited a way as to give the community
little relief from the financial burden. In several cities, notably
Seattle and Portland of the western cities, and Baltimore in the east,
which assess private property very liberally for street improvement,
including the cost of land takings, there is no assessment for the
acquisition of land for parks.
In the cities of Ohio, it was illegal up to 1912 to raise the cost of
land acquired by condemnation by a special assessment. The case that
establishes this law in Ohio is City of Dayton _vs_. Bauman, 66 Ohio
St. 379. In that case the city appropriated land for the extension of
two streets and assessed the cost on abutting lots. In deciding against
the validity of the assessment the court based its decision entirely on
Section 19, Article I of the Ohio constitution, holding that a special
assessment was an indirect method of evading that constitutional
limitation. This section provides:
“Private property shall ever be held inviolate, but subservient to the
public welfare ... where private property shall be taken for a public
use, a compensation therefor shall first be made in money, or first
secured by deposit of money, and such compensation shall be assessed
by a jury without deduction for benefits to any property of the owner.”
The court said:
“The limitation of Section 19 goes to the full extent of prohibiting
the assessment of compensation, damages and costs of land appropriated
upon any real estate whatever. In short, money cannot be raised by
assessment to pay such compensation, damage and costs, but such money
must be raised by taxation. The _public_ appropriate land for _public_
use, and the _public_ must pay. Nothing less than the _public_ can
appropriate lands by legal process for _public_ use. If an assessment
district should be formed and a petition filed by such district to
appropriate private property for the use of such district, or the
public, a demurrer to such petition would be sustained on the ground
that the constitution gives no power of appropriation of private
property to such assessment district, such district not being the
public and the power of appropriation being given by Section 19 by the
public only.
“The power of appropriation being given to the public only and only
for the public use, it follows that the _public_, the taker, must pay
for what it takes, because he who takes from another should himself
make restitution, not compel others to pay for what they have not
taken.”
The language of the decision is given since it is believed to be the
most pointed judicial expression of the chief argument against the
validity of special assessments. It is in substance a decision that a
tax, unless uniformly levied, amounts to an illegal taking of private
property. In this respect the decision is contra to the great weight of
authority in the United States.
In 1912 the people of Ohio ratified the following constitutional
amendment which makes the law of Ohio uniform with that of the rest of
the country:
“Section 11. Any municipality appropriating private property for a
public improvement may provide money therefor in part by assessments
upon benefited property not in excess of the special benefits
conferred upon such property by the improvements. Said assessments,
however, upon all the abutting, adjacent, and other property in the
district benefited, shall in no case be levied for more than fifty per
centum of the cost of such appropriation.”[38]
In Missouri we find St. Louis making no special assessment for the cost
of taking park lands, but in the same state Kansas City assesses the
entire cost of park acquisition on the land specially benefited.
In Massachusetts, since 1882, park commissioners have been allowed
to assess an amount not exceeding one-half of the special benefit,
but no assessment can be laid upon any land except such as abuts on a
park or on a way bounded by a park.[39] Whether because of official
inertia, or because of the ineffectiveness of the legislation due to
its cumbersome machinery or to the limitation on the assessment area,
special assessments have been rarely levied. Inquiry in ten of the
largest cities in the state shows that only in two has there been
any use of this power, and that quite infrequent. In takings by the
Metropolitan Park Commission of Massachusetts, the practice is to
levy no assessment; but where owners are compensated for land taken
or damaged, the amount of their compensation is reduced by the amount
representing the special benefit to the land remaining by reason of the
improvement. Owners whose land is not taken may be equally benefited,
but the benefit is not assessed.
The New York practice shows interesting changes from the time of the
acquisition of Central Park to the present. Both the creation of
Central Park in 1853 and of Prospect Park, Brooklyn, in 1865 were
considered to benefit property in the vicinity, and that benefit was
held to diminish with the distance from the park. Of the entire land
cost of Central Park, $1,657,590, or 32 per cent, was assessed on
property specially benefited, and the assessment was collected in one
instalment. Of the entire cost of Prospect Park, $1,236,655, or 38.5
per cent, was assessed on private property specially benefited.
The report of the park commissioners for 1867 does not give the
valuation of the property in the area assessed because of special
benefit due to the creation of Prospect Park, and it is now possible
only to approximate the proportion of increase in value which the
special assessment represented. Roughly, the special assessment
district in the Prospect Park case included 30 per cent of the area of
ward 8, 12 per cent of ward 9, and 20 per cent of ward 20. The value
of the assessed portion of ward 8 in 1865 has been reckoned at 30
per cent of the entire valuation of the ward, or at $1,200,000. The
increase in value in the area assessed in ward 8 is estimated to be
400 per cent as against an increase in value of 100 per cent in other
parts of the city since 1865. At this rate its assessed value in 1905
would be $6,000,000; estimated value at the ratio of increase of the
rest of the city, $2,400,000; increase in value assumed to be largely
due to the improvement, $3,600,000. Since the entire assessment over
the three wards was only $1,236,655, we may conclude with due allowance
for inflation of values and inaccuracy of estimates that the special
assessment was not in excess of the special benefit to the property.[40]
The figures for Central Park are even more striking. Value of land
assessed for benefit (half the valuation of wards 12, 19, and 22),
$13,250,000; estimated value of land of this same area in 1873,
$118,000,000; estimated value at the ratio of increase of the rest of
the city at 100 per cent, $26,500,000; increase in value due to the
improvement, $91,500,000; amount of special assessment, $1,657,590.
Here, too, the valuations are probably inflated and the estimate of
the valuation of assessed property is no better than a rough guess,
but the margin of increase over the special assessment is wide enough
to justify the conclusion that land owners were not unfairly burdened
by the share of the cost of the improvement levied against their
property.[41]
From the consolidation of Greater New York under the charter of 1901
to the year 1907, there was a legal reason for the city assuming the
entire cost of acquiring title to parks, since a resolution of a “local
improvement board” was considered necessary before any part of the
expense of acquiring land could be assessed as a special benefit on a
local district. The decision of the court of appeals of March 5, 1907,
seems to change the impression in this regard. The case was Rose Reis
_vs._ City of New York,[42] which is held to have decided that the
board of estimate and apportionment has the right to initiate local
improvements and to provide for the assessment of their cost against
property deemed to have received a special benefit. Following this
decision the board of estimate and apportionment resolved that property
specially benefited by parks should be assessed for their cost.
Previous to that time requests for parks frequently had come from local
sources, and the first striking result of the action of the board was
the falling off in such requests.
Legislation of 1911 gives full recognition to the benefit theory by
allowing the board of estimate and apportionment to determine what
portions of the costs of park lands shall be paid by the city of New
York, what proportion by one or more boroughs, or parts of one or more
boroughs, and what proportions by owners whose land is particularly
benefited.[43]
In Minneapolis the board of park commissioners determines what
percentage, if any, of the amount required for the acquisition of land
for park purposes shall be assessed on the land specially benefited.
The fixing of the area of benefit and the determination of the amount
which each lot benefited shall pay are the duty of the three park
assessors appointed by the district court. After hearing evidence the
assessors make findings and file them in the district court, which
has power to hear objections and confirm or revise the assessment or
send the case to new assessors.[44] It is the practice for the courts
to confirm assessments, unless satisfied that the assessors have been
governed by improper motives or have proceeded on erroneous principles,
or have based their findings on a mistake of facts. The percentage
which private land owners have paid under park takings has varied
greatly under this procedure.
4. PARK DISTRICTS FOR ASSESSMENT PURPOSES
In the comparatively recent practice of some cities “park districts”
have been laid out, each treated as a separate entity, both for the
purpose of locating park areas and for assessing the cost of their
acquisition.
KANSAS CITY. In 1908 the entire city was divided into six park
districts, administered as one system by three commissioners appointed
by the mayor. The commissioners’ duties are to devise and adopt a
system of parks, parkways, and boulevards, and to select such lands
as are appropriate for these purposes within or without the city
limits. They must provide at least one park in each park district.
Responsibility for the selection of areas is left with the park
commissioners, since only on their recommendation can the common
council provide for the acquisition of the necessary land by ordinance,
and it is made the duty of the common council to carry out the park
commissioners’ recommendation.[45]
The cost of acquiring land outside of the city limits must be paid
out of the general tax levy or by a bond issue which is a charge on
future general tax levies; but within the city limits land for parks,
parkways, public squares, and boulevards, whether acquired by purchase
or condemnation, may be paid for by special assessment on the land
specially benefited. Special assessments are also used to defray the
cost of construction of boulevards and park roads on which private
property abuts and are levied directly on such property, as in an
ordinary street improvement. The remainder of the cost of construction
and all the maintenance cost is met by a tax not to exceed 2½ mills
levied over each park district in accordance with its valuation, and
by a special maintenance tax of 10 cents a front foot on the property
which fronts on parkways, boulevards, roads, or avenues.[46] The funds
of each district are kept separate.[47]
Kansas City is fortunate in the provisions of its law regarding
condemnation proceedings and special assessment for benefit. The
ordinance of council following the recommendation of the park
commission describes all the properties to be acquired for the proposed
improvement or group of improvements and the area which is deemed
specially benefited. This area may include one or more park districts
or a part or parts of such district or districts. The proceedings are
initiated by petition of the city in the circuit court, and when the
parties have properly joined issues the case is heard by a jury of six
which ascertains the compensation for property taken and for the damage
sustained by property not actually taken. The same jury assesses the
benefit of the improvement, first charging to the city that portion
of the cost which represents the benefit that accrues to the city
at large, and then distributing the balance of the cost by special
assessment against the parcels of private property found specially
benefited. The verdict of the jury is reviewed by the circuit court
and may be appealed from to the court of appeals on any question; but,
curiously, only corporations have a right to appeal to a common law
jury and this right is almost never taken advantage of.[48]
In legal theory the assessments are approximately in proportion to and
not exceeding the special benefit, and if the cost of land acquirement
should exceed the estimated special benefit the difference would be
paid by a general tax on the whole park district or on the whole
city. As a matter of practice the assessing juries have with almost
absolute unanimity found that the entire benefit from the acquisition
of park land is to private property. The right to assess the entire
cost of a “public improvement” on a specially benefited area—to find,
in other words, that there has been no “public benefit”—has been
declared constitutional in several cases.[49] The city, through its
right to have the proceedings discontinued at any time before the first
assessment is paid into the city treasury by repealing the ordinance of
condemnation,[50] is protected against the finding of a jury that the
benefit is entirely a public one and that no assessment shall be laid
against the private property.
The special assessment method as applied in Kansas City makes
unnecessary an appropriation by the council or a bond issue, both of
which would increase the general tax rate. Payments for the purchase
of land are met either directly by park fund certificates or these
certificates are sold to provide purchase money at a price not less
than the face value of the amount of special assessment, excluding
interest. The payment of special assessments is usually by instalments,
and distribution of the amount collected is made at least semi-annually
to certificate holders who are entitled to the proportional share of
the special assessment represented by their certificate with interest
at 6 per cent.[51]
The Kansas City park system has not been secured any more cheaply
than other park systems, with the exception that the simplicity of
condemnation procedure has probably resulted in some saving in the
cost of land, but the financial burden has been distributed with more
fairness. Practically the entire amount of special assessments has been
collected. From the beginning of the history of the park system in
1892 to April, 1911, its cost was $10,372,876. Of this sum, $500,000
was raised by a bond issue in 1903; $496,181 was appropriated for
construction and maintenance in Swope Park, the city’s largest park;
and $651,776 which was spent for miscellaneous items entirely separate
from the expense of acquiring the land or improving it, was also
appropriated out of the general tax levy. Deducting these three items,
there is left $8,724,919, representing the funds raised by special
assessment.[52]
The significant thing about the Kansas City method of financing its
park system is that 85 per cent of the total cost was distributed over
the district which received the benefit, and that the entire cost
of acquiring the land was assessed strictly on the land found to be
specially benefited.
DENVER. By the charter adopted March 29, 1904, Denver was divided
into four park districts administered by an appointed commission of
five, one from each district in addition to the chairman. The cost
of acquiring land for parks is met, as in Kansas City, by a special
assessment based entirely on the benefit theory, and the cost of
improving the park areas is covered by a uniform park tax not to exceed
two mills. Occasionally the park fund is increased by the revenue
from other sources of taxation. Compared with Kansas City, Denver is
at a disadvantage in choosing one commissioner from each district,
since this method is too much like that of electing representatives
to the city council from each ward and is apt to result in the same
difficulties. Where the make-up of the commission emphasizes separate
localities rather than the whole city, the distribution of park areas
and the distribution of appropriations for improvements over these
areas may present troublesome questions.
The second important difference is in the procedure for acquiring land
and assessing the cost on specially benefited property. The board
of park commissioners in Denver prepares a preliminary estimate of
the cost of acquiring the land for each improvement. This report,
which contains a full description of the property to be taken and the
estimated special assessment on each lot in the entire park district,
is formally served by publication on all owners whose property is
affected either by being taken or by being assessed to pay for the
improvement. If the owners of 25 per cent of the area thus affected
object, in writing, to the report, the project may be defeated for
at least a year. Upon the certification to the city council by the
board of park commissioners that the objections are insufficient in
number, the council proceeds to pass the ordinance of condemnation. The
ordinance of council has been held to be a finding of fact conclusive
on every other tribunal that the land is acquired for a public purpose
and that the protests of land owners are insufficient.[53]
It is noteworthy that the park commissioners are the judges of the
amount of assessment to be levied against each parcel of property. No
assessment in excess of those fixed in the preliminary report can be
levied, and if the estimate of cost proves too low the difference must
be assumed by the city or the project abandoned. After the petition
for the land taking is in court, three appraisers are appointed,
corresponding to the jury of six in Kansas City, except that their duty
is merely to appraise the damages caused by the taking. Their report is
reviewed by the court, which may modify their awards for damages and at
the same time may declare inequitable the rule of assessments as fixed
by the park commission.
Instead of issuing park certificates as in Kansas City, the park
commissioners in Denver are authorized to issue bonds for the cost of
land. The cost of construction is met by appropriations from the park
fund, and in Denver the proceeds of taxation for park purposes in one
district may be used in any other; which again is unlike the rule in
Kansas City, where the funds of each district are kept separate for
that district’s needs.[54]
In 1911 Denver finished the condemnation of land for the completion
of its park system. All the land included in the petition lies in the
East Denver Park District, and consists of park areas, playgrounds,
parkways and boulevards, and a civic center site. In August, 1909, the
board of park commissioners reported an estimated cost of land for the
whole project of $2,780,000, and assessed this entire amount over the
East Denver Park District. The district was for this purpose subdivided
into 38 parts, each assessed a varying amount depending on its distance
from the various improvements, the unit of assessment being a standard
Denver lot of 25 feet by 125 feet. For instance. District No. 1, being
the nearest to the civic center site, was assessed a maximum of $96
each year for ten years on some lots, and from this amount the sums
varied down to $10 a year for ten years on lots least benefited. In
District No. 36, on the other hand, which is most remote from any of
the proposed improvements, the average assessment was 30 cents a lot
each year for ten years.[55] The first instalment of the assessment was
made payable five years after the passage of the assessing ordinance.
On November 23, 1909, the park commissioners certified to the city
council that protests of the property owners were insufficient, and on
December 23 the council passed the ordinance of condemnation. Meantime
an action had been brought in the district court to restrain the city
council from passing the ordinance on the ground that the charter
provisions under which the land for park purposes was acquired were
unconstitutional, and further, that the commissioners’ apportionment
of the cost was inequitable. The city demurred to this action and the
demurrer was sustained in the district court, from which decision
the property owners appealed to the supreme court of the state. In
November, 1910, appraisers were appointed by the district court, and on
March 2, 1911, they made their report, estimating the total damages for
the acquisition for lands in the East Park District at $2,523,463. Of
this sum $1,814,539 was for the civic center site.
Considering the size of the undertaking, there were very few protesting
owners and those for the most part owners of property involved in
the taking for the civic center. Out of a total of 50 owners whose
lands were taken for any of the purposes set forth in the council’s
ordinances, only 18, representing $527,428, protested against the
awards and one of these alone represented $265,000. In May, 1911, the
first protest was heard by a common law jury, which found against
the petitioner. All the other protesting owners then withdrew their
petitions. In November, 1911, the state supreme court sustained the
decision of the lower court above referred to[56] and on March 2, 1912,
“civic center bonds” for $2,696,600, which amount included the cost of
appraisement, the cost of survey, and other incidentals, were offered
for sale.
In spite of the bitterness of opposition from some interested land
owners, the time from the initiation of the proceedings to the
advertising of the bond issue was short, but this was not so much
because of the simplicity of the procedure, which suffers in this
respect by comparison with that in Kansas City, as because the civic
center project and the plans for the completion of the park system had
the backing of public opinion and of the strongest organization in the
city of Denver.
INDIANAPOLIS. The most recent park law which provides for payment of
land acquirement by the special assessment method was passed by the
legislature of Indiana in 1911 for cities of 100,000 or over. Under the
provisions of this act the entire area of Indianapolis is divided into
four districts administered by a commission of four appointed by the
mayor. Only such features of practice as are peculiar to Indiana are
here noted.
The park commissioners have the duties which in Kansas City were given
to a jury of six and in Denver to three appraisers. Without action on
the part of the city council the board of park commissioners may adopt
a resolution for the condemnation of land and the assessment of its
cost on private property.[57] Opportunity is given to land owners to
defeat the undertaking by the written remonstrance of a majority of
the resident land owners in the proposed benefit district.[58] If the
commissioners find the protest insufficient they prepare a roll in
which are included the estimated damages for land taking, the estimated
cost of construction, and other miscellaneous items. To this amount
5 per cent is added to cover any delinquency in the collection of
assessment. This entire amount is then spread as a special assessment
over the area which in the judgment of the park commissioners is
specially benefited by the improvement. This may be an entire park
district or may be limited to a few blocks. The act provides that no
assessment of benefits may be made in excess of 15 per cent of the
value of the land so assessed, exclusive of the improvement conferred
upon it.[59] The roll must show in separate amounts the damages awarded
and the benefits assessed in the case of each parcel of land.
After the roll is made up, a notice describing the location of
the lands appropriated, the character of the improvement, and the
boundaries of the district to be assessed, is published once a week
for two weeks in some daily newspaper. This notice also names a day,
not earlier than ten days after the date of the last publication, for
hearing remonstrants, and states that the assessment roll with the
names of the owners to whom damages have been awarded and against whom
assessments have been made is on file in the office of the board of
park commissioners. A written notice is served upon the owner of each
piece of land which is taken or damaged and a notice is mailed to the
persons against whom assessments have been made.
After the hearing, the assessment roll is confirmed with or without
changes by the park board, and aggrieved owners then have fifteen
days to perfect an appeal to the superior court. This is the first
important difference between the procedure in Indianapolis and that in
Kansas City and Denver, and is one of the reasons for its extraordinary
effectiveness. Land taking in Kansas City and Denver is from the start
a court proceeding, but in Indianapolis the details of procedure, such
as the making up of the award of damages and the spreading of the
special assessments, are almost entirely taken care of by the clerical
force connected with the board of commissioners. Only rarely is a
judicial tribunal called upon to exercise jurisdiction. Even in appeal
cases the jurisdiction of the superior court is limited.[60] It may
decide whether the park board has properly taken jurisdiction by the
observance of the formalities imposed in the act; it may review awards
of damages and assessments for benefits; but there is no appeal from
the finding of the park commissioners that it is necessary to take
private land, and that it is necessary to take the particular land
included in their resolution.
Owners of land which is taken or which is assessed for benefit have no
constitutional or statutory right in Indiana to have their damages or
their assessments fixed by a common law jury, but in its discretion the
superior court in appeal cases may appoint a small board of appraisers
to pass upon the evidence. This is the second advantage in procedure.
Finally, in Indiana the superior court is a court of last resort in
condemnation cases under the park act. By the terms of the act the
judgment of the superior court can not be appealed from,[61] and there
is no other legal process in the state by which a case can be reviewed
by a higher tribunal. The court of appeals said in the case of City of
Indianapolis _vs._ L. C. Thompson Manufacturing Co., 40 Ind. App., 535:
“In this state since the adoption of the code of 1852, the use of the
right of certiorari has not been authorized and the only procedure
by which the judgment of a lower court may be reviewed by the court
is by way of appeal.... Judgment, in a proceeding where the right of
appeal is specifically denied by the legislature is not reviewable by
the supreme court or this court.... Whether the lower court committed
error in the measurement of damages, the admission of testimony in
assuming jurisdiction over the person or subject matter, or in any
other matter, is not subject to our review on appeal.... There is no
vested right in an appeal and the legislature has the power to grant
or deny appeals as it deems best.”
Besides possessing the advantages in legal procedure which eliminate
the usual delay and expense in land taking, the Indianapolis park
commission has adopted a businesslike practice which is most helpful
in arriving at awards and which appeals to the sense of fairness of
the land owner. A complete card catalogue of owners and valuations is
kept in the office of the commission, and in the case of every taking
the commission has the assistance of real estate experts as an advisory
committee on valuations.
Although the act is only three years old, there has been at least
one considerable taking in each district. In the North Park District
there have been two, one involving an expense of $154,420 and the
other $131,662. In takings involving over $600,000 worth of property
and several thousand owners, there have been only four appeals from
the findings of the park board, two of which have been decided by the
superior court. In one an award of damages of $10,000 was increased to
$17,000 and in the other an award of $6,925 was increased to $9,800. In
one proceeding 1,600 owners were involved and only 50 were present at
the hearing of remonstrants.
All these advantages contribute to excellent results under the park
act, but a factor which is quite as positive in its influence is the
effect on the community of distributing the cost of land acquirement by
levying it as a special assessment entirely on the district specially
benefited. Petitions either to have damages for land takings increased
or to have assessments decreased are not popular when the bill is to be
paid not out of the returns from the general tax but out of the pockets
of the petitioners’ neighbors.
The combination of a simplified legal procedure, a wise business
practice, and an equitable method of distributing the cost of an
improvement has made it possible for the city of Indianapolis to take
land needed for public use at a fair price and with little delay.
The park board is, however, limited in its activities by the terms
of the act which provide that the aggregate amount of benefits which
may be assessed against property in a ten-year period can not exceed
$1,250,000, and that in any one year it can not exceed $200,000.
5. SPECIAL ASSESSMENTS IN ACQUIRING LAND FOR STREET PURPOSES
The right to levy a special assessment for such street improvements
as do not involve the taking of land, such as grading, paving,
curbing, and sidewalk construction, is almost universally granted
to municipalities by legislation in the United States. But the use
of the special assessment, although common in New York, New Jersey,
Pennsylvania, and the central and western states, is most limited in
the cities of the South and in New England. It is practically unknown
in New Hampshire; and in the other New England states only the cost
or a portion of the cost of some one improvement, very often the
construction of sewers, is assessed specially on private property.
There is, to be sure, in Massachusetts, a rather general practice of
accepting streets as public highways only after they have been brought
by the abutters to an established grade.
Speaking generally, in street improvements which require the taking
of land, as in openings, widenings, or extensions, more often than
in takings for parks, the cost of the land is defrayed by a special
assessment. The practice in this regard is likely to follow the
practice in defraying merely construction cost. We have already seen
that the cities of Ohio are prohibited from employing such assessment;
in other cities, of which Philadelphia and Boston are the best
examples, although the right to levy a special assessment is given to
the municipality, in practice little if any of the cost of land taking
gets assessed, because in Philadelphia juries are averse to finding a
benefit, and in Boston the right to assess specially is limited and the
procedure ineffective. Where assessments are made, the practice is as
varied as in assessments for the acquisition of land for parks.
AGENCY WHICH ASSESSES THE BENEFITS. Ordinarily the same agency which
awards damages for land taking determines the amount of the special
assessment which is to be levied for the special benefit resulting from
the improvement, whether that agency be a small board of appraisers,
commissioners, or viewers, as in New York, Chicago, St. Louis, Kansas
City, Portland (Oregon), and other cities; or a department of the city
administration, as in Milwaukee, Indianapolis, Los Angeles, and Boston.
The usual practice is to assess the benefits at the same time that the
damages are awarded and thus offset the benefits against the damages
wherever possible. In cases where the damages awarded are increased or
assessments are decreased on appeal, either the city must assume the
deficiency or the assessing board must find more benefited territory on
which to spread the required amount.
The street commissioners of Boston, however, and boards with like
powers in the other cities of Massachusetts, are compelled by statute
to postpone the assessment of benefit until the completion of the
improvement,[62] a practice the disadvantage of which is evidenced by
the difficulty in collecting the assessments, as will be seen later.
In Seattle and other cities of Washington, the special assessments are
apportioned by eminent domain assessors, a different tribunal from that
which awards damages.[63] Sometimes a year elapses from the time of the
final award for damages to the appointment of assessors, and during
this year the amounts of the award are bearing interest. The eminent
domain assessors review the same evidence that was heard by the jury
in the land damage cases. An amendment has already been proposed which
will allow the board of eminent domain assessors to award damages and
apportion assessments at one hearing.
THE PROPORTION ASSESSED. It is the general practice to leave the
proportion of the cost of land which is to be assessed on the
municipality and the proportion which is to be assessed on property
specially benefited to the discretion of the board which levies the
assessment, limited only by the provision that the special assessment
shall not exceed special benefit and shall not exceed a certain
percentage of valuation of the property assessed. But in New York
the board of estimate and apportionment is given this duty in all
cases,[64] and in Boston[65] the proportion which private property
shall pay is fixed by law, not to exceed 50 per cent of the cost of
improvement,[66] which cost includes both the amount awarded for land
damage and the cost of construction. Theoretically, the proportion
assessed on the municipality at large and on private property should
depend on the extent to which the improvement, as, for instance, the
widening or opening of a street, serves a general or a purely local
purpose. Practice does not follow theory. Some jurisdictions assess
specially the whole or a large portion of the cost of all ordinary
street openings on the property particularly benefited. In Milwaukee
it is the unwritten rule to assess two-thirds of the cost on private
property. In Kansas City it is the exception for the city to pay any
part of the cost of street improvement out of its general revenue.
The history of special assessments for street purposes in New York and
Boston furnishes an interesting comparison. Previous to 1902 the policy
of the board of estimate and apportionment in New York City was to
assess the entire cost of opening proceedings on the property specially
benefited, and subsequently to grant relief, depending usually on the
skill with which property owners were represented at the hearing. The
result was that almost all the expense of opening streets over 50
feet wide was borne by the city.[67] The city’s bonded indebtedness
was greatly increased and it became impossible to execute important
improvements.
From 1902 to 1907 the opening and widening of streets 60 feet wide
and under was regarded as a purely local benefit and the entire cost
assessed on property benefited; but for streets over 60 feet in
width[68] there was a different distribution of cost. In the case of
new streets the city assumed one-third of the cost due to the excess in
width over 60 feet. Where the streets were old and were widened to over
60 feet, the city assumed one-half of the cost due to the excess width.
During these years the city was called upon for a contribution of
$9,471,550 toward the cost of widening and opening streets, which put
upon the city a greater burden than the old method where assessments
were reduced on a plea for relief. The board of estimate and
apportionment found also that this method was inequitable to the owners
of land abutting on the 60-foot street. A street over 60 feet in width
was held to be of more general benefit than one of narrower width, and
the area over which the assessment could be spread was bounded by a
line midway between the widened street and the nearest street of the
same or greater width. Thus in widening a street to 80 feet, after the
payment out of the general municipal revenue of one-third of the cost
due to excess width and after the assessment on property in the benefit
zone not abutting on the widened street, it was found that abutting
property was paying only the equivalent of the cost of a street 51
feet wide. For this reason, therefore, and because of the greater
burden on the municipality, the rule adopted in 1907 was to assess
the entire cost of the acquisition of land for street purposes on the
property specially benefited, in so far as a special benefit could be
established, provided that the amount assessed would not result in
confiscation of the property.[69]
In Boston previous to 1891 special assessments to defray the cost of
street improvements were levied entirely according to the discretion of
the board of street commissioners, whose practice was to assess private
property only in the case of improvements which had more than a local
character and to pay for strictly local street improvements out of the
general appropriation. In 1891 a board of survey was created and that
board in its discretion was allowed to assess on abutting property the
entire cost of improvement.[70] In practice the board used this right
only on purely local streets, applying the theory that on such streets
the general public received no appreciable benefit. In 1902 large land
holders and their representatives insisted on changing the law and were
helped by the decision in Lorden _vs._ Coffey, 178 Mass. 489, which
declared unconstitutional that part of the board of survey act which
allowed the assessment of the entire cost of improvements, holding that
a special assessment might exceed the special benefit to property under
the provision of the act. There was no finding that the entire cost
could not be assessed on a benefited area, and had the board of survey
act included the words “but no assessment shall be levied in excess
of the actual special benefit to the property” the law would probably
have been declared constitutional. The statute of 1902[71] limited
the amount of a special assessment to 50 per cent of the cost of an
improvement, no matter what the width or the use of a street.
The evolution in New York is toward a proper rule of apportionment, and
in Boston, away from it. Either the assessing board should be given
discretion in the matter of assessments, with the usual limitation that
there should be no special assessment exceeding special benefit, or a
system of apportionment should be adopted based on the width of streets
as evidence of their character and use and as a measure of their public
and private benefit.[72]
THE AREA OF SPECIAL BENEFIT. The determination of the specially
benefited area is left to the discretion of the assessing board, with
very few exceptions. In Philadelphia this area is limited to such
properties as abut on the improvement; in Boston[73] it is fixed by
the statute of 1902 to 125 feet on either side of the improvement;[74]
in Milwaukee it is limited in practice to 1,000 feet on either side
of the improvement. Under the boulevard law in St. Louis only the
properties abutting on boulevards can be assessed specially for their
cost.[75] The improvement known as the “King’s Highway” was assessed
under this law with the result that the city would have had to pay 80
per cent of the total cost of improvement, and was forced either to
abandon it or to repeal the law. Subsequently the King’s Highway was
opened as an ordinary street with the same assessment provision as in
street openings, which leaves the benefit area to the discretion of the
commissioners.
Though it may be generally stated that the size of the benefit district
and the amount of the special assessment levied are both legislative
questions which are finally determined by the body to which is
delegated this duty, and that in the absence of special constitutional
limitation the legislative finding will not be reviewed by a court
unless there is evidence of gross error or fraud, judicial decisions
in several states have held that this legislative authority is not
unlimited. Courts on appeal have asserted the right to review the
apportionment of the assessment and declare it invalid.
(1) Where the benefit of an improvement is entirely general: Hammett
_vs._ Philadelphia, 65 Pa. St. 146; Thomas _vs._ Gain, 35 Mich. 155;
Detroit _vs._ Daly, 68 Mich. 503.
(2) Where the rule of assessment would be inequitable for any reason:
In re Washington Av. 69 Pa. St. 352; Scranton _vs._ Pa. Coal Co. 105
Pa. St. 445; Chicago _vs._ Learned, 34 Ill. 203; White _vs._ Gove, 183
Mass. 333.
(3) Where the special assessment exceeds the special benefit: Seely
_vs._ Pittsburgh, 82 Pa. St. 360; Lorden _vs._ Coffey, 178 Mass. 489;
Norwood _vs._ Baker, 172 U. S. 269.
THE RELATION OF SPECIAL ASSESSMENTS TO AWARDS FOR LAND TAKINGS
In our review of the practice in special assessments we have seen that
in some jurisdictions the determination of awards for land takings and
the apportionment of the special assessment are distinct functions
performed either by the same body or by different bodies at times which
may be widely separated. Thus in Denver the park commissioners spread
the assessment which is based on their estimate of the land cost before
the appraisers who determine the land awards are appointed; in Boston
the street commissioners have both functions, but assessments can not
be levied until the completion of the improvement. In Seattle three
assessors, or three eminent domain commissioners, levy the special
assessment at least a year from the time when the jury’s awards for
land takings have been finally confirmed; under the Minneapolis park
procedure assessors are not appointed by the court until the cost of
land is finally determined by confirmation of the appraisers’ report.
In other jurisdictions both the awards for land and the assessment
for its cost are functions performed in the same proceeding by the
same body. Thus in Kansas City a jury of six, and in Indianapolis
commissioners, have these duties.
The disadvantage of deferring the time of levying the assessment is
generally considered to outweigh the advantage of a more certain
knowledge of the amount of the land awards, which is the largest item
of the cost to be assessed. But the necessity of keeping separate the
items of awards for damages and of assessment for special benefit,
though they may be best fixed at the same time, appears from the
methods in very general use of offsetting benefits against damages in
arriving at verdicts in condemnation cases.
In Pennsylvania the jury in condemnation cases must find:
1. The value of the premises before the taking.
2. The value of the premises after the taking, which includes
the benefit to the premises by the taking. The difference is the
compensation to the owner.
In Portland, Oregon, a verdict is made up of:
1. How much, if any, less valuable the land will be rendered by the
taking.
2. The damage to the improvements; that is, to buildings, and so forth.
Both of these rules of damage are open to either of two objections:
First, in some jurisdictions juries are averse to finding any benefit,
in which case a much greater sum than is just is spread over a benefit
district, and owners who have justly received as damages large sums
for land taken or damaged pay entirely inadequate assessments for the
special benefit which they have received. Second, if the jury gives
full consideration to the benefit which a piece of property receives
and subtracts the full amount of benefit from the compensation awarded
for damages to the property, the owner has a decided grievance because
he may be paying $100 for one hundred dollars’ worth of special
benefit, but his neighbor on the other side of the street whose
property has not been taken is paying in a special assessment only 25
per cent or 30 per cent of the special benefit to his property.
The commissioners appointed in street cases in Minneapolis are directed
to find:
1. The value of land taken.
2. The damage to the land or buildings not taken.
3. The special benefit which accrues to each parcel.
The owner of the property receives as compensation the excess of
compensation for damages over the special benefit. This rule is open
to the second objection which we have discussed above and only in a
less degree is the code of California objectionable which requires the
finding of:
1. The value of the land and buildings taken.
2. The damage to the land and buildings not taken.
3. The benefit to the remainder, which must be deducted from (2).
Thus in California the owner of property taken will have as damages
at least the value of the land taken, whereas in the Minneapolis
street procedure it is conceivable that the owner might not receive as
compensation the value of the land taken.
The better rule in these cases is illustrated by the Kansas City
procedure where the jury must find:
1. The actual value of land or easement taken.
2. The actual damage to land or buildings remaining.
3. The assessment which is to be levied against the city at large.
4. Special assessment against each parcel of land found specially
benefited.
Only this special assessment (4) may be deducted from the owner’s
compensation for damage (1) and (2).
THE EFFICACY OF SPECIAL ASSESSMENTS
It is clear that the value of the special assessment method differs
considerably in different communities and depends greatly on local
conditions. The land owners of Kansas City and Denver pay special
assessments practically without litigation, and as a general rule,
in most cities, collection of assessments is attended with little
difficulty, even where the burden is heaviest on the land owner.
The process of collection in New York City, for instance, is very
effective. Like most cities where the cost of street improvement is
assessed wholly or in part on property specially benefited, the owners
of the land assessed may pay the entire assessment at once or in annual
instalments. On the failure in payment of any instalment, the land
becomes charged with the city’s lien. For three years the owner may pay
interest on the amount he owes the city, but at the end of this period
the city’s lien for all charges against the land is sold at auction to
the person who bids the lowest rate of interest for which he will pay
the face value of the lien and carry it three years more. Thus the city
gets its money and the land owner merely has, in addition to the face
of his assessment, an interest charge which is apt to be ridiculously
low since the bidding in on city liens is usually active.
Boston is one of the few exceptions to the rule in the collection
of special assessments. Property owners contest special assessments
wherever a contest is made worth while by the size of the special
assessment, and reductions in assessments by juries on appeal go far
to destroy the effectiveness of this method as a means of providing
funds for the acquisition of land; and yet land owners in Boston are
treated much more leniently under the law of 1906 than they are in New
York, Kansas City, Denver, or Indianapolis. One explanation of the
unpopularity of the special assessment principle is that the funds used
for improving the old city and opening and widening the streets were
taken out of the general appropriation, and property owners, therefore,
in the newer sections, or property owners in older sections where
openings and widenings are necessary, are opposed to any innovation
which puts on them a heavier burden. But the ineffectiveness of the
special method in Boston is due chiefly, first, to the statutory
limitation on the discretion of the assessing board; and second, to
the provision which postpones the apportioning of the assessment until
after the completion of the improvement.
The fixing of the proportion which the city must pay irrespective of
the character of the street in question and the narrow limitation of
the benefit area, work together to place upon a very few owners an
altogether disproportionate burden. These are the unfair features of
the Boston assessment law: (a) The city must pay 50 per cent at least
of the cost of a purely local street, even a street 30 feet in width,
the only direct benefit from which is to abutting properties; (b)
the city in practice pays as high as 80 per cent of the cost of such
streets, because in the opinion of the commissioners the value of the
property within 125 feet on either side is sometimes so low that to
assess 50 per cent on it would amount to confiscation; (c) the property
that receives the most benefit is assessed nothing, particularly in
the case of a widened thoroughfare where the benefit accrues certainly
no more to the abutters than to the termini of the thoroughfare, or
to abutters on the streets leading off from the thoroughfare whose
property has been made more accessible.
The time which is allowed to elapse between the opening or widening of
the street and the levying of the assessment is a further handicap to
the success of special assessments in Boston as to a less degree in
Seattle. The chance of offsetting benefits against damages is lost,
and consequently the labor of collection is increased. Property owners
who get their damages for land taken, alienate the property, and the
owner not a party to the condemnation proceedings who has paid to his
predecessor in title an increased price on account of the improvement
to the property, naturally opposes payment of a special assessment.
That most of the action under the law is a perversion of the special
assessment principle has been recognized in recent Massachusetts
special legislation, where the limitation on the assessment area has
been removed and the size of the area left to the discretion of the
street commissioners.[76]
A comparison of the returns from special assessments in Boston, in
Seattle, and in Minneapolis, may be made by means of the subjoined
tables:
TABLE 3.—RETURNS FROM SPECIAL ASSESSMENTS ON STREET IMPROVEMENTS.
BOSTON, 1895-1906
==================+======+===========+========+============+========
Location of | Year | Cost of | Amount | Amount | Amount
improvement | |improvement|assessed|of reduction| paid
——————————————————+——————+———————————+————————+————————————+————————
Lauriat Ave. | 1895 | $45,779 | $41,201| $34,811 | $6,390
Brighton Ave. | 1895 | 201,699 | 117,270| 42,506 | 74,764
Columbus Ave. | 1895 | 1,818,901 | 373,127| [77] | [77]
Peterboro St. | 1896 | 187,264 | 95,457| 78,983 | 16,474
Queensberry St. | 1897 | 196,568 | 87,565| 32,448 | 55,117
Charlestown St. | 1898 | 696,673 | 212,229| 81,830 | [78]
North Harvard St. | 1898 | 70,443 | 23,721| 11,162 | 12,559
Bennington St. | 1899 | 831,816 | 54,812| [79] | [79]
Florida St. | 1903 | 16,120 | 4,392| 2,668 | 1,724
Columbia Rd. | .. | 1,792,891 | 296,493| 13,307 | [80]
| | | | {About | {About
Hyde Park Ave. | 1906 | 225,000 | 28,000| {50 per | {50 per
| | | | {cent | {cent
——————————————————+——————+———————————+————————+————————————+————————
There have been remarkably few contests on any assessments in
Minneapolis. The park board has been able to pay every instalment on
every certificate as it matured without a moment’s delay. All the
assessments are collectible as a part of the annual tax for state,
county, and city purposes.
In Minneapolis, Kansas City, and Denver the amount collected shrinks
but little from the
TABLE 4.—RETURNS FROM SPECIAL ASSESSMENTS ON STREET IMPROVEMENTS.
SEATTLE
=======================+==========================+==============
| COST OF LAND TAKING AND |
Location of improvement| LAND DAMAGE | Cost of
|————————————+—————————————| Construction
| Regrading | Widening |
———————————————————————+————————————+—————————————+——————————————
Second Ave. from | | |
Pike St. to Denny | | |
Way | $20,501.00 | $32,165.00| $91,579.06
Third Ave. from | | |
Yesler Way to | | |
Pike St. | 27,959.00 | 1,533,888.00| 42,175.55
Fourth Ave. from | | |
Washington to | | |
Park St. | 64,007.00 | 623,158.00| 299,547.16
Fifth Ave. from | | |
Washington St. | | |
to Madison St.[82] | 217,824.56 | .... | 155,058.92
Pine St. from First | | |
Ave. to Twelfth | | |
Ave. | 54,871.50 | 592,773.36| 108,297.68
Dearborn St. from | | |
Seattle Boulevard | | |
to Rainier Ave. | 15,945.00 | 277,509.50| 343,063.18
———————————————————————+————————————+—————————————+——————————————
Total |$401,108.06 |$3,059,493.86| $1,039,721.55
———————————————————————+————————————+—————————————+——————————————
=======================+=============+===============+==============
| |Amount assessed| Amount paid
Location of improvement| Total Cost | on property |out of general
| | specially |appropriation
| | benefited[81]|
———————————————————————+—————————————+———————————————+——————————————
Second Ave. from | | |
Pike St. to Denny | | |
Way | $168,100.97| $144,245.06 | $23,855.91
Third Ave. from | | |
Yesler Way to | | |
Pike St. | 1,612,074.55| 1,604,022.55 | 8,052.00
Fourth Ave. from | | |
Washington to | | |
Park St. | 987,212.16| 986,712.16 | 500.00
Fifth Ave. from | | |
Washington St. | | |
to Madison St.[82] | 377,461.48| 372,883.48 | 4,578.00
Pine St. from First | | |
Ave. to Twelfth | | |
Ave. | 761,065.68| 755,942.54 | 5,123.14
Dearborn St. from | | |
Seattle Boulevard | | |
to Rainier Ave. | 678,218.11| 636,517.68 | 41,700.43
———————————————————————+—————————————+———————————————+——————————————
Total |$4,584,132.95|$4,500,323.47 | $83,809.48
———————————————————————+—————————————+———————————————+——————————————
DISTRIBUTION OF THE COST
TABLE 5.—RETURNS FROM SPECIAL ASSESSMENTS ON IMPROVEMENTS. MINNEAPOLIS,
1889-1908
=======================+=====+===========+=========+============
Location of improvement| Year| Cost of | Amount | Amount
| |improvement| assessed| paid
———————————————————————+—————+———————————+—————————+————————————
Glenwood Park |1889 | $295,825 |$100,000 |$100,000
Van Cleve Park |1890 | 75,348 | 75,000 | 75,000
Loring Park |1890 | 343,693 | 105,000 | 105,000
Powderhorn Lake Park |1891 | 262,387 | 145,099 | 145,099
Columbia Park |1892 | 220,447 | 213,041 | 213,041
St. Anthony Parkway |1893 | 150,337 | 102,911 | 102,911
The Parade |1904 | 280,225 | 103,127 | 72,189[83]
Kenwood Park |1907 | 162,846 | 162,187 | 64,875[84]
The Gateway |1908 | 634,510 | 634,510 | 126,902[85]
———————————————————————+—————+———————————+—————————+————————————
amount assessed. In Indianapolis and in Chicago a five per cent
delinquency is figured in the amount of the total assessment, so that
the return adequately meets the cost of the improvement. Indianapolis
has collected in the past three years (1909 to 1912) by the assessment
method $476,487. Kansas City has collected $8,724,919 in twenty years.
CONCLUSION
Special assessments as an equitable method of distributing the cost
of land acquirement have the great advantage of a thorough testing.
Judicial decisions universally sustain their legality. Ample precedents
prove their practicability as financial expedients. Several cities in
the United States are so completely satisfied with the results of an
experience of from five to fifteen years with this “American device”
that the suggestion of experimenting with the European method of
distributing the cost known as excess condemnation meets with little
enthusiasm. It remains, however, to consider the applicability of
excess condemnation to American conditions.
FOOTNOTES:
[29] Constitution of Wisconsin, Article XI, Section 3.
[30] Acts of Wisconsin, 1891, Chapter 179, Section 8. Special laws of
Minnesota, 1889, Chapter 30, Section 2.
[31] _Quarterly Journal of Economics_, April, 1893.
[32] Colonial Laws of New York, Vol. I, pp. 269-271.
[33] 4 Massachusetts Colonial Records, Part I, p. 327.
[34] Cited in Hammett _vs._ Philadelphia, 65 Pa. St. 158.
[35] Ancient Charters of Massachusetts, pp. 389, 651.
[36] Tenth Session Laws of New York, Chapter 88, p. 544.
[37] Theory and Practice of Special Assessments. Transactions. American
Society of Civil Engineers, Vol. 38. Paper 817.
[38] Constitution of Ohio, with Amendments proposed by Constitutional
Convention of 1912, Article XVIII, Section 11.
[39] Acts of Massachusetts, 1882, Chapter 154, Section 7.
[40] Report of the Chief Engineer of the Board of Estimate and
Apportionment, October 19, 1907, pp. 15 ff.
[41] Op. cit. pp. 20 ff.
[42] Rose Reis _vs._ City of New York, _et al._, 188 N. Y. 58.
[43] See Appendix, p. 249 for text.
[44] Special Laws of Minnesota, 1889, Chapter 30, Section 4.
[45] Charter of Kansas City, Article 13, Section 8 ff.
[46] Charter of Kansas City, Article 13, Sections 33 and 34.
[47] Charter of Kansas City, Article 13, Section 23.
[48] See p. 28.
[49] See Appendix, p. 250.
[50] Charter of Kansas City, Article 13, Section 19.
[51] Charter of Kansas City, Article 13, Section 24.
[52] Report of Board of Park Commissioners, 1909, Table 22.
[53] Londoner _vs._ City and County of Denver, decided November 22,
1911.
[54] Denver Municipal Facts, 1911, Vol. 23, p. 14.
[55] Op. cit. Issue of March 11, 1911, p. 8.
[56] Londoner _vs._ City and County of Denver.
[57] Acts of Indiana, 1911, Chapter 231.
[58] Ibid., Chapter 231, Section 14. Parts of the text are given in
Appendix, p. 254.
[59] Acts of Indiana, 1911, Chapter 231, Section 17.
[60] Acts of 1911, Chapter 231, Section 19.
[61] Acts of 1911, Chapter 231, Section 20.
[62] Acts of Massachusetts, 1906, Chapter 393; and Revised Laws,
Chapter 50, Section 1.
[63] Acts of Washington, 1907, Chapter 153, Section 20.
[64] Charter of New York City, 1901, Article 950.
[65] Acts of Massachusetts, 1906, Chapter 393, Section 5.
[66] Changed by Chapter 536, Acts of 1913.
[67] Report of Chief Engineer, Board of Estimate and Apportionment,
October 19, 1907, p. 3.
[68] Ibid., p. 14.
[69] Report of Chief Engineer, Board of Estimate and Apportionment,
October 19, 1907, pp. 5 ff.
[70] Acts of Massachusetts, 1891, Chapter 323, Sections 14, 15.
[71] Acts of Massachusetts, 1902, Chapter 521, Section 14.
[72] Acts of Massachusetts, 1913, Chapter 536, gives the street
commissioners discretion and removes the limit of 50 per cent.
[73] Acts of Massachusetts, 1902, Chapter 521, Section 1.
[74] This restriction was removed by Acts of Massachusetts, 1913,
Chapter 536.
[75] Charter of St. Louis, 1901, Act VI, Section 1.
[76] Acts of Massachusetts, 1913, Chapter 536, removes both limitations
on the discretion of the Boston street commissioners in the special
case covered by the act.
[77] Fifteen petitions for reduction of assessment are pending and no
payments have been made.
[78] Thirteen petitions for reduction of assessments and two writs
of certiorari are pending. The latter question the validity of the
assessment.
[79] Acts of 1912, Chapter 537, compels the street commissioners to
reduce this assessment. See Appendix, p. 268, for the text of act.
[80] Sixty petitions for reduction of assessments are pending. Acts of
1912, Chapter 339, authorized a reduction of assessments. See Appendix,
p. 267.
[81] For each specified improvement the amount assessed on property
specially benefited equals the sum of the cost of land taking and land
damage and cost of construction.
[82] Widening not yet done. Amounts are those used in making assessment
roll.
[83] Three instalments unpaid.
[84] Six instalments unpaid.
[85] Eight instalments unpaid, January 1, 1912.
CHAPTER IV
EXCESS CONDEMNATION
Excess condemnation, or the taking by a public agency under the power
of eminent domain of more land and property than are needed for the
actual construction of a contemplated public improvement with a view
to selling the excess at such increase of value as may result from the
improvement, offers, as suggested in the last chapter, a method of
relieving the burden of the tax payers at large, and it is this feature
that is likely to be emphasized in any discussion of the merits of the
excess condemnation principle; but, entirely apart from its financial
aspect, it has an importance in the execution of plans which is too
little considered. We have seen in the first chapter that a serious
obstacle to the realization of plans for improvement is the universal
constitutional limitation on the power of eminent domain through the
provision that land can not be taken unless it is “necessary for the
public use.” The usual narrow construction of this phrase allows a
public agency to take only the land or rights in land required for the
actual use of the public. When a comprehensive plan of reconstruction
involves the widening of a built-up street or the opening of a new
street cutting through improved property, the municipality is allowed
to take just enough land for the actual construction of the street
irrespective of the size or shape of the lots left on either side of
the improvement.
The disadvantage to the municipality is both physical and financial.
The land owner receives as compensation both the value of land actually
taken and the damage to his remaining land, and consequently often
gets as much for a part of his lot as he would for the whole of it.
Even where special assessment laws work effectively it is often
impossible to show ground for such an assessment against a remnant
that is distinctly inferior to the customary marketable lot in size
or shape. In the absence of any effective control over remnants left
by the construction of the improvement, the new highway is likely to
be bordered by ugly vacant lots of irregular shape and size which are
totally unsuited for use and likely to remain vacant until they can be
brought under the same ownership with parts of adjacent lands so as to
provide adequate building lots. One of the most marked instances of
this was in the widening of Delancey Street to make a proper approach
for the Williamsburg Bridge in New York City, where lots were left in
some cases less than 10 feet deep. The plan for the establishment of a
new traffic thoroughfare between the north and south terminal stations
in Boston shows remnants, the entire length amounting to 48,274 feet,
absolutely unsuited for independent development.
In so far as remnants are unsuited for proper development a use of them
is induced which robs an improvement of much of its effectiveness.
Financially the city loses because the sort of development which
will increase assessed valuations is prevented. Esthetically the
city suffers because it can not protect its streets, its parks, and
boulevards by an effective control over the abutting land, and its
show places are disfigured by a use of this land not in keeping with
the character of the surroundings. It is for this reason that cities
have been forced to see approaches to public buildings lined with
ill-assorted structures, and park areas surrounded by unsightly dumps
and bill-boards. The net benefit to the city of a given expenditure for
park purposes may easily be reduced by these means to a small fraction
of what was reasonably expected when the investment was made. To
overcome these disadvantages and to secure the maximum of benefit from
an improvement appears to be the primary aim of excess condemnation
legislation in the United States.
It will clear the way for a discussion of the subject to point out
the nearest substitute for the excess condemnation method which is
ordinarily available in America today. The absorption by the public of
the increase of property values directly resulting from an improvement
made at public expense, at least up to an amount equal to the cost
of the improvement, may be more or less successfully accomplished
by special assessments as set forth in Chapter III. The control
over property adjacent to a public improvement just in so far as
that control is needed to enable the public to get the full use and
enjoyment of the public property, may be obtained without acquiring
title by the purchase or condemnation of easements. The combination of
the two is believed by the more conservative thinkers on the subject to
afford all the power that is necessary without the dangers of excess
condemnation.
THE HISTORY OF EXCESS CONDEMNATION IN THE UNITED STATES
The Massachusetts legislature of 1903[86] provided for an examination
and report upon legislation needed to enable a city, town, or state
commission to take in fee, to purchase, or otherwise to acquire for
public purposes and in connection with any public work all or any part
of the land within certain defined limits, and after appropriating
as much of the land as necessary to sell or lease the remainder. The
commission subsequently appointed by the governor did a thoroughgoing
piece of work and their conclusions, embodied in two reports to the
legislature of 1904, both now out of print, contained very valuable
contributions on a subject on which there is scant literature.[87]
The commission found no precedent and little of value on the subject
of excess condemnation in this country, and in the cities of Europe
they found the principle applied in two very different ways. In
France, according to the letter of the law, only remnants of such
size and shape as to be unsuited to the erection of buildings could
be taken in addition to the land actually needed for the construction
of the improvement. In England, Belgium, Switzerland, and Italy,
municipalities were allowed to take all the property within certain
bounds in the neighborhood of a proposed work, to use what was
necessary, and to dispose of the remainder by sale or lease. In the
bill which was submitted by the Massachusetts commission, the French
method was adopted as sufficiently broad to carry out the purposes of
the municipality and as being more fair than the other method cited to
the property owner whose land would be taken. The draft of the bill was
passed with modifications by the Massachusetts legislature of 1904 and
is known as the “Remnant Act,” the principle of which is contained in
the following clauses:
Section 2. The Commonwealth, or any city in the Commonwealth ...
may take in fee by right of eminent domain the whole of any estate,
part of which is actually required for the laying out, alteration or
location by it of any public work, if the remnant left after taking
such part would from its size or shape be unsuited for the erection
of suitable and appropriate buildings, and if public convenience and
necessity require such taking.
Section 15. The Commonwealth or the city, as the case may be, shall
determine within six months after the completion of any public work
for which land is taken under this act, or within six months after the
filing of a final decree on an appeal taken under this act, whichever
shall happen later, with which of the adjoining properties the public
interests require that each parcel of land, if any, taken outside the
boundaries of the public work should be united; and shall, within
said six months, notify the owner of such adjoining property, if his
address is known, of this decision by registered letter mailed to such
owner, and shall annex to the notice a copy of this section.
Section 16. If such owner or some person on his behalf shall within
two weeks from the mailing of such notice notify in writing the
Commonwealth or the city that such owner wishes for an appraisal of
such parcel, the Commonwealth or the city shall cause such parcel to
be appraised by three competent and disinterested persons, one of whom
shall be appointed by the Commonwealth or the city, one by said owner,
and one by the superior court for the county: _Provided, however_,
that the Commonwealth or the city and said owner may in writing
appoint a sole appraiser. Said appraiser or appraisers shall forthwith
after his or their appointment view the property and determine the
fair value of such parcel, and shall make written report to the
Commonwealth or the city of the same. The reasonable fees and expenses
of the appraiser or appraisers shall be paid by the Commonwealth or
the city. The Commonwealth or the city shall forthwith by writing
mailed to such owner offer such parcel to such owner at the value as
determined by the report of a majority of such appraisers, or by that
of the sole appraiser in case of the appointment of one appraiser.
Section 17. If such owner shall in writing accept said offer within
two weeks after the date when the same is mailed to such owner, the
Commonwealth or the city shall convey such parcel to such owner on
payment of the purchase money to the Commonwealth or the city, as the
case may be, within thirty days after the acceptance of the offer.
The conveyance shall be by deed, with or without covenants of title
and warranty, executed and acknowledged in the name and behalf of the
Commonwealth or the city by the officers or board which have or has
taken such parcel, or by their or its successors or successor, and may
be made subject to such restrictions as the Commonwealth or city may
in writing have notified the appraisers or appraiser at the time of
their or his appointment would be imposed on such parcel.
Section 18. If such owner fails to accept the offer within the time
limited, or having accepted it fails to make payment or tender of the
purchase money within one month thereafter, the Commonwealth or the
city, if it does not take said adjoining property under the provisions
of section twenty-nine[88] may at any time thereafter sell such parcel
at public auction.
Section 29. If the owner of property adjoining a parcel taken under
this act and outside the boundaries of a public work fails to accept
an offer to sell such parcel to such owner made under the provisions
of section sixteen, or, having accepted such offer, fails to make
payment or tender of the purchase money within thirty days thereafter,
the Commonwealth or city shall cause such parcel to be sold by public
auction, subject to such restrictions as the Commonwealth or city
may impose. Land sold under this section shall be conveyed to the
purchaser in the same manner as land conveyed under the provisions of
section seventeen.[90]
In Ohio[91] and Maryland[92] the principle is incorporated in
legislation for the protection of parks, parkways, and approaches to
public buildings and, as far as the language of the acts indicates,
excess taking can be made only for these specific purposes. The
Virginia Assembly of 1906 passed an act[93] giving the power to condemn
and take more land than is necessary “when the use of the land proposed
to be taken would impair the beauty, usefulness, or efficiency of the
parks, plats, or public property, or which by the peculiar topography
would impair the convenient use of a street or render impracticable
without extra expense the improvement of the same.”
The nearest approach to the European idea of excess condemnation is
found in the acts of Connecticut, 1907.[94] The language of this
clause puts no limit on the amount of land which can be taken. Unless
the courts establish such a limit a broad power is given. The city
is allowed, in fact, to embark on a real estate speculation. By No.
315 of the acts of Pennsylvania, 1907, cities are allowed to acquire
by appropriation private property within 200 feet of the boundary of
parks, parkways, and playgrounds. This act also allows the resale of
surplus land with restrictions in the deed.
The Massachusetts act is the only one directed specifically to the
acquisition of remnants which are made practically unsalable because
of the taking for public use, but only on this ground is it to be
distinguished from the other legislation above cited. In all this
legislation the purpose is to provide a more effective method of
accomplishing an improvement. A primary purpose in every case is either
to lay out or widen a public street or to acquire or protect parks,
parkways, or approaches to public buildings. All of these purposes
are without question public, and the taking of excess land is but an
incident to an acknowledged public purpose; namely, to insure a more
useful wide street or a more attractive parkway. There is no suggestion
either directly or by inference in any of this legislation that the
excess taking is anything more than an incident to a public purpose and
a means of securing the more perfect and successful realization of that
purpose.
THE CONSTITUTIONALITY OF EXCESS TAKING
The Pennsylvania act is the only one which has been tested by judicial
decision.
In July, 1912, the City Council of Philadelphia authorized the taking
of excess land under the legislation of 1907, in connection with the
proposed parkway from City Hall to Fairmount Park. The question of the
constitutionality of the act was squarely raised and the lower court
decided in favor of its validity, but this decision was reversed by the
supreme court of the state.[95]
That the “remnant act” of Massachusetts would be declared
constitutional is suggested in the answer of the Massachusetts supreme
court to a question of the legislature in 1910. The question arose
out of the necessity for a traffic thoroughfare between the north and
south terminal stations in Boston. It appeared to the legislature
impossible to construct a direct thoroughfare between these stations,
unless a power of eminent domain were given which would allow the
acquirement and reallotment of the land adjacent to the thoroughfare in
lots suitable for mercantile buildings. As presented to the court the
question was as follows:
“Is it within the constitutional power of the legislature to authorize
the city of Boston, or such other public authority as the legislature
may select, to lay out such a thoroughfare and rear streets, and to
take not only the land or easements necessary for the same, but also
such quantities of land on either side of said thoroughfare or between
the same and said rear streets as may be reasonably necessary for the
purposes hereinbefore set out, with a view to the subsequent use by
private individuals of so much of the property taken as lies on either
side of said thoroughfare, under conveyances, leases, or agreements
which should embody suitable provisions for the construction on said
land of buildings suited to the objects and purposes hereinbefore set
out and for the use, management and control of said land and buildings
in such manner as to secure and best promote the public interests and
purposes hereinbefore referred to; assuming that the act provides
just compensation for all persons sustaining damages by the said
takings.”[96]
The supreme court interpreted the question briefly as meaning “Can land
be taken with a view to its subsequent use by private individuals?” and
its holding is that where the purpose of excess taking is primarily the
creation of lots suitable for use of private individuals, such a taking
is clearly unconstitutional. The court seems to make a distinction near
the end of the opinion between cases where the excess taking is merely
incidental to the main purpose, and cites the remnant act as such an
example. We have therefore the suggestion that the remnant act might
be found to be a constitutional exercise of power. The suggestion is
of course of no value as a precedent, but is helpful as showing the
sentiment of the justices of the supreme court of Massachusetts.
The doubtful constitutionality of the acts containing the excess-taking
principle and the dissatisfaction with the limitation on the exercise
of the power of eminent domain, have resulted in the effort to modify
the limitation on the powers as now contained in state constitutions
by constitutional amendment. Both the Massachusetts and New York
legislatures have passed such amendments, which were submitted to the
people of both states in the fall of 1911.[97] The New York amendment
was defeated[98] but it is valuable for purposes of comparison.
The Massachusetts amendment was passed by a large vote, and at the
legislative session of 1912 a special act gave the city of Worcester
the right to take excess land for a street widening.[99] The people of
Wisconsin and Ohio in 1912 adopted amendments containing similar wide
powers[100] of excess condemnation.
The New York amendment provided that when private property was taken
for public use by a municipal corporation “additional adjoining and
neighboring property may be taken under conditions to be prescribed by
the legislature by general laws; property thus taken shall be deemed to
be taken for a public use.”
From the viewpoint of the believer in excess taking as an easy means
of correcting a defective street system and as the handmaiden of
reconstruction, the amendment offered in 1911 which was not accepted
by the people of New York was ideally phrased. Any excess taking which
the legislature saw fit to authorize was made constitutional, whether
that taking was a mere incident to a better realization of a public
purpose or whether it was primarily a speculation to recoup the city’s
investment in reconstruction. It is not an answer to the extreme
radicalism of the amendment to say that the legislature would probably
hedge the power of excess taking with limitations. Radical legislation
even in New York is not impossible, and a most radical act of a radical
legislature would have had the stamp of constitutionality placed upon
it by this amendment if the people had accepted it.
The Massachusetts amendment, on the other hand, limits both the
application of the principle and the extent of the excess taking. It
applies only to the “laying out, widening or relocating of highways”
and the amount of land in excess which may be taken is “not more in
extent than would be sufficient for suitable building lots on both
sides of such highway or street.” The amendment leaves open for dispute
the question of what shall be “a suitable building lot,” but this
can best be defined by special act when the peculiar needs of each
improvement are considered.
The Wisconsin amendment makes constitutional an excess taking of
neighboring property for streets, squares, public parks, parkways,
civic centers, and playgrounds and their surroundings, and after the
improvement surplus land may be conveyed with restrictions to protect
the improvement.
Before these amendments to the constitution were proposed, court
decisions were frequent that it was the province of the legislature to
determine whether a proposed taking was necessary for the public use.
When once the legislature had so determined, only in case of a manifest
injustice or where the legislature had obviously overstepped the
bounds of the constitution would the supreme court interfere with the
legislative action. The amendments take away the limitation set in the
state constitution and therefore leave no constitutional question for
the state judicial tribunal to determine. Whether the federal courts
would take jurisdiction of such a case from the state court on the
ground that property is taken without due process of law in violation
of the fourteenth amendment, is still undetermined.
THE EXPEDIENCY OF ADOPTING IN THE UNITED STATES THE EXCESS CONDEMNATION
PRINCIPLE
We are not here considering the value of excess taking where the sole
or even primary purpose is to recoup the municipality’s investment in
a public improvement. Such a use of the power would probably not pass
the constitutional test, would be too open to abuse, and would tend to
draw municipalities into such large speculative holdings of real estate
as might easily overstrain their credit. But in the cases where excess
taking is made primarily to secure the greatest physical benefit from
the improvement, the community is able incidentally to reap a portion
of the increase in values caused by the investment of the community’s
money through the sale of such land as is not actually needed for the
improvement. This method of distributing the cost of an improvement
is supposed to produce a larger financial return to the city than the
special assessment method, and at the same time to avoid the expense of
litigating with property owners the question of benefit.
1. FINANCIAL VALUE OF EXCESS CONDEMNATION
In cities where special assessments to cover a large portion of the
cost of acquiring land are levied and collected, and the tax payers
are not restive, there is little enthusiasm over the European method
of financing reconstruction. But cities in which special assessments
are ineffective or non-existent, as in Boston, Philadelphia, and
cities of Ohio, see in excess condemnation an opportunity to get
for the community a large portion of the increment resulting
from reconstruction with less chance for litigation by the land
holders. No city in the United States has yet experimented with such
condemnation,[101] but precedents from abroad are confidently cited as
establishing its financial value. To determine the soundness of this
opinion would require an analysis of European reconstructions in which
excess takings have been made, and such an analysis depends for its
value so much on a first hand acquaintance with many various sets of
local conditions that to attempt it here is impossible. A review of the
available sources of information on the subject does not make out an
overwhelming case for the financial success of excess condemnation.
FINANCIAL RESULTS IN FRANCE. From 1852 to 1869 new streets were laid
out in Paris which required a total surface of 2,726,000 square yards.
Under the law, the authorities were allowed to take in excess of actual
need for street purposes only when the lots left after the taking were
unsuitable in shape or size for the erection of proper buildings; but
the policy of the French government allowed a very liberal construction
of the law, and ‘remnants’ were taken in some cases 5,000 square feet
in area. Remnants which were at the time of the taking considered
unsuitable for building purposes were subsequently subdivided into
at least two lots, each of which was sold for a building lot. Just
how much excess land was taken for the purpose of new streets in
this period is not known. In 1869 the sales of such land had totaled
$51,800,000, and there was still on hand 728,400 square yards, valued
at $14,400,000. The cost of all the land taken was $259,400,000.
Valuing the excess taking at $66,200,000, the land actually used for
street purposes cost $193,200,000.[102] “In other words, the sale of
lands purchased in excess of the requirements for the purpose of making
new streets, together with the sale of 390,000 square yards obtained
through the discontinuance of old streets, yielded only 25.5 per cent
of the original outlay upon land—$259,400,000. That means that the
efforts to secure a part of the increase in values resulting from the
laying out of 56.25 miles of streets proved unsuccessful.”[103]
No period offered a better opportunity for a successful test of the
principle of excess taking as a method of recoupment. The years from
1852 to 1869 were marked by rapid increase in values. The prices
received by the city for the sale of surplus land were considered
excellent, but the initial cost of all the land condemned had been
enormously heavy and for this the juries were responsible. M. Brelay,
a former member of the Commission des Indemnités, a body established
by the state for the purpose of bringing together without recourse to
the jury, public authorities and owners of land says: “The proceedings
before the juries are among the most discouraging symptoms of the
day. In these proceedings cheating almost has come to be honorable;
the juries willingly accept scandalous statements as to value and
inventories and leases prepared by lawyers and expert valuers who
display a profound knowledge of the extent to which human folly will
go in the person of the juror.” In 1890 awards were so excessive to
owners of land that an award of 50 per cent more than the fair market
value was commented upon as honest by Brelay in his survey of public
improvements in Paris.[104] Awards to tenants, whether merchants or
householders, were even more excessive. In 1888 the city took 48 houses
occupied by tenants who paid an average rental of $54 a year. The
owners of property had the right to dispossess the tenants on three
months’ notice. The tenants’ holdings were therefore worth $13.50—three
months’ rent; the juries awarded an average of $169.[105] In another
case the city offered housekeeping tenants $700;[106] the jury awarded
$13,000. The offer of the city to tenants with trade interests was
increased by the jury from $486,560 to $935,120.[107] To one tenant,
with no trade interest or lease, the city offered $7.40; the jury
gave him $600.[108] “The city had authorized the construction of the
Bourse de Commerce on the assumption that the compensations for taking
for public use would aggregate $5,000,000; in September, 1887, the
compensations awarded aggregated $8,000,000.”[109]
The avowed purpose in the liberal takings between 1852 and 1869 was to
reduce the expense of street improvements. There was no satisfactory
law under which the cost of land for streets could be assessed on
benefited properties, and only by the sale of excess lands could
the expense be reduced. The failure of the method resulted in a
change of policy by the Council of State which, from the time of the
establishment of the present republic, opposed any excess takings
simply for the purpose of resale. When the Trousseau Hospital was
removed the Council of State refused to approve the taking of any
remnant whose area exceeded 650 square feet, even though it was
admitted that the controlling purpose of the city authorities was not
recoupment.[110] Approval was given for the taking of small remnants on
the ground that the additional cost of acquisition was trifling, and
small remnants were readily sold at a price which more than compensated
for the additional cost.
As a result of the experience, both before and after the establishment
of the present republic, it is the consensus of opinion among those who
have had experience with both methods, that extended excess taking _for
the purpose of securing a profit_ from the resale of surplus land is
neither desirable nor profitable.[111]
FINANCIAL RESULTS IN BELGIUM. The law which permits excess taking
in Belgium was passed at the instance of Brussels and to satisfy a
peculiar need. The old city of Brussels had no street system worthy of
the name, and the jumble of narrow, crooked streets and blind alleys
resulted in a most unsanitary condition. Lots, as a rule, were small,
in some cases ridiculously so, one plan showing lots with areas of 150
to 175 square feet. Through the center of the lower part of the city
flowed the River Senne which was little better than an open sewer. The
improvement made possible by the law of 1867 was to carry the river
underneath the city and to build over the old river bed a broad central
thoroughfare, which is now the main business street of the city. The
law fixed no limit to the extent of land which could be taken in excess
of actual needs, and Brussels used the law most liberally.
In addition to the heavy outlay for land, the authorities incurred
extraordinary expenses in order to induce a rapid and yet proper
development of the new streets. Several public buildings were
constructed by the city on the new boulevard; loans were made to
contractors to the extent of one-half of the estimated cost of
buildings; surplus land was sold on very easy terms, the only
requirement being the payment of 4.5 per cent per annum on the
purchase price for sixty-six years, payments which were calculated to
“extinguish the principal of the debt at the end of that term while
giving the city an income on the amount unpaid of 4⅕ per cent.”[112]
These terms proved altogether too tempting and the speculation that
resulted brought about wholesale failure of contractors and purchasers.
In the end the city was forced to complete the construction of the new
boulevard at an expense greatly in excess of the original estimate,
to complete unfinished buildings on which loans had been made, and to
foreclose through the failure of purchasers of lots. Today the city is
the owner of nearly 400 buildings on this thoroughfare known as the New
or Inner Boulevard. The increase in debt occasioned by this and other
improvements was enormous. At the beginning of the year 1867 the debt
was less than $8,000,000; by the year 1879 it exceeded $50,000,000; and
when refunded in 1886 it was about $56,000,000. The city in the early
80’s was on the verge of bankruptcy.[113]
In 1902 it was estimated that the properties acquired by the city in
connection with the new boulevard had cost approximately $6,400,000.
“The value of the properties at the time of acquisition was fixed
either by expert appraisal or the foreclosure sale at $5,200,000.” In
1902 they were believed to be worth about $6,400,000; but on the basis
of the income which the city receives they would not sell for much
more than $5,500,000, and the city is satisfied to keep the properties
which are yielding more than enough “to meet interest and sinking fund
requirements[114] on the amount of debt which could be retired through
their sale.”
Authorities of the city of Brussels without exception consider that
excess taking is the only method which could have produced the Brussels
of today, and the burgomaster, in 1904, was even of the opinion
that the method had been a means of reducing the expense of street
improvements. Other cities of Belgium, by avoiding the extraordinary
expense connected with the building operations under loans undertaken
in Brussels, are reported to have secured a profit out of the sales
of excess lands. This is notably so in the case of Liege. Despite the
financial strain through which Brussels went from 1875 to 1886, it is
probably true that the peculiar conditions of Brussels justified the
extraordinary methods adopted for its improvement; but whatever may
be the consensus of opinion about the success of the experience of
the city with excess condemnation it can not be advantageously cited
as a precedent for the adoption of excess condemnation as a means
of reducing the expense of reconstruction in the United States. The
experience with excess taking in Paris and in the cities of Belgium
shows conclusively that a considerable period must elapse before real
estate contiguous to the improvement increases to any great extent in
value[115] and this experience is confirmed by that of London as shown
below. It has, with surprising uniformity, been at least eight years
in all three countries before such increase has been noticeable. As an
element of the cost of excess condemnation, therefore, the interest on
the outlay for the acquisition of land and buildings must be figured
for a period of eight to ten years.
FINANCIAL RESULTS IN LONDON. From 1857 to 1889 the Metropolitan Board
of Works of London made 14 miles of street widenings and thoroughfares,
for the most part in the central portion of the city, in order to
“supply the deficiencies resulting from centuries of neglect and to
keep pace with the wants of an ever increasing population.”[116] During
these years the policy of the board was most conservative, and in this
respect it differs from both the practice in Paris and the practice
in Belgium. The taking of costly buildings was avoided even at the
expense of the appearance of the street, and such takings as were made
were strictly limited to those properties the whole or a part of which
were required for the actual improvement. The cost of the land taken
for street improvements was $58,859,000, and there was subsequently
recovered from the sale of surplus lands $25,607,000 or 43.5 per
cent.[117] The exact amount of land taken or the land sold is not given
in the History of London Street Improvements, but in connection with
each street the total cost and the total return from sales are given;
and of the 54 separate improvements made by the Metropolitan Board of
Works only one, namely, Northumberland Avenue, shows a profit from the
entire transaction exclusive of cost of construction. The cost was
£711,491 and recoupment from sales, £831,310. The profit in this street
improvement is variously accounted for.[118] In evidence given before
the select committee of the House of Lords the case of Northumberland
Avenue was cited as entirely exceptional, because the Duke of
Northumberland had given the land at a price which was calculated
to leave a profit from the improvement. Moreover, the land was not
occupied by buildings and there were no tenants with trade interests.
It is these two factors, representing a dead loss to be charged against
any increase in land values, which are largely responsible for the poor
financial showing of excess condemnation.
Out of a total of 57 streets, those in which the recovery exceeds 35
per cent of the cost are given in the following table:[119]
TABLE 6.—COMPENSATION FOR LAND, GROSS COST, RECEIPTS FROM SALE OF
LAND, AND NET COST FOR IMPROVEMENTS MADE BY THE METROPOLITAN BOARD OF
WORKS IN CASES IN WHICH THE RECOVERY EXCEEDED 35 PER CENT OF THE COST.
LONDON, 1857-1889
====================+=========+========+=========+=========+=========
| Compen- | Other | |Receipts |
| sation |payments| Gross | from |Net cost
Street | for |reckoned| cost |sales of |
| land | | | land |
————————————————————+—————————+————————+—————————+—————————+—————————
Garrick | £106,691| £16,521| £123,212| £89,072| £34,140
Southwark | 476,238| 108,692| 584,930| 218,860| 366,070
Queen Victoria |2,055,408| 245,112|2,300,520|1,224,233|1,076,287
High St., Shoreditch| 184,184| 27,519| 211,703| 89,887| 121,816
Shaftsbury Ave. |1,004,990| 131,466|1,136,456| 377,569| 758,887
Mare St., Hackney | 54,175| 5,827| 60,002| 24,340| 35,662
Tooley St. Extension| 68,673| 7,233| 75,906| 45,388| 30,518
————————————————————+—————————+————————+—————————+—————————+—————————
Most of the remaining streets show a recovery from the sale of surplus
land of less than 20 per cent, and doubtless in many of these cases
if the taking had been limited to the land necessary for the street
there would have been a saving in the net cost. In the case of Gray’s
Road Inn, for instance, a simple street widening, the land alone cost
$2,017,000 and from sales $422,000 was recovered, which made a net cost
of $1,595,000. “Had the board bought only the land needed for street
purposes the cost would have been $1,264,000.”[120]
The Metropolitan Board of Works was criticized for not making more
liberal takings, and in the history of its successor, the London County
Council, many bills were proposed which authorized a more liberal
taking of land solely for recoupment purposes. The London County
Council, however, continued the policy of the Metropolitan Board of
Works and favored as an additional method of paying for the cost of the
improvements a special assessment for benefit.
The relative advantages of excess taking for “recoupment” and the
levying of an assessment for benefit were the subject of investigation
during the history of the London County Council. Members of the old
Metropolitan Board of Works were uniform in condemning excess takings
as a method of reducing the cost of improvements.[121] In 1894 Mr.
Charles Harrison, vice-chairman of the London County Council, said
that recoupment as carried out in London had been unsatisfactory
and had tended to result in a net loss. Mr. W. H. Dickenson, deputy
chairman of the London County Council, was of the opinion that past
public improvements had produced a rise in prices which would have
made the recoupment operations yield a certain profit had that profit
not been eaten up before it had been obtained. Mr. J. F. Moulton,
member of the London County Council, gave evidence that “recoupment
is almost always a loss, and increases the cost unless you are going
through comparatively unoccupied property or property which is used for
habitation and not for purposes of trade.” H. L. Cripps, twenty-five
years a member of the Metropolitan Board of Works, said, “It may be
taken generally that in no single case, according to the opinions
of competent surveyors, has recoupment turned out other than an
extravagant operation.” As a result of its own experience and that of
its predecessor, the Metropolitan Board of Works, the London County
Council took the position before every investigating committee of
Parliament that the practice of recoupment by the sale of excess lands
should give way as both less desirable and less practicable than an
assessment for special benefit.
From 1890 to 1898 Parliament refused to grant to the Council the power
to assess for special benefit, and in this period practically no large
improvement schemes were initiated by the Council. In 1899 the power
was granted and was incorporated in the legislation which made possible
the King’s Highway improvement from Holborn to the Strand. This is
probably the most important large improvement of recent years, and
in it are united both the principles of excess condemnation and of
assessment for betterment. It has been cited in this country as the
strongest illustration of the advantage of excess taking as a method of
recouping the cost of an improvement.
It is impossible to get accurate figures on the net cost of this
improvement since much of the excess land taken is not yet sold or
leased, and since it is not certain what portion of the original cost
has been returned to the city by sale of excess land and what portion
has been returned by assessment for benefit. The cost of land taking
and improvement is variously estimated from £4,862,500 to £7,000,000.
The last figure includes approximately £2,000,000 for interest charges
covering a period of at least fifteen years. The most favorable
estimate of the return is £5,000,000, which includes the return
from the benefit assessment, making the net cost of the improvement
approximately £2,000,000, or the amount of interest charges during the
period of development.[122]
In analyzing these figures it must be remembered that they were
submitted by a political party opposed to the one which initiated the
scheme, and items of cost are included which are more than offset by
indirect gains that are not easily reducible to figures. The physical
results accomplished by the King’s Highway would have been impossible
without the very liberal use of excess taking. The very satisfactory
financial result may be due in a large measure to the advantageous
lease of surplus land, but, considering the opinion of best informed
authorities in London and the history of London street improvements
from 1859 to 1900, and considering further that some part of the
return in the case of the King’s Highway is the result of betterment
assessments on property not acquired, it seems unwise to lay too great
stress on the King’s Highway improvement as a precedent for the use of
excess taking merely as a method of recoupment.
The causes of the general failure of excess taking to give satisfactory
financial returns in London are much the same as they are in France:
First, the cost of acquiring excess land is great because of
extravagant jury awards and because of the practice of paying for trade
interests and for the “goodwill” of such businesses as are obliged
to seek other locations. Mr. Harrison, vice-chairman of the County
Council, is of the opinion that recoupment cases show not that there
is a loss on the land which is acquired, but that the loss arises
exclusively from buying what can not be resold (trade interests), and
represents great waste, legal costs, and other items of expenditure
attached to each interest.[123] Mr. Dickenson, deputy chairman of
the County Council, believes that even if the fee simple alone were
taken and the leasehold and subleasehold interests allowed to run
out, extravagant prices would be paid and that it would be best to
“intercept the benefit” by means of a betterment tax. The fee simple
alone would cost at least 10 per cent more than the market value, and
to that sum must be added much more in costs.[124]
Second, the effect on values of an improvement is uncertain. In
every country where excess taking is practiced it is the common
experience to find that occupation of all kinds adapts itself slowly
to a considerable change in the street plan. This phenomenon is not
dependent on racial characteristics. In Paris, in the cities of
Belgium, and in London at least eight years, as has been noted, were
necessary before the city or property owners received the benefit
expected from the change.
Third, the large power entrusted to administrative boards, both in the
awards for damages and in the negotiation and sale of excess land, is
open to great abuse. Charges of maladministration in the Metropolitan
Board of Works were made the subject of investigation by a royal
commission in 1888, and in spite of the finding by the commission that
the board was not corrupt, a great deal of uncontradicted evidence of
dishonest practice was offered.
DIFFICULTIES IN THE UNITED STATES. In considering whether excess
condemnation is justifiable on the ground of securing to the city
such profit from the resale of excess land as will enable it to
recoup a large part of the cost of the improvement, it must be borne
in mind that “failure of administration” is as likely to defeat
expectations in the United States as in Europe. Certainly jury awards
in many jurisdictions, and particularly in older jurisdictions,
where reconstruction is most necessary, are excessive, and municipal
administrations in the United States are no more above temptation than
was the London Metropolitan Board of Works.
2. PHYSICAL VALUE OF EXCESS CONDEMNATION
Irrespective of its value as a financial expedient, excess taking
allows the municipality to secure the greatest physical benefit from an
improvement. The widening or relocating of a built-up street is likely
to involve a complete rearranging of lot lines, particularly in older
cities where the lot line is irregular and the depth of lots varies
greatly. To limit the taking of land to that actually acquired for the
construction of the street results inevitably in remnant lots, and
the one effective way to unite these remnants with larger parcels is
to put their control in the hands of the municipality, and to provide
for an impartial appraisal of their value. It should be an exceptional
case where the owner of the lot adjoining the remnants would not take
the land at its appraised value, but even if the remnants remained
unoccupied their control by the municipality would be more likely to
prevent their use for undesirable purposes than if they were left in
private ownership.
Control over remnants is possible with a very limited right of excess
taking. If the right is enlarged and the municipality permitted to
take on both sides of a widened business thoroughfare land enough for
suitable building lots, the construction of buildings can be secured
which will fit the thoroughfare and will yield the highest possible
return in taxation. It is equally desirable for the municipality to
control land abutting on parks, parkways, and approaches to public
buildings, both to prevent a use of the land which would be disfiguring
and to induce by restriction in the deed of sale of such land a type of
construction which would harmonize with the public purpose.
Those who oppose the radical extension of the power of eminent domain
believe that control over development by the municipality can be as
effectively gained by the acquisition of easements in the land abutting
on streets, parks, and parkways, which would prohibit certain uses of
the land and prescribe the character and even the style of architecture
of the buildings constructed upon it. Much has been accomplished by
such easements. They may do no more than require an open front yard
or garden of minimum depth on the private property[125] or fix an
arbitrary height limitation on buildings,[126] or they may require
approval in detail by a public authority of the designs of buildings
in case they are built above or beyond certain limits.[127] In theory
at least they may curtail the freedom of the land owner to any extent
which might be found necessary to secure to the public completely
satisfactory use of the adjacent public improvement. But practically
they are limited by the fact that if they diminish too far the freedom
of control which the owner of the fee can exercise over the development
and use of the property they will establish a divided responsibility
which is fatal to efficiency and initiative, and which absolutely
destroys much of the economic value of the property. The fear of
such a result may raise the damages for the acquirement of extensive
easements almost to the full value of the property. In addition to this
practical limitation upon the taking of easements in connection with
special assessments as a substitute for excess condemnation in those
cases to which the latter is specially applicable, it is to be noted
that one important function of the excess condemnation method is not
provided for at all; namely, the prompt readjustment of such serious
disturbances of the normal size and shape of lots and of the normal
relation of property lines to streets as may have been caused by the
public action in forcing through an improvement. These disturbances
constitute a situation as full of injustice to the owner of the lots as
it is unsatisfactory from the point of view of the public.
CONCLUSIONS
1. In the absence of more convincing precedents too much reliance
should not be placed on excess condemnation as a method of distributing
the cost of public improvements. Where the maximum physical benefit
from an improvement can be secured under the present restricted power
of eminent domain, excess taking should not be resorted to except in
rare cases where it would involve few expensive buildings and where the
land value is so low that the inevitable tendency is upward. Rather
than introduce excess taking for the purpose chiefly of recouping the
city’s investment, the highest possible return should be sought by the
American method of special assessment, already proved an eminently
successful method of distributing the cost of the acquisition of land
for public purposes.
2. But the use of excess taking to protect the value, both economic and
esthetic, of a business thoroughfare, park, or parkway is sometimes
essential to the full success of a great improvement. Only by its
use in some cases can the full advantage of an improved thoroughfare
be secured by providing abutting lots of size and shape adapted for
suitable structures. Only by selling surplus land under restrictions
can the city most effectively control the fringe along the widened
thoroughfare. Whether its use results in a net financial profit or not
is a secondary consideration if it accomplishes a necessary result more
completely and efficiently than can otherwise be done.
FOOTNOTES:
[86] Resolves of 1903, Chapter 86.
[87] Several of the conclusions are found in the Appendix, pp. 308 ff.
House Document No. 288 of 1904.
House Document No. 1096 of 1904.
[88] It was evidently intended to insert in section 29 a provision
under which the Commonwealth might condemn the whole or any portion of
the “adjoining property” if the owner of it failed to effect a purchase
of the remnant offered for sale by the Commonwealth,[89] but the
provision was not included in the act as passed.
[89] See draft of proposed act, House Document No. 288 of 1904.
[90] Acts of Massachusetts, 1904, Chapter 443.
[91] Acts of Ohio, 1904, p. 333. See Appendix for text, p. 268.
[92] Acts of Maryland, 1908, Chapter 166. See Appendix for text, p. 269.
[93] Acts of Virginia, 1906. Chapter 194. Approved March 14th. See
Appendix for text, p. 271.
[94] Special Acts of Connecticut, 1907, No. 61. Section 7.
[95] Pa. Mutual Life Ins. Co. _vs._ Philadelphia, argued April 15,
1913. See Appendix, p. 275.
[96] Massachusetts Decisions, Vol. 204, pp. 606 ff.
[97] See Appendix for text, p. 279.
[98] The second attempt to pass such an amendment succeeded in 1913,
but it is much more restricted in scope than that proposed in 1911. For
text see Appendix, p. 248.
[99] Acts of 1912, Chapter 186.
[100] Wisconsin amendment to Article 11 of Constitution adopted
November 4, 1912. See Appendix, p. 279. Ohio amendment to Article 18,
Appendix, p. 280.
[101] We refer to clear cases of the deliberate use of the method,
especially in connection with street laying out. In the case of parks
and parkways an entire lot is systematically condemned by certain
boards whenever they find themselves compelled to take so costly
a portion that the whole would be a better bargain. Even though a
portion of the lot taken might lie entirely outside the line of any
proposed construction a park commission could claim if pressed that its
acquirement and planting were properly incidental to the park purpose
of the improvement; and courts are very slow to upset an administrative
decision on such a point. After acquirement the administrative
authority can decide that the remnant is not needed by the public after
all, and if properly authorized by the legislature may proceed to
“abandon” or sell it for a suitable consideration.
In the case of the Burnt District Commission, created in 1904 (Acts of
Maryland, 1904, Chapter 87), to deal with the emergency caused by the
Baltimore fire, there was definite provision for the condemnation of
entire lots in case a portion was needed for a public improvement and
for the sale of the remnants at public auction. It is reported that
this power was used in at least one case and that a remnant almost
unusable alone was bought by a speculator at public auction and used in
a manner calculated to extort blackmail from the owner next in the rear.
[102] _Le Journal Officiel de l’Empire Français_, June 18, 1868,
January 13, 1869, November 28, 1869.
[103] Massachusetts House Document No. 288, 1904, p. 58.
[104] _L’Economiste Français_, May 31, 1884, June 18, 1887, September
9, 1903.
[105] _L’Economiste Français_, September 1, 1888. See also
Massachusetts House Document No. 288 of 1904, pp. 60 ff.
[106] _L’Economiste Français_, August 23, 1890.
[107] Ibid., June 18, 1887.
[108] Ibid., June 18, 1887.
[109] Ibid., September 10, 1887.
[110] Massachusetts House Document No. 1096 of 1904, p. 5.
[111] Ibid., p. 6.
[112] Massachusetts House Document No. 1096 of 1904, p. 12.
[113] Massachusetts House Document No. 1096 of 1904, p. 14.
[114] Ibid., p. 13.
[115] Massachusetts House Document No. 1096 of 1904, p. 15.
[116] Edwards, P. J.: History of London Street Improvements, 1855-1897,
p. 11. London, P. S. King & Son, 1898.
[117] Massachusetts House Document No. 288 of 1904, p. 65.
[118] Edwards, op. cit., p. 17.
See also Report of the Massachusetts Commission on the Right of Eminent
Domain. House Document No. 288 of 1904, p. 68.
[119] Edwards, op. cit., pp. 134, 135, 136, 137.
[120] Massachusetts House Document No. 288 of 1904, p. 67.
[121] Op. cit., pp. 67-68.
[122] Manuscript Report of London County Council Improvement Committee,
1910.
[123] Massachusetts House Document No. 288 of 1904, p. 76.
[124] Ibid., p. 76.
[125] Customary easement along parkways in many cities.
[126] Copley Square case, see pp. 19 ff.
[127] Restrictions on certain Boston parkways.
CHAPTER V
USE OF THE POLICE POWER IN THE EXECUTION OF A CITY PLAN
The control over city building by reason of land ownership is not
peculiar to a governmental agency, nor does it depend on legislative
authority. Possession of land is the only essential, whether that
possession be in a municipal corporation, or in a private corporation
organized as a land company for the sole purpose of directing the
development of the whole or parts of a city in accordance with a plan.
The type of control over city building which we are now to consider,
however, is peculiar to a governmental agency. It grows out of the
duty of the administrative body representing all the people to protect
the rights of all from individual aggression. Through the process of
acquiring lands and rights in land, the city merely by wise use of its
possessions and without the exercise of governmental authority may
induce the kind of development which is desirable. This process is
gradual and may escape public notice. But in acting as the guardian of
the community the city says to the individual, “Thou shalt not,” and
by ordinance it restrains him from doing things on his own land which
would damage the health, safety, or morals of the community.
In exercising this power the city council passes an ordinance, and the
court determines whether the purpose of the ordinance is confined to
those matters which have a real and substantial relation to the public
welfare and whether the ordinance is reasonably calculated to carry
out this purpose. These are the only tests applied. In a limited field
this power of restraint is exercised without question, and ordinances
have the strength of custom and legal decision behind them. In a still
larger field it is assumed that restraint can not be exercised. But
the doubtful ground between is constantly being encroached upon either
by ordinances restraining the power of the individual or by decisions
denying the power of the community. The law as made and as interpreted
by the courts is constantly changing as the sentiment of the community
changes.
A too intensive use of land is the chief contributing cause to poor
housing, and shares with poor street planning the responsibility for
economic losses consequent on every kind of street congestion. A use
of land either for buildings unfit structurally for habitation or for
other purposes offensive to the occupants of surrounding land reacts
upon the use of the latter, tends to instability in values, and may
blight a district otherwise adapted to a higher economic use, as for
residence or retail trade. A well built city would control by means of
segregation the use of land for purposes that would seriously conflict
with those of other owners, and would insist on sanitary and structural
excellence for its homes. Public control of all such matters on private
land is accomplished directly under the police power. A complete
catalogue of municipal regulations which limit the use of private land
is not within the scope of this chapter, since many such regulations
have little or no influence on the physical development of the city;
but those which most affect the city plan will be considered under (1)
limitations on the degree to which the intensive use of land may be
carried, and (2) limitations on the degree to which the offensive use
of land may be carried.
LIMITATIONS ON THE DEGREE TO WHICH THE INTENSIVE USE OF LAND MAY BE
CARRIED
1. LIMITATIONS ON THE HEIGHT AND SIZE OF BUILDINGS
Most modern building codes interfere with the use of land by provisions
limiting the amount of the lot which can be occupied and the height to
which certain classes of buildings can be erected. Some cities impose
an absolute height limit beyond which no building of whatever class
of construction can be erected.[128] Ordinances of this character are
generally sustained by the courts on the theory that they provide a
reasonable method of protecting the safety and health of the community.
This is particularly true of some provisions which require a specific
allowance of space between non-fireproof structures. The serious nature
of the “conflagration risk” involved even in buildings of fireproof
construction as established by the Baltimore and San Francisco fires
would make this theory applicable even to non-combustible structures
because of the combustible material which they contain. Thus the
absolute height limitation of 125 feet imposed in Boston on buildings
of all classes was sustained in Welch _vs._ Swasey, 193 Mass. 373:
“The erection of very high buildings in cities, especially upon
narrow streets, may be carried so far as materially to exclude
sunshine, light, and air and thus affect public health. It may also
increase the danger to persons and property from fires and be a
subject for legislation on that ground. These are proper subjects
for consideration in determining whether in a given case rights of
property in the use of land should be interfered with for the public
good.... Merely because the commission has come to a conclusion
different from that to which the court may come is not in itself
sufficient to declare the result of the work unconstitutional.”
The decision of the state court was sustained by the supreme court of
the United States in Welch _vs._ Swasey, 214 U. S. 91.
It is believed that this is the most extreme ordinance on the subject
of height limitations of buildings in the United States which has
received judicial approval by the highest courts.[129]
How much further an ordinance could go and still be held within
the police power can be decided only by framing the ordinance and
getting it tested. Any other answer to the question would be a guess
which is likely to be wrong. City planners ask, “Can buildings be
limited to a height not greater than the width of the street between
property lines?” Building regulations in Washington, D. C., provide
that no building shall exceed in height the width of the street or be
constructed to a height over 90 feet on a residence street or 110 feet
on a business street, except that buildings may be erected to 130 feet
on avenues 160 feet wide. In New York the case of People _vs._ D’Oench,
111 N. Y. 359, indicates the probable answer to the question, if the
kind of buildings is limited to those used or intended to be used for
dwellings of more than one family. The question presented to the court
in that case was whether the act of 1885 applied to hotels. The act
provided that “the height of all dwelling houses and of all houses used
or intended to be used as dwellings for more than one family shall not
exceed 80 feet in streets and avenues exceeding 60 feet in width.”
The court found that there was no doubt of the competency of the
legislature in the exercise of the police power under the constitution
to pass such an act, but that the act did not apply to hotels.
Can wooden buildings used for residence be limited to two stories?
Building regulations of 1909 for Memphis contain just that provision
and there is little doubt that the ordinance would be sustained.
Regulations governing the size of a building in relation to its lot
are not so generally adopted and are much more limited in application.
An examination of the building codes of the 51 cities of over 100,000
population shows that at least 18, and among them three of the 10
largest cities in the country, have no ordinances on the subject. In
several others the regulation is of the mildest kind; as, for instance,
in the tenement house act for cities of Massachusetts (Acts 1913,
Chapter 786) which provides that no tenement house of third class
construction shall be erected nearer than 5 feet to adjoining lot line;
but it may be constructed to the lot line if protected by a fire wall.
A provision found in several codes limits the size only of tenement
houses and apartment houses by specifying the proportion of lot which
may be built upon, varying in the case of a corner lot from 75 per cent
to 95 per cent, and in the case of an interior lot from 60 per cent to
80 per cent. The building code of Baltimore provides that there shall
not be less than 20 feet between frame buildings, and no other building
of any kind shall be built within 20 feet of any existing frame
building on the next lot.
A bill presented to the legislature of the state of Washington in
1911[130] proposed a considerable extension of the right to regulate
the use of private property by requiring that in every newly developed
area containing five acres or more there should be a reservation of
10 per cent of the land for public open space, after deducting such
land as would be required for street purposes. It is clear that a
most liberal interpretation of the police power would not justify a
regulation which in reality amounts to a taking of private property
without compensation.
That the courts will not sanction any and every legislative regulation
is clear in several decisions in which the validity of ordinances
specifying the degree of intensity with which property should be used
have been successfully attacked. The supreme court of California in
1910, in the case of Wilson _et al._ _vs._ City of Alhambra, 158 Cal.
430, enjoined the enforcing of an ordinance which compelled the owner
of six acres of land to lay out a street over his land not less than
50 feet wide. The street in this case was an extension of an existing
street which was only 40 feet wide. The court held merely that to
require an owner to build a street wider than many of the existing
streets in the town was an unreasonable exercise of the police power.
2. DIFFERENTIATED ZONES OF HEIGHT LIMITATION
A most important question to the city planner is to what extent
American municipalities may, in the exercise of the police power, copy
regulations common in German cities and prescribe different building
regulations for different districts of a city. The principle is not
new in the United States. Many cities have at least two building
districts from one of which non-fireproof buildings are excluded. The
constitutionality of fire zone ordinances is universally upheld.
The building regulations in the city of Köln are taken as illustrating
the German system, because they are simple compared with the
regulations in some other German cities. The city is divided into four
building districts, the first of which comprises the area inside the
old city walls and contains the central business district. In this
district buildings may have four stories and a height of 66½ feet, and
may occupy 75 per cent of an inner lot and 80 per cent of a corner
lot. The second district is made up of the more closely built suburbs
of urban character, and here buildings may have not more than three
stories, a height of not more than 52½ feet, and may occupy 75 per
cent of the lot if the building does not exceed 26 feet in height, but
only 65 per cent otherwise. In the third district the buildings are
limited to two stories, a height of 38 feet, and may occupy 65 per cent
of the lot if they do not exceed 20 feet in height, and only 50 per
cent otherwise. The fourth district is devoted to detached buildings
or villas of two stories and 52½ feet in height. Only 40 per cent of
the site may be covered by buildings, or 50 per cent if the site is
a corner lot. In this district also there must be at least 33 feet
between buildings and 16½ feet from the boundary of the lots to the
buildings. Reference to the map of Köln will show that the districts
have been so located that just outside the old walls of the city
is a broad band of open villa buildings, and that the more closely
built suburban districts are also separated by the same open style of
construction.
An approach to the German system is found in Boston and in Washington.
The Massachusetts commission on height of buildings authorized under
chapter 333 of the statutes of 1904, was empowered merely to divide the
city of Boston into districts of two classes in such manner that the
parts of the city in which the greater part of the buildings were used
for business or commercial purposes should be included in District A
and the rest of the city in District B. The statute itself prescribed
the limit of 125 feet for buildings in District A and further provided
that in District B no buildings should be over 80 feet. Under a later
act, chapter 383 of the statutes of 1905, the commission was empowered
to designate that part of District B where buildings exceeding 80 feet
and not exceeding 100 feet could be erected; and there was a further
provision in this act which limited the height of buildings in certain
designated districts to 70 feet. The commission’s first report fixed
the boundaries of District A, and the second report regulated the
height of buildings in District B in accordance with the width of the
street and the width of the building. On all streets over 64 feet wide
the buildings could be erected to one and one-half times the width of
the street up to 100 feet, provided that their height did not exceed
twice their narrowest width.
Boston’s several zones are more highly differentiated than even those
of Köln, but the Köln regulations are much more severe than the most
drastic of the Boston provisions. Thus Boston has a narrowly limited
business zone and several other zones differing, not in accordance with
the distance from the business center, but in accordance with the width
of the street and width of the buildings. The commission’s report and
the decisions of both the state and federal courts sustaining it are
unique in the United States. The court held that in the exercise of
the police power the legislature could determine an absolute height
limitation for all buildings in the city, and could delegate to a
commission the right to fix the boundaries of building districts and to
establish varying height limitations in one of these districts.[131]
This decision has been generally accepted as of great importance in
working out some of the details of city planning. There is not involved
in it the question of the amount of space which can be occupied by
buildings in the different building districts, and for this reason the
decision is not a complete precedent for the introduction of the zoning
system of Germany in the United States, but it is likely that the
Massachusetts court would uphold an ordinance framed to include all the
details of the Köln system.
If the legislature can establish two building districts it certainly
can establish three or even four. If its authority to delegate to a
commission power to regulate the height of buildings in each district
is sustained by the courts on the ground that it is a reasonable way
of securing an adequate amount of light and air, it should follow
that the power to regulate the amount of space that each building
may occupy in a horizontal direction can also be delegated. Building
codes prescribe the distance between buildings or the open space which
must attach to each building, and this regulation is sanctioned by
the decisions. It is as logical to provide a larger proportion of
open space in districts where the demand for land is less as it is
to provide less height for buildings in such districts. An ordinance
which prescribes for different building districts varying amounts of
land which may be occupied, as well as varying heights of buildings,
is much more calculated to lessen the fire risk and to safeguard the
health of the community than one which is operative only in the area of
greatest land values and most congested occupancy. The burden is on the
private owner to show that the legislative act is unreasonable. That
the courts will be slow to declare unreasonable the legislative finding
has been established in numerous decisions, and applying this test of
reasonableness to an ordinance which would include the principle of the
zone system of Köln it is difficult to see how it could be successfully
questioned.
It is quite another question whether it would be expedient to introduce
such an ordinance. Local conditions might be such that property
owners would be right in refusing to entrust so important a question
to a municipal administration or to a commission appointed by that
administration. In purchasing lots they may cheerfully submit to the
restrictions imposed by a land company, no matter how much their rights
are curtailed. They may agree to set back their buildings 20 feet from
the line of their property; they may agree to build nothing on the
land except a dwelling house of certain value and to have the rest
of it set out in gardens, and even to submit the position and design
of their houses, hedges, fences, and gates for approval to a small
committee representing the vendors of the tract. Such restrictions,
when drawn to meet the conditions of the real estate market, attract
buyers rather than repel them, because these restrictions upon the
liberty of individual lot owners protect each against the danger
of certain injurious actions by any neighbors. Yet a suggestion of
control from municipal authorities might raise a strong protest. It
is an interesting speculation whether some form of district building
regulations subject to a referendum within each district will not meet
American conditions successfully.
LIMITATIONS ON THE DEGREE TO WHICH THE OFFENSIVE USE OF LAND MAY BE
CARRIED
The right of the municipality in any given case to suppress uses of
land depends on the language of its charter, but under a universal
charter provision a municipality may protect the general welfare of its
people, and many uses of land are enjoined under this general power.
1. USES OF LAND WHICH IMPAIR THE FREE USE OF A PUBLIC HIGHWAY
Encroachments on the highway of signs, awnings, posts, porches, stoops,
stands, and so forth, are generally included among those offensive
uses of land which are prohibited in the exercise of the police power.
If their use obstructs the street or diminishes the space available
for walking, or impedes traffic, they may be abated or indicted as
nuisances, and it is not necessary that the comfort of the public
should be interfered with materially.[132]
But the right of suppression is as well put on other grounds. The
municipality either owns the land in the highway or possesses an
easement in the land for highway purposes, and can prohibit by virtue
of this ownership any use inconsistent with those purposes. The case
of the Fifth Avenue Coach Co. _vs._ City of New York, 111 N. Y. Supp.
759, is in point.[133] The action was brought by the plaintiff coach
company to enjoin New York City from interfering with advertising
signs displayed on the outside of their auto stages which travel on
Fifth Avenue. The court denied the injunction on the ground that the
plaintiff did not show a clear right to warrant the interference of
the court, since the ordinance of the city under which the advertising
of the plaintiff company was prohibited was a reasonable regulation of
the use of the street and did not operate to impair the plaintiff’s
franchise. In discussing the nature of the plaintiff’s advertising
business, however, the court said:
“It is along the entrance to parks and along the parks themselves
preserved to attract lovers of nature and the beautiful that these
unnatural and inartistic moving picture signs are displayed. But out
of place, disagreeable and offensive though they are both to the civic
pride and esthetic taste, and although the tendency of equitable
jurisprudence is to extend its jurisdiction to include this situation,
the fact remains that no authority now exists which will justify the
legal conclusion that the plaintiff’s signs now constitute a nuisance.”
The decision shows a tendency to give increasing regard to esthetic
considerations, since it holds the ordinance a reasonable street
regulation. In the same way, without resorting to the police power,
the municipality may regulate the use of streets for poles and wires,
and may compel the placing of wires underground as a condition of the
franchise.
2. USES OF LAND WHICH CONSTITUTE A NUISANCE
A use of land which is inherently unlawful and unprofitable and
dangerous to the safety and health or offensive to the morals of a
community may be treated as a nuisance, _per se_. Rotten or decayed
food or meat, infected bedding or clothing, mad dogs, animals affected
with contagious diseases, and imminently dangerous structures, are
conspicuous instances of nuisances _per se_. Such conditions may be
summarily abated without previous notice. A use of land which does
not in itself constitute a nuisance, but may become so by reason of
its locality or the conditions surrounding its maintenance, may be
prohibited altogether or confined to certain parts of a municipality.
Certain occupations are so generally recognized as belonging to the
objectionable class, either because of the odors or noises which are
inseparable from them, although conducted in the most careful manner,
that they are specifically named in municipal charters as nuisances
which the municipality may abate. Thus, slaughter houses, glue
factories, soap factories, canning factories, smelting works, rendering
establishments, stables, and fertilizer factories are generally
included in this class.[134] Some of these ordinances have been tested
by the courts and found to be a reasonable exercise of the police power:
Rendering establishments: Grand Rapids _vs._ Weiden, 97 Mich. 82
Meigs _vs._ Lister, 23 N. J. Eq. 199
Slaughterhouses: Harmison _et al._ _vs._ City of Lewiston,
46 Ill. App. 164
Ex parte Heilbron, 65 Cal. 609
Beiling _vs._ City of Evanston, 144
Ind. 644
Smelting works: Appeal of Pa. Lead Co., 96 Pa. 116
Stables: Shiras _vs._ Olinger, 50 Ia. 571
Fertilizer factories: Evans _vs._ Fertilizer Co., 160 Pa. 209
The emission of dense smoke: People _vs._ Lewis, 86 Mich. 273
Atlantic City _vs._ France, 74 N. J.
Law 389
Harmon _vs._ Chicago, 110 Ill. 400
Other courts have come to different conclusions with the same or very
similar ordinances applied under different conditions, the courts
holding that a declaration by municipal authorities that an occupation
is a nuisance does not make it so in fact:
Slaughter houses: Wreford _vs._ People, 14 Mich. 41
Stables: Phillips _vs._ City of Denver, 19
Col. 179
The emission of dense smoke: St. Louis _vs._ Heitzeberg Packing Co.,
141 Mo. 375
St. Paul _vs._ Gilfillan, 36 Minn. 298
3. DIFFERENTIATED DISTRICT REGULATIONS
Legislation in Massachusetts gives a further right by authorizing
boards of health of cities or towns “to assign certain places for the
exercise of any trade or employment which is a nuisance or hurtful to
the inhabitants, injurious to their estates, dangerous to the public
health, or is attended by noisome and injurious odors.” They may also
prohibit “the exercise thereof with the limits of the city or town or
in places not so assigned.”[135]
It does not seem to have been the practice of Massachusetts boards of
health to exercise the right of assigning offensive occupations to
certain parts of the city, and therefore the question of the right of
the community to impair the value of private property by assigning
objectionable occupations to certain districts has not been tested. The
practical answer to this objection to segregating offensive occupations
within defined limits is that they would be located only in those
portions of the city where the value of the land or the character of
occupation showed that legal actions by property owners included in the
district would be unlikely, and, if brought, would be either dismissed
or a nominal amount of damages be awarded.
Los Angeles has largely applied the principle of separating industrial
districts from residential districts. By an ordinance adopted in 1909
seven industrial districts were established in the city, and by an
ordinance of the next year all the rest of the city, with unimportant
exceptions, was declared to be a residential district. The ordinance
further provides that industrial occupations may be permitted in
certain excepted portions of the residence district, and the right is
reserved to except other portions as conditions warrant. It is made
unlawful for any person, firm, or corporation “to erect, establish,
maintain or carry on within the residential district described in
section 1 of the ordinance any stone crusher, rolling mill, carpet
beating establishment, fireworks factory, soap factory, or any other
works or factory where power other than animal power is used to
operate, or in the operation of the same, or any hay barn, wood yard,
lumber yard, public laundry or wash house.”
The ordinance was tested in the case of Ex Parte Quong Wo.[136] The
petitioner, Quong Wo, who had been convicted and imprisoned for
carrying on a public laundry and wash house in a residence district,
sought to be discharged from custody. The court dismissed the
application for a writ of habeas corpus, finding that it was within
the lawful exercise of the police power to confine the business of
operating a public laundry or wash house within defined limits. The
following language of the decision is particularly in point:
“There can be no question that the power to regulate the carrying
on of certain lawful occupations in a city includes the power to
confine the carrying on of the same to certain limits whenever such
restriction may reasonably be found necessary to subserve the ends for
which the police power exists.... It is primarily for the legislative
body clothed with this power to determine when such regulations are
essential, and its determination in this regard, in view of its
better knowledge of all the circumstances and the presumption that it
is acting with a due regard for the rights of all parties will not
be disturbed in the courts, unless it can plainly be seen that the
regulation has no relation to the ends above stated, but is a clear
invasion of personal or property rights under the guise of police
regulation.”
This decision was reviewed and upheld in the case of Montgomery’s
application for a writ of habeas corpus, the only difference in the
cases being that the petitioner in the latter case was imprisoned
for carrying on or maintaining a lumber yard within the residence
district.[137] The contention was made by Montgomery that a lumber yard
was not one of those specific occupations which could be regulated
under the exercise of the police power since it was not enumerated
in the charter of the city. The court found specifically that if the
ordinance could be upheld under the general police power of the city,
it would not fall merely because the city had specific authority under
its charter to suppress certain other kinds of business.
A similar ordinance has been proposed for the city of St. Paul:[138]
Section 2. It shall be unlawful to establish or maintain within said
district any carpet beating establishment, stone crusher, rolling
or planing mill, public laundry, fireworks, soap or cigar factory,
machine shop, slaughter house or rendering works, brewery, distillery,
tanning, furrier or canning plants, or any hospital or sanitarium, or
asylum for defectives, or any establishment, works or factory which by
reason of noise, offensive smell or vapor, or unsanitary effect, may
be unhealthy or disturbing or injurious to persons or property within
said district.
Section 3. Any person violating this ordinance shall be deemed guilty
of misdemeanor and punished by a fine of not less than twenty-five,
or more than one hundred dollars, or by imprisonment of not more than
ninety days, or both fine and imprisonment. Each day of the violation
of the prohibition herein contained shall be construed as a separate
offense.[139]
4. OFFENSIVE USES OF LAND NOT SUBJECT TO MUNICIPAL REGULATION
There remains a class of occupation which imperils neither the safety
nor health of the community and yet is very damaging to the value of
land as a place of residence. A business that produces little or no
smoke or noise and no odors that are unhealthful may, because of the
appearance of the buildings which it occupies or the class of persons
which it attracts, be an undesirable neighbor. This is the sort of
occupation that the developers of a high class residential district
exclude by restrictions in the deed, but the police power has never
been extended to preventing or removing structures or occupations which
merely disfigure the city’s physical aspect or which bring together
people who may be socially uncongenial. It is not held to be within the
scope of the police power to guard the amenities of life.
The Missouri legislature of 1891 gave authority to municipalities to
exclude by ordinance “the institution and maintenance of any business
avocation on the property fronting on boulevards ... and to establish
a building line to which all buildings and structures shall conform.”
Ordinances based on this legislation were tested in several cases in
the supreme court and in each case declared unconstitutional on the
ground that the legislation deprived owners of property without due
process of law and made no provision for compensation. The theory was
advanced by attorneys for the city that the ordinance was passed in
pursuance of the police power, but this suggestion was held thoroughly
untenable by the court.[140]
An ordinance of the city of Baltimore prohibited the erection of new
buildings without a permit, and directed that the permit should not be
granted unless in the judgment of the appellate tax court “the size,
general character, and appearance of the building will conform to the
general character of the buildings previously erected in the locality
and will not tend to depreciate the value of the surrounding improved
and unimproved property.” In a well considered decision this ordinance
was held _ultra vires_.[141]
An ordinance of Bay St. Louis, Mississippi, prohibited the building
of houses, shanties, huts, or tents between the road and sea without
a special permit, except such as are known as summer houses for shade
only, and “all houses built without a permit shall be nuisances.” The
road mentioned in the ordinance was much used by pleasure vehicles,
and on the land side were many expensive houses. The ordinance was
obviously designed to preserve the view of the gulf from the road and
prevent the obstruction of the cool winds from the water. The court
found the ordinance unconstitutional, and in discussing the theory that
it could be defended in the exercise of the police power, said, “There
is scarcely a suggestion that the object of the ordinance is other than
to enhance the beauty of the street.”[142]
Offenses to the sense of smell and to the sense of hearing are
enjoined on the ground of health, but the medical fraternity has not
convinced the legal fraternity that offenses to the sense of sight are
damaging to the health. It should be a very interesting task to frame
a medico-legal brief which would convince a reputable tribunal of the
necessity to give a broader meaning to the phrase “public welfare,” and
we should have a decision which would be as influential as the case of
Welch _vs._ Swasey in Massachusetts. One of the greatest authorities on
police power says: “It is conceded that the police power is adequate
to restrain offensive noises and odors. A similar protection to the
eye, it is conceived, would not establish a new principle but carry a
recognized principle to further application.”[143] The same authority
recognized the difficulty of administering such an extension of the
power as applied to the elimination of objectionable signs: “Such
regulation would have to define what signs are prohibited and some test
would have to be discovered by which to discriminate that which is
merely unesthetic from that which is so offensive as to fall under the
police power, since the prohibition of all advertising signs would be
out of the question.”
Some forms of advertising which are now allowed in practically
every city in the United States could be enjoined on the ground of
endangering public health. The custom, for instance, of covering the
whole side or front of a building with advertisements pictured or
lettered in electric lights might be enjoined as an injury to health,
since at least the glare interferes with the sleep of occupants of
buildings facing such a sign. But, generally speaking, the decisions on
this phase of the general subject of the police power as illustrated
by the bill-board cases which we are about to discuss are conclusive
that whatever may be the effect on the judiciary from the increase
in esthetic sentiment, the great consensus of opinion is at present
against the exercise of the police power to restrain that form of use
of land which is merely offensive to the sense of sight.
BILL-BOARDS. The bill-board evil is the classic illustration of
offensiveness to even the most poorly nourished artistic sense. Several
ordinances of one kind or another have been attempted to legislate
it out of existence. Park commissions have attempted to protect the
neighborhood of parks and parkways by an ordinance of exclusion. But
every drastic measure has been successfully thwarted by repeated court
decisions.[144]
A very recent Missouri case[145] has been generally understood to
announce a different rule and to uphold the prohibition of bill-boards
as an exercise of the police power. The case arose under an ordinance
of the city of St. Louis of which the following are the essential
provisions:
1. No bill-board hereafter erected shall exceed fourteen feet in
height above the ground.
2. All bill-boards shall have an open space at the bottom of at least
four feet.
3. No bill-board shall exceed five hundred feet in area.
4. No bill-board shall approach the street line nearer than fifteen
feet or the side line of the lot on which it stands nearer than six
feet.
Besides these structural requirements there seems to be a
discrimination in the matter of license fees against structures used
as bill-boards; for although no fees are charged for fences which
may be used for bill posting, a fee is imposed for the erection of
bill-boards; and although a fee of only $1.00 is charged for the
alteration or erection of buildings costing less than $1,000, a fee of
$100 is charged for a bill-board 50 feet long, the total cost of which
may not exceed $100. The same disproportionate charges are made for the
erection or alteration of signs on the top of buildings.
The ordinance was attacked on every possible ground: First, as a
taking of property without due process of law; second, as denying
the equal protection of the laws by prescribing restrictions against
structures on which advertising is displayed, but not against similar
ones structurally as objectionable,—in other words, discriminating
against the _kind of use_ to which a structure is put; third, as taking
property without compensation and without public necessity. The case
was first heard before a justice of the supreme court, and his finding
that the ordinance was a reasonable exercise of the police power was
upheld by the full bench with two judges dissenting. To the contention
raised by counsel for the bill-board company that the statute
discriminates, the court replied that there can be no discrimination,
since bill-boards are of necessity in a class by themselves because of
their temporary character and consequent cheap and insecure structure.
In distinguishing them from other structures on the top of buildings,
like tanks, chimneys, towers, poles, and so forth, the court says:
“Should they (bill-boards) be required to be constructed with the same
permanency (as tanks, towers, and so forth), that fact alone would
destroy their commercial value and put them out of business, for the
cost of construction would greatly exceed the amount of income that
would be derived therefrom,” It is the finding that bill-boards are
“nuisances in character” distinguished from all other apparently
similar structures by their cheapness and insecurity that distinguishes
the Missouri decision from those which have held similar ordinances
invalid as an unwarranted exercise of the police power.
The Missouri case finds something more dangerous in bill-boards
than the paper on them containing the advertisement. The decision
amounts to this: All bill-boards are likely to fall; to construct
them safely would involve a cost which would prohibit their erection;
all bill-boards are likely to harbor nuisances; all bill-boards
increase the fire hazard. One form of regulation would be to require
construction specifications, but it is just as reasonable to move them
back from the lot line and so limit their height that the danger from
them is removed. It is also reasonable to require an open space at the
bottom and at the sides of the lot so as to check nuisances that tend
to grow up behind the barrier and to decrease the risk of fire.
This St. Louis case has been taken to the supreme court of the United
States on a writ of error, but it goes up with the advantage to the
city that the highest state court has found it a valid exercise of the
police power. The supreme court is slow to overthrow such a finding and
the chance is good for establishing a precedent irrespective of the
reasoning of the court. The decision can not be cited as sustaining the
exercise of the police power for esthetic purposes, but the charge is
well founded that esthetic considerations are poorly concealed behind
the pretext of guarding the safety, morals, and health of the people.
As a method of largely suppressing the bill-board evil it is believed
that the drastic St. Louis ordinance will be effective, since the
burden put upon the maintenance of such structures will be likely to
take away much of the profit that they bring. But it is very doubtful
whether the St. Louis method will be generally followed as a method of
suppressing the evil. Certainly in those jurisdictions where a careful
consideration has been given to ordinances of like character, it is not
to be expected that there will be different findings than heretofore.
In cities where the question is new, it is not likely that the courts
will follow the Missouri court in saying that bill-boards can not be
safely erected because of their temporary character. Until the public’s
good taste, its sense of orderliness, harmony, and beauty, are ranked
more nearly on the same plane as its health, safety, and morals, or
until the doctors have established a positive injury to health through
the sense of vision, we may expect no protection against unsightly
structures through the exercise of the police power.
OTHER METHODS OF CONTROL
Although the degree of control over intensive and offensive uses of
land which is desirable in the development of a city plan can not be
attained under the exercise of the police power, the municipality may
accomplish some of the same purposes by purchasing or taking under
eminent domain an easement in the land which it is desired to control.
If the decision in the Copley Square case, as usually interpreted,
discussed in Chapter I, is good law and is generally followed, it would
support the recent legislation in Missouri, in Indiana and Colorado,
which excludes objectionable occupations from land fronting on parks
and boulevards by purchasing or condemning the right of the owners to
use their land for such purposes.[146] The constitutionality of the
acts of Massachusetts authorizing the establishment of building lines
beyond which no building can be constructed has never been questioned;
but in all such legislation provision is made for compensating land
owners for damages. An ordinance has been introduced in Denver to
provide for taking such easements in land adjacent to parks and
parkways by condemnation and for assessing the cost of the taking upon
the district benefited. This idea is suggestive of large possibilities
but has not as yet been tested.
CONCLUSION
In conclusion, the police power is constantly being held to justify
interference with the use of private property. The only limit to such
interference is a judicial determination that a specific ordinance is
not a reasonable means of protecting the safety, health, and morals
of the community. It is for the legislative body to determine in the
first instance the reasonableness of the means. It is a sound judicial
principle, carried exceptionally far in the Missouri case cited on page
162, that courts will be slow to overthrow the determination of the
legislature.
FOOTNOTES:
[128] See Appendix, p. 242.
[129] See pp. 146 ff. for further discussion of this law.
[130] House Bill No. 81, 12th Session. (The bill was not reached in
committee.)
[131] For text of the acts, see Appendix, pp. 221, 223.
For text of the decisions, see Appendix, pp. 219, 226 ff.
[132] State _vs._ Berdetta, 73 Ind. 185.
[133] Affirmed in 194 N. Y. 19.
[134] Charter of City of Dallas, Sect. 5, Par. 12. Charter of Detroit,
Chap. 7, Sect. 44. Charter of Portland, Ore., Art. 4, Sect. 73, Par. 27.
[135] Massachusetts Revised Laws, Chapter 75, Section 91.
[136] 161 Cal. 220.
[137] 163 Cal. 457.
[138] Also see Acts of Minnesota, 1913, Chaps. 98 and 420; Acts of New
York, 1913, Chap. 774; Acts of Wisconsin, 1913. Chap. 743.
[139] For further references see Veiller, Lawrence: A Model Housing
Law, pp. 62 ff. See also “Protecting Residential Districts,” a paper
read by Lawrence Veiller at the Sixth National Conference on City
Planning, Toronto, 1914.
[140] For cases see St. Louis _vs._ Hill, 116 Mo. 527. St. Louis _vs._
Dorr, 145 Mo. 466.
[141] Bostock _vs._ Sams, 95 Md. 400.
[142] Questini _vs._ Bay St. Louis, 64 Miss. 483.
[143] Freund, Ernst: The Police Power, p. 166. Chicago, Callaghan and
Co., 1904.
[144] Appendix, p. 246.
[145] St. Louis Gunning Advertising Co. _vs._ St. Louis.
[146] For text see Appendix, p. 219.
CHAPTER VI
THE WORK OF ADMINISTRATIVE AGENCIES IN THE EXECUTION OF A CITY PLAN
We have thus far considered how the municipal authorities may execute
a plan by enforcing those rights which the legislature has delegated
to them as the representatives of the people. Through the ownership of
land and by the exercise of the police power the city may absolutely
control the working out of many details of a plan. But a city is
seriously handicapped in the use of both of these methods of control.
The acquisition of land by any method is expensive, and by the
condemnation method is both expensive and slow. To enforce a police
ordinance requires an injunction after a court hearing, and the usual
administrative agency is slow to ask for an injunction and the usual
court is slow to grant it. Some details, at least, of a city plan will
be executed, in the future as in the past, by the mere guidance of
developments undertaken on private initiative without resort to legal
compulsion.
A plan for a city’s growth generally approved by the business
interests, by public service corporations, and by the public, and
administered by a tactful agency which advocates the execution of the
proper features of the plan at the right time carries with it the
persuasion of good business policy. It becomes the thing to do to fall
in line with such a plan.
THE CONTROL OF STREET LAY-OUT BY ADMINISTRATIVE PRESSURE
In a growing community, even if the public authorities are utterly
supine in the matter, private initiative will constantly increase the
number of house lots and bring about the creation of streets necessary
to give access to them. These streets may promptly become public ways
or they may remain private ways for a long time; but in the aggregate
they form the most important single element in the city plan, largely
controlling every other feature. The most obvious and perhaps the most
important step in the wise guidance of a city’s growth is the endeavor
to make the streets thus brought into existence through private
initiative serve not merely the immediate selfish purpose of the dealer
in real estate but the permanent interests of the whole community. The
attempt to control private development is made through the supervision
of all plans offered for record, supplemented in a few cities by the
establishment of an official street plan to which all private plattings
are expected to conform.
The right in a municipality to supervise all plans of subdivisions is
well recognized in the United States, but the exercise of the right
is by no means general. It varies from a purely formal supervision,
to a real attempt to control private development. A street which is
to be a public highway is frequently required to conform to standard
specifications as to width, sidewalk space, surfacing, and so forth.
In some cities a considerable measure of co-operation is secured and
owners of property are induced to change even the number and direction
of proposed streets at the suggestion of the municipal authorities.
The method of enforcing the right of supervision in most general use
is to refuse for record any plan of proposed streets and lots which
has not been approved by the proper municipal authorities. Owners who
persist in their plan are prevented from describing lots by a short
reference to a recorded plan and must in each transfer describe by
metes and bounds. The inconvenience is considerable, although the
burden of this falls rather on the title examiner who is paid for his
labor and on the purchaser than on the vendor. In cities where the
custom of dealing in lots by reference to a recorded plat instead of by
metes and bounds is nearly universal, a prospective purchaser may balk
at buying a lot that fails to conform to the customary standard in this
respect.
Another method of control, also in pretty general use, is the refusal
to accept a non-conforming street as a public highway. Instead of
having the benefit of the co-operation of the municipality in the
construction of water mains, sewer pipes, and other municipal services,
and instead of being entirely relieved of their upkeep, the cost of
both construction and maintenance of the highway and of the various
conduits for public service falls on the owners of lots abutting on the
private street. Unfortunately, these owners are rarely the offending
developers of the property; they usually are innocent purchasers who
have bought lots, relying on the supposition that they were on an
accepted or acceptable street. Rather than pursue their rights against
the land company which made the sale, they are more likely to prevail
on the municipal authorities to waive the requirements and accept the
street as a public highway.
The experience of at least one town has worked out a variation of these
methods of pressure. Massachusetts towns, by the acceptance of Chapter
191 of the acts of 1907, may authorize the board of selectmen to act
as a board of survey with power to compel the submission of all plans
for the location of streets or highways for their approval.[147] It
was found that while development companies were usually quite willing
to submit plans and accept suggestions, when the land was cut up into
streets and lots the plans which had been accepted by the board of
survey frequently had not been followed. Consequently the town adopted
the following regulation:
Whenever application is made to the selectmen acting as the board of
survey, by the owner or owners of a parcel of land for the approval
of a plan showing the layout of streets in said land, such owner or
owners shall furnish a bond conditioned for the prompt construction
of said street or streets in accordance with the grades and layout
approved by the board of survey....
This practice seems effective at least in cases where the developer
desires the approval of the board of survey, but the situation is still
left without remedy where the developer is willing to subdivide his
land without submitting his plans to the municipal authorities and to
construct and maintain streets at his own expense.
The possibilities of official supervision have not been fully realized,
partly because of the too frequent use of political influence and
partly because of an adherence to old methods, and of an utter lack
of scientific handling of the problem and the absence of a well
considered city plan. The property owner often objects with justice to
the arbitrary specifications required both for the width of a street
and the allotments of space for sidewalk and parking strips. Even in
cities where most has been accomplished in the planning of a street
system there has not been a sufficient regard for the difference in the
use of streets as affecting their width and cross section. Many cities
require all streets to have a certain minimum width, either 40, 50, or
60 feet between property lines, whereas in some cases a width less than
this standard minimum would be much more suitable. Often a street is
made 70 feet wide because it is the extension of a street 70 feet wide,
although this width both for the old street and the new may be too
great or too little. Sidewalks in many cities are given a fixed width
in proportion to the width of the entire street, although that width
may be excessive or inadequate for sidewalk purposes in special cases.
But at best, supervision by these means will fail of great
effectiveness because too much depends on persuasion and there is too
little opportunity for legal pressure. The property owner can block
the best laid plans of the municipality. To obtain positive control of
property development land or rights in land must be taken, and for this
the city must pay.
With the purpose of forestalling private development several cities
have established bureaus to prepare an official plan of streets to
which private platting is expected to conform. A device included in the
legislation creating some of these street planning bureaus, which aims
to place the location and design of streets absolutely in the control
of the municipality, is contained in the provision that owners who
erect buildings within the limits of a proposed street as laid down
on the official plan will receive no compensation for damage to their
buildings when the street is constructed.[148]
But in every state which has enacted this provision except Pennsylvania
this interference with private property is regarded as a taking of
property without compensation, therefore unconstitutional, or has
been expressly so held by the supreme court.[149] From early times
Pennsylvania statutes have given the properly constituted municipal
authorities power to determine in advance the location of all streets
without compensation for the interference with the rights of property
owners. By act of June, 1836, commissioners were authorized to set off
a certain tract of land and plot it with streets and squares. Notice
was then given to property owners concerned, and after a hearing of
objections the plan with or without amendments was recorded and became
official “and the streets, lanes, and alleys so approved shall forever
after be deemed, adjudged and taken to be public highways.” In 1841 the
court of general sessions refused to grant a petition establishing this
plan on the ground of the unconstitutionality of the statute. The case
on a writ of certiorari went to the supreme court which reversed the
decision of the lower court and found that
The mere laying out of the streets can not be said of itself to be the
taking of the property of individuals upon which they are laid out for
public use at some future day, but rather a designation of what may
be required for that purpose thereafter, so that the owners of the
property may in due time be fully apprised of what is anticipated and
regulate the subsequent improvements which they shall make thereon
accordingly.... Until the actual opening the owners thereof continue
not only to hold the same interest in them but likewise to have the
right to enjoy them and in the same manner as they did previously.[150]
Thirty years later, in 1871, the supreme court further extended the
principle by holding that if buildings were erected within the line
of the street after notice of the plan was given to the owners, the
damage to such building on the opening of such street could not be paid
for, “otherwise the map or plan would be entirely nugatory.”[151] The
same question was considered in 1893 and the principle was held well
established.[152] Curiously enough, the first Pennsylvania case was
decided on the reasoning in a New York case decided in 1836, Furman
St., 17 Wend. 649,[153] but this New York decision was reversed in 1892
by the case of Forster _vs._ Scott, 136 N. Y. App. 577,[154] the court
holding that
Whenever a law deprives the owner of the benefit, use and free
enjoyment of his property or imposes restraint upon such use or
enjoyment that materially affects its value without legal process or
compensation, it deprives him of the property within the meaning of
the constitution.
This power of determining the lines of a street without immediate
construction of the street has allowed a widening of some of
Philadelphia’s narrow business streets in a way impossible in a city
of any other state. In 1870 it was determined to increase the width
of Chestnut Street from 40 to 50 feet by an addition of five feet on
either side. Land abutting on this street has great value and was
occupied by costly buildings, and if condemnation proceedings had
been instituted for acquiring the additional 10 feet the expense of
the improvement would have been perhaps prohibitive. But the act of
1870 provided that compensation should not be paid till a building
was reconstructed and set back to the new building line, and thus the
expense for getting a 50-foot street was distributed over many years
and nothing was paid for buildings. The same process has been adopted
for at least two other downtown streets of Philadelphia, but this power
has not been employed to increase the width of streets in built-up
areas in any other city of Pennsylvania.
PLATTING BOARDS IN VARIOUS CITIES
PHILADELPHIA. Official planning in Philadelphia is done by the bureau
of surveys. The board is composed of fourteen district surveyors
presided over by the chief engineer and surveyor of the city. Each
district surveyor has charge of a particular section of the city, with
a corps of engineers and assistants under his immediate direction. He
is the only person having the authority to make an official survey of
public or private property in his district. All fees for work done
for private parties are paid into the city treasury by the individual
for whom the work is done. Such a system gives each district surveyor
a practical knowledge of the land and of the land owners, and the
confidence which is had in the district surveyor has done more to
prevent violations of the street plan than the penalties contained in
the legislation. The city has a plan of streets ready for each district
before the land owners are ready to subdivide their land. When any one
or more of the land owners begin to consider platting their land the
district surveyor must be consulted, and the city is in a strategic
position to carry through its own officially adopted plan.
BOSTON. The board of survey in Boston was created in 1891[155] with
power to make plans of such territory “as the board may deem advisable,
showing thereon the location of such streets or ways, whether already
laid out or not as the board shall be of opinion that the present or
future interests of the public require or will require.” For five
years the activity of the board resulted in planning 6,000 acres of
comparatively unoccupied territory. The board of survey was succeeded
and its duties were taken over by the long established and conservative
board of street commissioners in 1896. Since this time there has been
much less activity, if the amount of territory covered by a street
plan is an accurate measure. The fifteen years of the work of the
street commission resulted in the platting of about the same amount
of territory as was covered by the board of survey in five years. The
difference may be due to a lack of sufficient appropriation. The act of
1891 carried with it a special appropriation for the work of platting
new streets, and the city council during the life of the board of
survey was very liberal with appropriations for this purpose. During
the subsequent history of the street commissioners the only amount
available for purposes of platting was what could be spared out of
the total appropriation for street work. It is also a fair conclusion
that there was less enthusiasm for platting under the board of street
commissioners than under the board of survey, which was created for
that specific purpose.
A provision in the board of survey act, like those in the Pennsylvania
acts, withholds compensation to property owners who erect structures
in the streets proposed for new areas, but the supreme court held
that this no-damage provision was an interference with the use of
property and that since no compensation was given the owner it was
an unconstitutional interference.[156] Although this opinion was not
necessary for a decision of the case there is little question that the
dictum would be followed in Massachusetts, and in accordance with this
dictum the street commissioners have been advised by the city of Boston
law department that building lines can not been forced without payment
of compensation.
It is conjectural just how much this decision has weakened the
effectiveness of the board of survey acts as instruments for building
up an adequate street system, since no record is kept of the violation
of the lines which the board of survey has laid down. The official
plan has standing among respectable property owners who recognize a
real economy in a planned street system. Conservative banks in Boston
refuse to loan on property subject to a board of survey line unless the
building plans show the observance of these lines. Careful conveyancers
in examining a Boston title inquire whether there is a board of survey
line on the property. The practice in Boston is to issue from the city
hall a certificate showing all municipal claims against any given
parcel of property, and the existence of a board of survey line is
noted on this certificate. Pressure can still be brought to bear on
non-conforming owners by refusal on the part of the city to co-operate
with them in the construction and maintenance of the water, sewer, and
lighting systems. It is the general impression among those who are most
closely acquainted with the work of the laying-out of the streets that
violations of the street lines are of infrequent occurrence.
Under Chapter 191 of the acts of 1907, Massachusetts towns may
authorize their selectmen to act as a board of survey with the same
power to lay out official streets as the Boston street commissioners.
Several towns of the state have accepted the act and in a very few
cases survey lines have been imposed on particular streets, but there
has been no general extension of the street plan into unoccupied areas.
NEW YORK. New York had a topographical bureau for four years, dating
from the first Greater New York charter, January 1, 1898, but during
these formative years there was little or no progress with official
plans. On January 1, 1902, the amended charter placed the topographical
work in each of the five boroughs under the control of the borough
president, and since then five separate bureaus have had charge of
the completion of the map of the city and the drainage plan. The
disadvantage of separate planning bureaus, particularly where the
territory of two boroughs is contiguous, is obvious. There is, however,
one opportunity for securing co-ordination in street planning. All
plans must be submitted by the presidents of the boroughs to the
board of estimate and apportionment, and they do not become official
without the approval of that board. In Manhattan and Brooklyn the plans
submitted consist almost entirely in changes in the official map which
is practically complete for both boroughs. The following table shows
the work of the topographical bureaus in the other boroughs since 1902:
TABLE 7.—PROGRESS MADE IN MAPPING THE BOROUGHS OF THE BRONX, QUEENS,
AND RICHMOND, NEW YORK CITY, TO JANUARY 1, 1913[157]
======================================+======================
| BOROUGH
+——————+——————+————————
|The |Queens|Richmond
|Bronx | |
——————————————————————————————————————|——————+——————+————————
Total area in acres |26,523|75,111|36,600
——————————————————————————————————————|——————+——————+————————
Acres approved for mapping prior to | | |
Jan. 1, 1902 | | |
Tentative | — | — | —
Final |14,430| 5,402| 60
——————————————————————————————————————|——————+——————+————————
Total |14,430| 5,402| 60
——————————————————————————————————————|——————+——————+————————
Between Jan. 1, 1902, and Jan. 1, 1912| | |
Tentative[158] | 956| 3,416| 7,940
Final |10,004|14,476| 964
——————————————————————————————————————|——————+——————+————————
Total |10,960|17,892| 8,904
——————————————————————————————————————|——————+——————+————————
During 1912 | | |
Tentative | — |12,984| 2,540
Final | 234| 3,070| —
——————————————————————————————————————|——————+——————+————————
Total | 234|16,054| 2,540
——————————————————————————————————————|——————+——————+————————
Total area in acres mapped to Jan. 1, | | |
1913 | | |
Tentative[158] | 956|16,168|10,480
Final |24,668|22,948| 1,024
——————————————————————————————————————|——————+——————+————————
Total |25,624|39,116|11,504
——————————————————————————————————————|——————+——————+————————
Per cent of borough area in acres | | |
mapped to Jan. 1, 1913 | | |
Tentative[158] | 3.6| 21.5| 28.6
Final | 93.0| 30.6| 2.8
——————————————————————————————————————|——————+——————+————————
Total | 96.6| 52.1| 31.4
——————————————————————————————————————|——————+——————+————————
BALTIMORE. The Baltimore topographical survey commission was created
by ordinance in 1893 for the purpose of making a complete survey
of the city, including about seventeen square miles of undeveloped
territory, rural in character, which had become a part of the city in
1888. With the completion of the survey an official plan was adopted
for the annexed territory in 1893 by the mayor and city council, and
subsequently by act of the general assembly of Maryland, Baltimore was
prohibited from accepting a deed of dedication or the opening in any
manner of a street which did not conform to the general plan or the
plan duly amended. Amendments of the official plan must be approved by
the topographical survey commission and adopted by the city council
before they can be incorporated.
In spite of the legislation in Maryland which seems to put the control
of city planning in the hands of the city, and in spite of the activity
of topographical bureaus of New York City, the limitations on municipal
control of street planning in both Baltimore and New York are the same
as in Boston. Official streets in both cities have been blocked by the
owners of the land or speculative builders, and cases of successive
house planting in New York City are notorious. And yet, the advantages
of official street plans are considered to offset these limitations and
street planning bureaus have passed the experimental stage.
Their success furnishes a precedent for many cities in the United
States which still exercise little or no control over a phase of
planning where the interest of the private owner is so often opposed
to the public good. The possibilities of administrative pressure in
the solution of other city planning problems now determined on the
initiative of private or corporate interests suggest themselves. The
development of the water front, the location of railroad terminals, the
transit problem, have all been distinctly recognized as requiring the
permanent attention of a special planning board representing the public
interest. But in those fields where the public interest is apt to
conflict with the advantage of private or corporate owners, the value
of expert suggestion and study can never be as fully realized as where
the execution of a plan is entirely in the control of the municipality.
PLANNING OF PUBLIC WORK OTHER THAN STREETS
In the location and design of public parks and in the location and
design of public buildings, including bridges, the administrative
agency of the municipality or other governmental unit has a free hand.
The establishment and development of a system of parks and parkways are
now entrusted very generally to an administrative board which employs
expert advice and considers the park problems of the entire city as a
unit. The location and design of public structures are, however, in
most cases left to the judgment of the several departments which will
use or maintain them; but occasionally the function of a municipal
art commission is enlarged so that its approval is necessary to the
selection of the site and design for public structures as well as for
the location and design of “works of art.”
In New York City the art commission must approve the location and
design of all structures for which the contract price exceeds $250,000;
but in the case of other public structures the approval of the
commission need not be required if the mayor or the board of aldermen
request the commission not to act.[159]
The Philadelphia art jury created in 1912 was given this additional
power by the legislature of 1913.
No construction or erection in a city of the first class of any
building, bridge or its approaches, arch, gate, fence, or other
structure or fixture which is to be paid for wholly or in part by
appropriation from the city treasury or other public funds, or for
which the city or any other public authority is to furnish a site,
shall be begun until the approval of the jury shall have been given
to the design and proposed location thereof. The approval of the
jury shall also be required in respect to all structures or fixtures
belonging to any person or corporation which shall be erected upon
or extend over any highway, stream, lake, square, park or public
place within the city.... In deeds for land made by any city of the
first class restrictions may be imposed requiring that the design and
location of structures to be altered or erected thereon shall be first
approved by the art jury of each city. Nothing requiring the approval
of the jury shall be erected or changed in design or location without
its approval. If the jury fails to act upon any matter submitted to
it within 60 days after such submission, its approval of the matter
submitted shall be presumed.[160]
In spite of the complete control which a municipality has over the
location and design of public structures and the creation and extension
of its park system, the obstacles to the formulation of and adherence
to a consistent plan are as persistent and often as effective as those
which prevent the control of street development.
Expert suggestions have too frequently been disregarded by a purely
political city council whose power of appropriation is a most effective
check on the execution of city plans. One of the chief objections
to the usual form of city government with a mayor and a large
elected council of one or two chambers, aside from incompetence and
wastefulness and, at the worst, dishonesty, arises from this power of
obstruction. Neither the people’s representatives in council nor the
engineers and architects in the employ of the city departments have
been educated to the idea of a unified city. The department system
emphasizes a city’s subdivisions; the political system emphasizes still
different subdivisions; and neither group of subdivisions logically
fits into a city plan. There may be interesting historical reasons for
the combination of certain areas into this or that group; politicians
may have had shrewd reasons for establishing certain political
boundaries; but the topographical conditions of the site often prove
the strangeness of the compound. Several sections contained in a
political subdivision may be separated by considerable waterways or
difficult grades so that transit between parts of the same political
district is almost prohibitively expensive; and yet that district must
be treated as a unit when appropriations for public improvements are
considered. The ward or district method of electing city councilmen
does not produce a body interested in the best development of the
city as a unit, the best transit system for the whole city, the
best park system for the whole people, the most complete playground
system for all the children. Instead, forty units, more or less, with
selfish ideas fostered by local business men and property owners, are
represented each by a councilman whose best equipment is his ability to
get things for his own ward, and the city plan develops like a crazy
quilt.
The last few years have seen considerable development of the unit idea.
One interesting step is the correlation of all the departments of a
city administration. This is done, first, by the creation of a new
administrative board in which are united for purposes of efficiency and
economy the various departments. Thus under a board of public works
or of public improvement are united the maintenance work of the city,
and the construction of streets, water mains, sewers, and so forth,
each of which municipal services was formerly in charge of a separate
department.
The mayor’s cabinet in Kansas City, Missouri, is an interesting
experiment in correlation. A weekly conference of the heads of all
city departments is held at which questions from each department
which affect the development of the entire city are discussed,
and the policy of each department is influenced by its effect on
other departments. For nine months the experiment was tried only in
connection with the city administration. It succeeded so well that to
the members of the city administration were added representatives from
several organizations and industrial bodies. These conferences are
said to have resulted in an improvement in the city’s management by
the securing of a most desirable measure of co-operation between the
administration and the tax payers. Kansas City was a most advantageous
field for an experiment of this kind. The creation of the park and
boulevard system of the city had already produced the finest kind of
co-operation between property owners and the park commission, and an
eager willingness on the part of the citizenship to contribute to the
carrying out of the unit idea as expressed in plans of the commission.
The elimination of ward representation in city government is a recent
advance toward the unit idea. It is sometimes expressed in the
commission form of government, sometimes in a single city council
elected at large. From the viewpoint of city planning the most
notable advantage of this simplified form of government is that the
administration represents the entire city and is not a collection of
representatives from the several parts of the city. Other advantages
due to a saving in time and money caused by a smaller body with a
businesslike procedure, are no doubt real. It is more satisfactory
in urging the need of planning measures to deal with a few men,
whether bad or good, efficient or stupid. It is also wholesome to
fix the responsibility of a policy on an administration consisting
of a few men rather than to trace the responsibility through a maze
of committees and motions to an irresponsible clerk. City planning
legislation may chance to succeed in two chambers of a city council in
spite of numbers, because of the domination of one or two individuals;
but when responsibility for success or failure must be fixed, it
will not be placed on those individuals but ingeniously distributed
over various committees. If the single council of limited number
is likely to produce better councilors, just so far city planning
measures may be benefited; but there is no guaranty of this result.
However constituted, the smaller body does represent the entire city;
and though each individual member will have by natural and political
inheritance a desire for the advancement of his own locality, he may be
controlled by the greater fact that he is chosen by all the citizens of
the city.
Boston is the largest city with sufficient experience to test this
theory. Certain critics of the charter of 1909 tried to strike a
locally popular note by alleging that wards without representation
in the council did not get their share of the annual appropriations
for local improvements. This statement is not borne out by the facts.
The figures for the years 1910 and 1911 show a total appropriation
of $2,132,881 for local improvements excluding appropriations for
highways, sewers, bridges, and other improvements in which the city as
a whole is interested. Of this sum, $795,163 was used in four districts
which had no representative, as the term was formerly used in the
council. The entire membership in the council came from six districts
of the city, or seventeen wards. Distributing the amount spent on
these districts among the seventeen wards would result in an average
of $78,689 each, with which an average of $90,395 for each of the
eight wards in unrepresented districts compares very favorably. Five
members of the council of nine live in three wards whose appropriations
for the last two years for local improvements make a total of
$133,000. This is only one-sixteenth of the total appropriated, and
the remaining fifteen-sixteenths is for districts which all together
had only a minority in the council. Such evidence is an interesting
corroboration of the sound conclusion that the elimination of sectional
representation is an important step toward the carrying out of the unit
idea in comprehensive city planning.
PLANNING COMMISSIONS
1. HISTORY
The appointment of planning commissions is the most recent step in the
development of the unit idea in city planning. In theory, the function
of this new agency is to correlate the official plans prepared in
the various municipal departments, to pass upon unofficial plans or
suggestions for improvement, and to make plans of its own in all cases
where no existing agency has jurisdiction. Hartford, Connecticut, was
the first to establish such a commission under a resolution of the
Connecticut Legislature of 1907.[161] The Chicago plan commission dates
from 1909; the Baltimore and Detroit commissions from the following
year.
In 1911 Pennsylvania and New Jersey passed general acts enabling
cities of the second class (Pittsburgh and Scranton) in Pennsylvania
and cities of the first class in New Jersey, to create an additional
executive department to be known as the department of city planning.
In 1913, by general law, New York state authorized the appointment
of planning commissions in all cities and incorporated villages;
Pennsylvania extended the act of 1911 with important amendments to
cities of the third class, and Massachusetts made planning commissions
mandatory in all cities and towns of over 10,000. In the same year
by special act of the Connecticut Assembly plan commissions were
authorized for the cities of New Haven and West Hartford, following the
precedent of Hartford; in Ohio, Cleveland[162] and Dayton included city
planning commissions in their new city charters.
The following list of active plan commissions does not include
temporary commissions appointed merely to make a report or prepare a
city plan.
TABLE 8.—YEARS IN WHICH PLANNING COMMISSIONS WERE AUTHORIZED, AND
SOURCE OF AUTHORIZATION, FOR THE 54 CITIES OR TOWNS HAVING PLANNING
COMMISSIONS IN APRIL, 1914
========================+====+==========
City |Year|Authorized
| | by
————————————————————————+————+——————————
Hartford, Conn. |1907|Act
Chicago, Ill. |1909|Ordinance
Baltimore, Md. |1910|Act
Detroit, Mich. |1910|Ordinance
Jersey City, N. J. |1911|Act
Newark, N. J. |1911|Act
St. Louis, Mo. |1911|Ordinance
Pittsburgh, Pa. |1911|Act
Philadelphia, Pa. |1911|Ordinance
Salem, Mass. |1911|Ordinance
Lincoln, Neb. |1911|Ordinance
Trenton, N. J. |1912|Ordinance
Cincinnati, Ohio |1913|Ordinance
Scranton, Pa. |1913|Act
Schenectady, N. Y. |1913|Ordinance
Pittsfield, Mass. |1913|Act
Fitchburg, Mass. |1913|Act
Waltham, Mass. |1913|Act
Lawrence, Mass. |1913|Act
Lowell, Mass. |1913|Act
Springfield, Mass. |1913|Act
Northampton, Mass. |1913|Act
Holyoke, Mass. |1913|Act
Malden, Mass. |1913|Act
Louisville, Ky. |1913|Ordinance
New Haven, Ct. |1913|Act
New London, Ct. |1913|Ordinance
Bridgeport, Ct. |1913|Ordinance
Erie, Pa. |1913|Act
Providence, R. I. |1913|Ordinance
Adams, Mass. (town) |1913|Act
Chelsea, Mass. |1913|Act
Chicopee, Mass. |1913|Act
Cambridge, Mass. |1913|Act
Chester, Pa. |1913|Act
Easton, Pa. |1913|Act
Syracuse, N. Y. |1914|Act
Meadeville, Pa. |1914|Act
Reading, Pa. |1914|Act
Scranton, Pa. |1914|Act
Harrisburg, Pa. |1914|Act
Oil City, Pa. |1914|Act
Boston, Mass. |1914|Act
Gloucester, Mass. |1914|Act
Haverhill, Mass. |1914|Act
Melrose, Mass. |1914|Act
Medford, Mass. |1914|Act
Newton, Mass. |1914|Act
Newburyport, Mass. |1914|Act
Somerville, Mass. |1914|Act
Taunton, Mass. |1914|Act
Watertown, Mass. (town) |1914|Act
Framingham, Mass. (town)|1914|Act
Binghamton, N. Y. |1914|Act
————————————————————————+————+——————————
A suburban metropolitan plan commission was also created in 1913
for Pennsylvania cities of the first class (Philadelphia), to have
jurisdiction over a district comprising the cities within 25 miles
of Philadelphia. This commission is to be composed of fifteen
members appointed by the governor of the state. Its aim is to secure
“coordinating comprehensive plans of highways and roads, parks and
parkways, and all other means of intercommunication; water supply,
sewerage and sewage disposal, collection and disposal of garbage,
housing, sanitation and health, playgrounds, civic centers, and other
public improvements that will affect the character of the district as
a whole or more than one political unit within the district.”[163] The
aims of the commission can be realized only by recommendation to the
several governmental units contained in the district. This legislation
is particularly interesting since it is the first successful attempt to
create a metropolitan planning commission.
The commission of inquiry appointed by the governor of Massachusetts
in 1911 presented to the legislature of 1912 a draft for just
such a planning commission, which contained a novel feature for
getting its plans carried out. Massachusetts is well supplied with
executive commissions with some planning functions. It has a highway
board, a grade crossing commission, a transit commission, a gas and
electric light commission, a railroad commission, a metropolitan
park commission, and a metropolitan water and sewer board, all with
jurisdiction in the metropolitan district. The commission of inquiry
wisely recommended the necessity of keeping these existing commissions
in office. Their tasks were large enough.
The new commission was to be distinctly a planning and not an executing
body. Its province was to be suggestion, advice, supervision, and
correlation. The cities and towns of the metropolitan district were
to be offered, for the consummation of improvements classed as
metropolitan by the planning commission, the credit of the state and
a direct contribution toward the cost of improvements by the state
and by the metropolitan district at large, if the local unit accepted
in its development the plan of the commission. The device thus
incorporated in the bill recognized two strongly rooted attributes in
municipal character—jealousy of local self-government and openness to
persuasion when the persuasion is golden. It distinctly kept hands off
of metropolitan commissions, county commissions, and local governments,
by the provision that all improvements should be executed by the body
that would have executed them before the passage of the bill. It
offered merely to provide a plan for the whole district and help on
the financial burden. All improvements in the metropolitan district
submitted to the proposed planning commission were to be classified
as local improvements, as ordinary metropolitan improvements, or as
extraordinary improvements. In the case of purely local improvements
the locality stood the entire financial burden; in the case of ordinary
metropolitan improvements the localities in which the improvement was
located paid 65 per cent of the entire cost, the metropolitan district
20 per cent and the state 10 per cent; in the case of an extraordinary
metropolitan improvement the distribution of the expense was to be
determined by a commission appointed by the supreme court of the state.
A feature of very real financial assistance was offered by the
provision that towns or cities of the district might borrow money to
meet the expense of metropolitan improvements, and this loan would
not be considered in reckoning the debt limit. The weakness of the
device is in the provision that 20 per cent of the cost of metropolitan
improvements should be paid by the entire district. It is very
questionable whether there is unity enough in any metropolitan district
to allow a fixed assessment over the whole district for an improvement
where the most direct benefit is to only two or three towns. But this
interesting experiment did not survive the legislative hearing. It was
defeated not so much because of opposition to the principle of the bill
as out of real or imaginary fear in the minds of the political leaders
in the towns and cities about Boston, who see in any plan for a more
unified development of the metropolitan district the domination of
Boston.
Another legislative experiment in city planning which did not come to
maturity should also be mentioned. In 1910 the city of Seattle adopted
an amendment to the city charter by the addition of a new article
which created a municipal plans commission. Seattle was just then
finishing some costly reconstruction, washing away grades and widening
important thoroughfares, and the wisdom of avoiding such an experience
again appealed to the city with peculiar emphasis. The amendment put
on the commission the duty of procuring plans for the arrangement of
the city with a view to such expansion as would meet probable future
demands. Of the twenty-one members of the commission seven represented
the city or county government, and fourteen were appointed by the
mayor from nominations of fourteen groups representing architects,
engineers, business, real estate, the water front owners, and the
public service corporations. The commission served without compensation
but was authorized to employ experts, not exceeding three, to prepare a
comprehensive plan.
So far there is nothing new in the legislation, but the next provisions
are unique. The report was to be presented to the mayor and council not
later than December 30, 1911, and
They shall cause the recommendations of the commissions to be
submitted to the people at the next general or special election. If
a majority of the voters shall favor the adoption of said plan so
reported it shall be adopted and shall be the plan to be followed
by the city executive departments in the growth, evolution, and
development of the city of Seattle until modified or amended at some
subsequent election.
After a most thoroughgoing study by an expert, the commission presented
an excellent plan and went out of existence September 30, 1911.
There was no provision in the legislation for educating the people
sufficiently to enable them to cast an intelligent vote. The Seattle
experiment is interesting in being the first attempt to make the whole
electorate directly responsible for the direction of the city’s growth.
It is in accordance with the democratic ideas of legislation which have
come out of the west. The people were not ready for so big a program
and defeated the project at the polls in the spring of 1912.
No one of these commissions has had a history long enough to be judged
by its accomplishments. The Hartford commission, which is the oldest,
has fulfilled one of its duties by the publication of a preliminary
report embodying the recommendations of the advisory architects for a
plan of the city. Its chief activity outside of this has been along
lines similar to these employed by the Baltimore topographical survey
commission. Detroit’s commission, after working without adequate
appropriation for two years, has started the preparation of a plan.
The Newark commission under expert advice has prepared two reports;
one preliminary in character reviewing the general problem and making
some recommendations in regard to the improvement of street lines and
grades and street car operations; the other, a special study of a most
congested point in Newark at the junction of Broad and Market streets.
Other commissions have outlined plans of activity.
2. THE FUNCTIONS OF A CITY PLANNING COMMISSION
The effectiveness of any city planning commission is bound to be
dependent on the attitude of other existing administrative agencies
which have as a part of their function the planning and execution
of public improvements. This attitude does not spring merely from
self-interest of the older agencies. If, for instance, the street
commission or the bureau of survey is doing its work of planning a
street system well and seeing that parts of it get constructed at the
proper time, there would seem to be little in this line for a planning
commission. The same may be said of the park commission, the school
board, and others. The city, in other words, may have administrative
agencies which are covering practically the entire field of municipal
effort in planning the streets, the parks, the public buildings, and
other works.
The legislation under which city plan commissions are established
recognizes the difficulty in the creation of a new administrative
body whose powers may overlap those of existing agencies. This is
evidenced particularly in the provision covering membership and scope
of powers. Co-operation with existing administrative agencies and with
law making bodies is aimed at in Hartford, in St. Louis, and in Salem,
Massachusetts, by having both the administrative and legislative side
of the government represented on the commission. In each of these
cities the mayor is ex-officio chairman of the city plan commission.
In Hartford seven of the nine city plan commissioners are members of
the city administration. Besides the mayor, the official members are
the city engineer, president of the street commissioners, president of
the park commissioners, the superintendent of parks, and a member from
both branches of the city council. In St. Louis seven of the fifteen
members are from official life, the mayor, the president of the board
of public improvement, the street commissioner, the park commissioner,
the building commissioner, the president of the city council, and
the speaker of the house of delegates. In Salem, Massachusetts, the
city government is represented in the commission by the mayor, the
president of the board of aldermen, and the president of the common
council. Detroit’s commissioner of public works, commissioner of parks
and boulevards, and city engineer are ex-officio members of the plan
commission, but without power to vote.
Further to avoid conflict with existing agencies, commissions are given
very limited powers which make them hardly more than advisory bodies.
That of Baltimore, for instance, has merely the duty of investigating
all plans proposed for the extension of highways and the establishment
of a civic center and other public improvements in connection
therewith, and reporting the results of its investigations to the city
council. Several commissions are charged with the constructive duty of
preparing a systematic plan, and in connection therewith are given more
or less control over private platting in order to compel conformity
with the plan. The Detroit commission has an additional power similar
to that given to a municipal art commission. Section 6 provides:
No work of art shall be removed, relegated or altered in any way,
nor shall any property be acquired for park or boulevard purposes,
nor playground, nor shall any property be condemned for the widening
or extension of any park, boulevard or public playground unless
the project has been submitted to and approved by the city plan
commission; nor shall any gift to the city of a monumental character
be accepted until the sketch, plan and location of the same has been
approved by the city commission.
FIRST FUNCTION: TO SECURE CORRELATION OF EFFORTS. But assuming existing
agencies which plan adequately for each class of the physical elements
of a city and which carry out satisfactorily these several plans, there
is still needed a permanent body, non-partisan in character, whose
primary function shall be to harmonize the plans of existing agencies
and to bring forward for execution those plans which are most demanded.
This new agency should be the constant guardian of the city plan to
which every question of planning policy should be referred, just as
questions of financial policy are now referred to a finance commission
in several cities of the United States.
That the lack of correlation is a serious problem is proved in the
experience of many cities. There is no guarantee of co-operation
between the several administrative departments with planning functions.
There is, of course, some co-operation, but the maximum or minimum
depends on nothing except the good sense and friendly feeling of bureau
heads. It is not an unusual thing for the street department to spend
some time and some money on resurfacing, only to have the street opened
within a month by the water or sewer department for the installation of
new water pipes or drains. And what is true of streets and highways can
be illustrated in other departments of planning activity.
An improvement is now too seldom considered in its relation to the
whole plan. Alternative schemes for a subway are discussed and
determined in the interest of those whose property is affected, and
the effect of either scheme on the relief of congestion or the opening
of new territory to residence gets scant consideration. Street car
companies and representatives of the city and property owners fasten on
the city a transit system approaching a maze in intricacy and leaving
focal points without connection. The transportation problem alone needs
a trained agency constantly studying tendencies of retail trade, of the
drift of waterfront activities, and constantly suggesting the need for
new connecting links either for highways or transit lines.
However desirable in theory may be this vesting of control over
physical development of the city in a new agency, there is little or
no provision for it in the procedure of existing plan commissions.
They are for the most part frankly advisory boards, and in some cases
have no power even of suggestion unless called upon by the mayor and
council. If the plan commission is to be an intelligent correlating
agency, there must be provision for constant reference to it of new
construction work of all municipal departments even at the risk of
swamping the clerical force of the city planning commission by a mass
of detail with little bearing on the city plan. And if any department
proposes a serious violation of the plan for the whole city, the plan
commission should have the opportunity to arrest the proposed violation
long enough to get the point at issue before the public and their
representatives in city council and thus fix the responsibility for
whatever action is taken after careful consideration.
There are, of course, objections to this modified veto power. It tends
to undo an excellent municipal reform by which has been achieved the
concentration of responsibility for a public action, and it tends also
to produce delay in the execution of public work. But with such a
power a judicious and tactful commission would settle most differences
in conference, and without it even an ideally constituted commission
might be helpless. Just what form this veto shall take and how it
shall affect the relations between existing administrative departments
and the new agency will depend largely on local conditions, and this
question with many others of organization and procedure must wait
for more than a theoretical answer until existing commissions have
had a longer history. Interesting in this connection is section 3 of
the recent Pennsylvania act authorizing plan commissions in third
class cities, which provides that all bills and ordinances must, upon
introduction in the city council, be referred to the plan commission.
The proposed measures may be disapproved by the plan commission but
disapproval shall not operate as a veto.[164]
SECOND FUNCTION: TO FACILITATE FUTURE IMPROVEMENTS. The second function
of the city planning commission is to suggest changes in the way of
doing things calculated to facilitate the execution of a plan. The city
planning field is peculiarly one for investigation and experimentation,
and the city planning agency is as necessary in it as an experiment
station in the fields of forestry and agriculture.
It took but little experimenting to prove the economic value of a
flexible street which may be stretched to meet future demands. The
flexibility is produced sometimes by imposing a building line set back
from the street line varying distances,—even the minimum distance of 10
feet on either side providing an inexpensive increase in the street’s
width of 20 feet. The same result is accomplished by the city’s
acquiring a greater width than is at present necessary for the use of
the street and allowing a certain portion of this width on either side
to be used by the owners for garden purposes, but not for buildings of
any kind.
Boston’s experiments with her narrow streets in congested retail
districts have brought about the use of one-way streets and the
regulations against standing vehicles. Other cities have taken a census
of traffic conditions along important traffic ways and, in New York
City at least, there have been attempts made to direct the lines of
traffic particularly at congested centers.
It is possible to have a degree of flexibility even in an area closely
built up with expensive buildings, such as downtown districts of any
large city, if the planning board is given the right to modify the
provisions of the building code in return for concessions from property
owners, and a very necessary widening of streets is made possible which
otherwise would be prohibitively expensive. In cities, for instance,
which have established a height limitation for buildings, even in the
central business district, owners fronting on narrow streets might
grant to the city land enough to give the street adequate width if
their loss in floor space was compensated, not in money but by allowing
them to exceed the height limitation by the addition of other stories
to their buildings. A building with a 100-foot frontage and 100-foot
depth, 10 stories in height, would lose in actual floor area 10,000
feet by a grant to the city of 10 feet for sidewalk purposes along its
entire frontage. By adding another story 10 to 15 feet in height, 9,000
feet of this loss would be returned. To determine the feasibility of
such suggestions as this would be particularly the province of the city
planning board.
Parks and playgrounds now purchased or appropriated at great expense
and even then but meagerly supplied in many cities, should be reserved
in advance of actual need. Where the problem has best been solved, as
in the small parks and playgrounds of Chicago, the commissioners are
able to locate wisely new parks and playgrounds in accordance with the
density of population, as shown on maps of the city, which are kept
up to date. The suggestion is that this can be done with sufficient
accuracy before prices rise, and that a planning board is best
qualified to make such a reservation because of its intimate knowledge
of the trend of industry and other factors which determine the density
of population.
The plan commission should be concerned not only with the original
planning of the streets but with the changes of the street system
made necessary by the location of new industries, the location of new
terminal stations either for steam lines or rapid-transit lines, or
the appearance of any new element which will create a focal center
and attract a stream of travel. There is not a city of 100,000 in
the United States which ought not today to widen streets or open new
ones in order to give an adequate approach to travel centers. If
this widening or opening were done at the time when it could be done
most economically and when a planning board would advise it, if the
problem were constantly studied by such a board, cities would be saved
great outlays for reconstruction and great losses through failure to
reconstruct.
3. BROAD OPPORTUNITIES OF THE PLANNING COMMISSION
The city planning board would be quick to discover desirable changes
in legislation. The activity in city planning legislation of the 1913
Pennsylvania Legislature shows what may be accomplished by a commission
intimately acquainted with the local difficulties which prevent
satisfactory execution of plans. It passed a city planning act for
the cities and towns within 25 miles of Philadelphia. It authorized
the appointment of city planning commissions for cities of the third
class. It increased the power of the Philadelphia art jury so that its
approval is made necessary for the selection of the site as well as the
design of public structures.[165] It granted to all the cities of the
state the power to indicate on the official plan, reservations of parks
and playgrounds in the same way as they now are allowed to establish an
official plan for streets.
Various phases of the planning problem are from time to time made the
subject of investigation by special commissions, as for instance, the
Massachusetts commission appointed to consider the methods of land
acquisition which have been described on page 106. Such studies might
be better conducted by the plan commissions whose experience with other
planning problems would be of great value.
Finally, the commission should at all times be a propagandist body
educating the citizens to see the economy of planning in general and to
decide every specific question of the city’s physical growth from the
standpoint of city planning. The thoroughgoing work of the Chicago plan
commission in this field is an example of what can be accomplished.
The creation of a city plan commission would be justified if it did
nothing but safeguard the unit idea by correlating the work of other
municipal departments in accordance with the city plan. If it is also
to make clear to the citizens the value of city planning and to be a
bureau of city planning research, its task will be so consuming that it
need not take over any of the functions of existing agencies.
FOOTNOTES:
[147] For text of act see Appendix, p. 280.
[148] See Appendix for text of legislation, pp. 243 ff., 282.
[149] Forster _vs._ Scott, 136 N. Y. App. 577. See Appendix, p. 244.
Edwards _vs._ Bruorton, 184 Mass. 529. See Appendix, p. 245.
[150] In re District of Pittsburgh, 2 W. and S. 320.
[151] Forbes St., 70 Pa. 125.
[152] Bush _vs._ McKeesport, 166 Pa. 57. See Appendix, p. 244.
[153] See Appendix, p. 243.
[154] See Appendix, p. 244.
[155] The act does not differ in principle from that creating a Town
Board of Survey. See Appendix, p. 280.
[156] Edwards _vs._ Bruorton, 184 Mass. 529. See Appendix, p. 245.
[157] Report of Chief Engineer, Board of Estimate and Apportionment,
1912, page 66.
[158] Excludes areas for which final maps have been adopted.
[159] Charter of New York City as amended by Chapter 675 of the laws of
1907, Section 637.
[160] Pa. Acts, 1913, No. 456.
[161] See Appendix, p. 296.
[162] For text, see Appendix, p. 299.
[163] Act No. 226 of 1913.
[164] For text of the act, see Appendix, p. 290.
[165] For text of legislation see Appendix, p. 305.
APPENDICES
APPENDIX A
LEGISLATION AND DECISIONS
I. RESTRICTIONS ON THE USE OF LAND
A. BUILDING LINES
1
CHARTER OF THE CITY OF ST. LOUIS. Article VI, Sect, 1.
Boulevards, Conditions for the establishment.
The Municipal Assembly may by ordinance, recommended by the Board of
Public Improvements, establish and open boulevards or change existing
streets into boulevards ... and may regulate the traffic thereon, and
may exclude heavy driving thereon, or any kind of vehicle therefrom,
and may exclude and prohibit the erection or establishment or
maintenance of any business houses, or the carrying on of any business
vocation on the property fronting on such boulevard, and may establish
a building line to which all buildings, fences or other structures
thereon shall conform.... Adequate compensation shall be allowed the
owners of property fronting or bordering thereon for damages occasioned
by the establishment of a building line on such boulevard, and by
limiting the use to which such property may be put by the owners
thereof.
2
ACTS OF INDIANA, 1909. Chap. 89, Sect. 7.
Building lines—Cities of 100,000 or over.
The Board of Public Works may establish a line determining the distance
at which all structures to be erected upon any premises fronting any
park, parkway, park boulevard or boulevard shall be erected, and may,
in the name of the city acquire by condemnation the right to prevent
the erection of, and to require the removal of, all structures outside
of such lines.... The establishing of any building line outside of any
park, parkway, or boulevard, as herein provided, in connection with
the condemnation of the land for the same, shall be understood to be
condemnation and the perpetual annihilation of all rights of the owners
of property which shall front on such park, parkway or boulevard, or
across which such building line shall run, to erect any building or
structure whatever or any part thereof between such building line and
such boulevard, park or parkway; or such result may be accomplished
by absolute condemnation of the land, with perpetual and irrevocable
free license to use and occupy such land between any building line
established and the outside line of such park, parkway, park boulevard
or boulevard for all purposes except the erection of buildings or
other structures. No subdivision into lots of any lands lying within
five hundred feet of such boulevards, parks or parkways shall be valid
without the approval of such board of park commissioners.
3
REVISED LAWS OF MASSACHUSETTS. Chap. 48, Sect. 103, as amended by
Chap. 572 of Acts of 1913.
Building lines in cities and towns.
If the city council of a city or if a town accepts the provisions of
this section or has accepted the corresponding provisions of earlier
laws, a building line not more than 40 feet distant from the exterior
line of a highway or town way may be established in the manner provided
for laying out ways, and thereafter no structures shall be erected
or maintained between such building line and such way, except steps,
windows, porticos and other usual projections appurtenant to the front
wall of a building to the extent prescribed in the vote establishing
such building line, and except that buildings or parts of buildings
existing at the time of the establishment of the building line may be
permitted to remain and to be maintained to such extent and under such
conditions as may be prescribed in the vote establishing such building
line. Whoever sustains damage thereby shall have the same remedies
therefor as for damages sustained by the laying out of a town way.
4
HOUSE OF REPRESENTATIVES, JANUARY 24, 1910. 61st Congress, 2d Session.
H. R. 19069. (Identical with S. 5715)
A BILL providing for the establishment of building lines and special
building restrictions in the District of Columbia.
_Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled_, That the Commissioners of
the District of Columbia are hereby authorized and empowered from time
to time and at all times hereafter by public notice by advertisement
published in some newspaper or newspapers of general circulation in
the said District at least once a week for three successive weeks
prior to the expiration of said notice, to designate any highway or
highways, street or streets, or avenue or avenues in the District of
Columbia now existing or which may hereafter be created or dedicated
or condemned or purchased, or any part or parts thereof, the land
fronting upon which shall thereafter be subject to certain building
restrictions (which restrictions said commissioners may impose, alter,
amend, or modify at the time such designation is made, or at any time
or times thereafter), and the said highways, streets, or avenues,
or part or parts thereof so designated shall be classed as Class A
streets, and all other highways, streets, and avenues, or part or
parts thereof shall be classed as Class B streets, and it shall be
the duty of the said commissioners, and especially of the engineer
commissioner, to give preference, in their discretion, to Class A
streets in all recommendations and estimates for street improvements,
and in all matters of sidewalk construction, laying of curbs, and the
maintenance of the surface of the streets. And said commissioners are
hereby further authorized and empowered in making, altering, amending,
or modifying said special restrictions to include in whole or in part
the _establishment of building lines, prohibitions as to the erection_
or _alteration of buildings designed or proposed to be used for
business purposes, prohibitions as to the establishment of any place of
business, and such requirements as to height of buildings, materials of
construction, and architectural design as shall secure, in the judgment
of said commissioners, the beautiful and harmonious appearance, as
viewed from the public streets, of all structures to be erected or
altered on the land to which said restrictions shall apply: Provided,
That no such designation shall be made unless the owners of ninety per
centum, or more, measured by the front foot, of the property fronting
upon the street, avenue, or part or parts thereof under consideration
shall in due form have dedicated, or granted, or conveyed, or assigned
to the District of Columbia, in consideration of benefits received or
to be received, easements in, to, and upon their property by virtue of
which said special restrictions may be established_: Provided further,
That the Commissioners of the District of Columbia may exercise their
judgment as to whether such special restrictions shall cover only
the ninety per centum or more of frontage, the owners of which have
conveyed easements as above provided, or, in addition to such frontage,
any portion of the remaining property fronting on the highway, street,
or avenue, or part or parts thereof under consideration.
SECT. 2. That if said commissioners in the exercise of their judgment
shall designate highways, streets, or avenues, or any part or parts
thereof, and shall impose any special restrictions authorized by this
Act so as to include property fronting on any such highway, street, or
avenue which has not been dedicated or granted or conveyed or assigned
to the District of Columbia, then, at any time within one year from the
date of any such designation, and not thereafter, the owner or owners
thereof, or any person having an interest therein, may recover as
damages just compensation from the District of Columbia for the taking,
if any, of the easements involved in said designation, subject to
deduction for benefits; and said damages and benefits and all benefits
herein mentioned shall be appraised by a commission composed of three
capable and disinterested persons, to be appointed by the supreme court
of the District of Columbia, holding a district court of the United
States for said District, upon application, in writing, made within
said year and not thereafter by such owner or owners or person having
an interest against the District of Columbia; and upon failure of any
such owner or owners or person having said interest to thus present
such claim within said period, said right shall cease and determine.
SECT. 3. That the Commissioners of the District of Columbia be, and
they are hereby, authorized and directed, as soon as practicable
after every recovery of damages as just compensation as in this Act
provided, to institute proceedings in said court to _assess the amount
of said damages, the interest thereon_, and _all costs_ whatsoever
of _the proceeding wherein the said damages have been ascertained
against and upon all property covered by said designation, pro rata
in proportion as said property may be found to be benefited, omitting
from consideration all property found by the court in the proceeding
to recover said damages as just compensation to have been damaged than
more benefited_.
Sections 4-7 inclusive relate to the procedure in assessing benefits.
SECT. 8. That the Commissioners of the District of Columbia are
hereby authorized to appoint an advisory commission to consist of the
inspector of buildings of the District of Columbia, the municipal
architect of said District, two architects to be nominated by the
Washington Chapter of the American Institute of Architects, and a
landscape gardener, the two first named officials to serve without
compensation and the other members of said commission to receive such
compensation as may be fixed, from time to time, by said commissioners.
The duties of said commission shall be to advise said commissioners in
all matters connected with the purposes of this Act, and to perform
such other duties as may be assigned to it by said commissioners.
SECT. 9. That the sum of fifteen thousand dollars, or so much thereof
as may be necessary, is hereby appropriated, one half out of the
revenues of the District of Columbia, and the other half out of any
moneys in the United States Treasury not otherwise appropriated, to
carry out the provisions of this Act.
SECT. 10. That it shall be the duty of all owners of, and persons and
corporations interested in, any property fronting upon any highway,
street, avenue, or part or parts thereof, designated or made subject
to any special restriction, or on which any easement or right is taken
or imposed by virtue of this Act, to comply, in every case, with such
designation and restriction, and in event any such owner, person,
or corporation, after notice from the Commissioners of the District
of Columbia so to do, shall fail, neglect, or refuse to comply as
aforesaid, the said commissioners are hereby authorized and empowered,
in the name of the District of Columbia, by proceedings in equity in
the supreme court of the District of Columbia, to obtain, without
giving any bond or security whatsoever in such case at any time or
in any court, an injunction or other proper process, mandatory or
otherwise, to compel such compliance; and in the enforcement of such
process the court shall have those powers ordinarily exercised by it
in compelling obedience to its writs of injunction or mandamus; and
the issuance of any notice as aforesaid by said commissioners shall
be prima facie evidence of the right of the District of Columbia to a
preliminary injunction on the filing of any bill, petition, or other
proceeding; and the said court shall give precedence to every such case
and shall adjudge and decide the same within thirty days after said
case shall have been submitted; and the opinion of said court in every
such case shall be rendered in writing and shall be filed in such case
as a part of the record thereof.
B. BUILDING HEIGHTS
1
ACTS OF MASSACHUSETTS, 1898. (Chap. 452)
AN ACT relative to the height of buildings on and near Copley Square
in the city of Boston.
Section 1. Any building now being built or hereafter to be built,
rebuilt, or altered in the city of Boston upon any land abutting on
St. James Avenue between Clarendon Street and Dartmouth Street, or
upon land at the corner of Dartmouth Street and Huntington Avenue, now
occupied by the Pierce Building, so called, or upon land abutting on
Dartmouth Street now occupied by the Boston Public Library building,
or upon land at the corner of Dartmouth Street and Boylston Street now
occupied by the New Old South Church building, may be completed, built,
rebuilt, or altered to the height of ninety feet and no more; and upon
any land or lands abutting on Boylston Street between Dartmouth Street
and Clarendon Street may be completed, built, rebuilt, or altered to
the height of one hundred feet and no more; provided, however, that
there may be erected on any such building above the limits hereinbefore
prescribed, such steeples, towers, domes, sculptured ornaments, and
chimneys as the board of park commissioners of said city may approve.
_Section 2_ repeals St. 1896, c. 313, and St. 1897, c. 379, so far as
they limit the height of buildings erected along the line of streets,
parkways, or boulevards bordering on public parks. _Section 3_ provides
for the payment of damages to any person owning or having an interest
in an uncompleted building begun before the fourteenth day of January,
1898, which is affected by the act, and _Section 4_ provides for
compensation to all persons sustaining damages to their property by
reason of the limitation of the height of buildings prescribed by the
act.
2
ATTORNEY GENERAL _vs._ HENRY B. WILLIAMS et als. 174 Mass. 476. 1899.
Information in equity by the attorney general to restrain the erection
and maintenance of a building on Copley Square in Boston above the
height of ninety feet prescribed by statute 1898, c. 452, entitled “An
act relative to the height of buildings on and near Copley Square in
the city of Boston.”
_Knowlton_, J. ... The first question raised by the report is whether
the statute is constitutional. The streets mentioned in the statute
are adjacent to Copley Square. On the case as now presented we must
assume that Copley Square, in the language of the information, “is an
open square and a public park intended for the use, benefit and health
of the public, and is surrounded by buildings devoted to religious,
charitable, and educational purposes, some of which contain books,
manuscripts and works of art of great value, many of which are in their
nature irreplaceable.”
... It adds to the public park rights in light and air and in the view
over adjacent land above the line to which buildings may be erected.
These rights are in the nature of an easement created by the statute
and annexed to the park. Ample provision is made for compensation to
the owners of the servient estates. In all respects the statute is in
accordance with the laws regulating the taking of property by right
of eminent domain, if the Legislature properly could determine that
the preservation or improvement of the park in this particular was for
a public use. The uses which should be deemed public in reference to
the right of the Legislature to compel an individual to part with his
property for a compensation, and to authorize or direct taxation to
pay for it, are being enlarged and extended with the progress of the
people in education and refinement. Many things which a century ago
were luxuries or were altogether unknown, have now become necessaries.
It is only within a few years that lands have been taken in this
country for public parks. Now the right to take land for this purpose
is generally recognized and frequently exercised.... It hardly would
be contended that the same reasons which justify the taking of land
for a public park do not also justify the expenditure of money to make
the park attractive and educational to those whose tastes are being
formed and whose love of beauty is being cultivated.... It is argued
by the defendants that the Legislature, in passing this statute, was
seeking to preserve the architectural symmetry of Copley Square.
If this is a fact, and if the statute is merely for the benefit of
individual property owners, the purpose does not justify the taking of
a right in land against the will of the owner. But if the Legislature,
for the benefit of the public, was seeking to promote the beauty and
attractiveness of a public park in the capital of the Commonwealth and
to prevent unreasonable encroachments upon the light and air which
it had previously received, we cannot say that the law-making power
might not determine that this was a matter of such public interest as
to call for an expenditure of public money, and to justify the taking
of private property. While such a determination should not be made
without careful consideration, and while the governing tendency towards
an enlargement of the field of public expenditure should be jealously
watched and carefully held in check, a determination of this kind once
made by the Legislature cannot be lightly set aside.
3
ACTS OF MASSACHUSETTS, 1904. Chap. 333.
AN ACT relative to the height of buildings in the city of Boston
Section 1. The city of Boston shall be divided into districts of two
classes, to be designated districts A and B. The boundaries of the
said districts, established as hereinafter provided, shall continue
for a period of fifteen years, and shall be determined in such manner
that those parts of the city in which all or the greater part of the
buildings situate therein are at the time of such determination used
for business or commercial purposes shall be included in the district
or districts designated A, and those parts of the city in which all or
the greater part of the buildings situate therein are at the said time
used for residential purposes or for other purposes not business or
commercial shall be in the district or districts designated B.
Section 2. Upon the passage of this act the mayor of the city shall
appoint a commission of three members, to be called “Commission on
Height of Buildings in the City of Boston.” The commission shall
immediately upon its appointment give notice and public hearings,
and shall make an order establishing the boundaries of the districts
aforesaid, and, within one month after its appointment, shall cause the
same to be recorded in the registry of deeds for the county of Suffolk.
The boundaries so established shall continue for a period of fifteen
years from the date of the said recording. Any person who is aggrieved
by the said order may, within thirty days after the recording thereof,
appeal to the commission for a revision; and the commission may, within
six months after its appointment, revise such order, and the revision
shall be recorded in the registry of deeds for the county of Suffolk,
and shall date back to the original date of recording. The members of
the commission shall serve until the districts have been established
as aforesaid; and any vacancy in the commission caused by resignation,
death or inability to act shall be filled by the mayor, on written
application by the remaining members of the commission or of ten
inhabitants of the city. The members of the commission shall receive
such compensation as the mayor shall determine.
Section 3. In the city of Boston no building shall be erected to a
height of more than one hundred and twenty-five feet above the grade
of the street in any district designated A, and no building shall be
erected to a height of more than eighty feet above the grade of the
street in any district designated B. These restrictions shall not
apply to grain or coal elevators or sugar refineries in any district
designated A, nor to steeples, domes, towers or cupolas erected for
strictly ornamental purposes, of fireproof material, on buildings of
the above height or less in any district.
The supreme judicial court and the superior court shall each have
jurisdiction in equity to enforce the provisions of this act, and to
restrain the violation thereof.
Section 4. This act shall take effect upon its passage.
Approved May 13, 1904.
4
ACTS OF MASSACHUSETTS, 1905. Chap. 363.
AN ACT relative to the height of buildings in the city of Boston
Section 1. Within thirty days after the passage of this act the mayor
of the city of Boston shall appoint a commission of three members to
determine, in accordance with the conditions hereinafter provided, the
height of buildings within the district designated by the commission on
height of buildings in the city of Boston as district B, in accordance
with chapter three hundred and thirty-three of the acts of the year
nineteen hundred and four.
Section 2. Said commission shall immediately upon its appointment give
notice and public hearings, and shall make an order establishing the
boundaries of or otherwise pointing out such parts, if any, of said
district B as it may designate in which buildings may be erected to
a height exceeding eighty feet but not exceeding one hundred feet,
and the height between eighty feet and one hundred feet to which
buildings may so be erected, and the conditions under which buildings
may be erected to said height, except that such order may provide for
the erection of buildings as aforesaid to a height not exceeding one
hundred and twenty-five feet in that portion of said district B which
lies within fifty feet from the boundary line separating said district
B from the district designated by the commission on height of buildings
in the city of Boston as district A in accordance with said chapter
three hundred and thirty-three, provided said boundary line divides
the premises affected by such order from other adjoining premises both
owned by the same person or persons, and within sixty days after its
appointment shall cause the same to be recorded in the registry of
deeds for the county of Suffolk. Any person who is aggrieved by such
order may, within sixty days after the recording thereof, appeal to
the commission for a revision; and the commission may, previous to the
first day of January in the year nineteen hundred and six, revise such
order, and the revision shall be recorded in the registry of deeds
for the county of Suffolk and shall date back to the original date of
recording. The boundaries so established shall continue for a period of
fifteen years from the date of the recording of the order made by the
commission on height of buildings in the city of Boston under chapter
three hundred and thirty-three of the acts of the year nineteen hundred
and four. The members of the commission shall receive such compensation
as the mayor shall determine.
Section 3. Within such parts of district B as may be designated by the
commission as aforesaid (which may, except as hereinafter provided,
include any parts of said district B affected by prior acts limiting
the height of buildings) buildings may be erected to the height
fixed by the commission as aforesaid, exceeding eighty feet but not
exceeding one hundred feet, or one hundred and twenty-five feet as
hereinbefore provided, and subject to such conditions as may be fixed
as aforesaid by the commission; but within the following described
territory, to wit:—Beginning at the corner of Beacon street and
Hancock avenue, thence continuing westerly on Beacon street to Joy
street, thence continuing northerly on Joy street to Myrtle street,
thence continuing easterly on Myrtle street to Hancock street, thence
continuing southerly on Hancock street and Hancock avenue to the point
of beginning, no building shall be erected to a height greater than
seventy feet, measured on its principal front, and no building shall be
erected on a parkway, boulevard or public way on which a building line
has been established by the board of park commissioners or by the board
of street commissioners, acting under any general or special statute,
to a greater height than that allowed by the order of said boards; and
no building upon land any owner of which has received and retained
compensation in damages for any limitation of height or who retains any
claim for such damages shall be erected to a height greater than that
fixed by the limitation for which such damages were received or claimed.
Section 4. No limitations of the height of buildings in the city of
Boston shall apply to churches, steeples, towers, domes, cupolas,
belfries or statuary not used for purposes of habitation, nor to
chimneys, gas holders, coal or grain elevators, open balustrades,
skylights, ventilators, flagstaffs, railings, weather vanes, soil
pipes, steam exhausts, signs, roof houses not exceeding twelve feet
square and twelve feet high, nor to other similar constructions such as
are usually erected above the roof line of buildings.
Section 5. This act shall take effect upon its passage.
Approved May 8, 1905.
5
WELCH _vs._ SWASEY. 193 Mass. 364
This was a petition for a writ of mandamus addressed to members of
the board of appeal from the building commissioner of the city of
Boston, ordering the respondents to direct the building commissioner
to grant to the petitioners a permit to erect a building to the height
of 120 feet, 6 inches. The permit had been refused by the building
commissioner on the ground that the proposed structure would exceed the
height limit provided by acts 1904, chapter 333, and acts 1905, chapter
383. The petitioners appealed on the ground that the statutes were
unconstitutional and void.
The commission appointed by the mayor under chapter 383 of the acts
of 1905, made the following orders: (1) In district B buildings may
be erected on streets exceeding 64 feet in width to a height equal to
one and a quarter times the width of the street on which the building
stands, and if situated on more than one street the widest street
should be taken, and the height of the building is to be made from
the mean grade of the curbs of all streets upon which the building is
situated, and not exceeding one hundred feet in any of them. (2) If
the street is of uneven width, its width will be considered as the
average width opposite the building to be erected. (3) The width of
a street shall be held to include the width of any space on the same
side of the street upon which a building stands, upon or within which
space no building can be lawfully erected by virtue of any building
line established by the board of street commissioners, or the board
of park commissioners, acting under general or special laws. (4) All
streets or portions of streets upon which buildings may be erected on
one side only shall be considered as of a width of 80 feet as to that
portion upon which building may be erected on one side only. (5) In the
case of irregular or triangular open spaces formed by the intersection
of streets, the width of the street shall be taken as the width of
the widest street entering said space at the point of entrance. (6)
No building shall be erected on a parkway, boulevard or public way on
which a building line has been established by either of said boards
acting under general or special laws to a height greater than allowed
by said general or special law nor otherwise in violation of section 3
of said chapter 383, acts of 1905. (7) No building shall be erected to
a height greater than eighty feet unless its width on each and every
public street on which it stands will be at least one half its height.
(8) Nothing in the order shall be construed as affecting any condition
or restriction imposed by deed, agreement or by operation of law on any
property in said district B.
The said commission further provides that buildings may be erected
to a height not exceeding 120 feet in that portion of district B as
established by the commission on the height of buildings in its order
dated Dec. 3, 1904, which lies 50 feet westerly from the boundary line
running from Columbus Av. to the center of Boylston St. separating
district B from district A provided that said portion of district B is
owned by same persons who own adjoining premises in district A.
KNOWLTON, C. J.: The principal question presented by this case is
whether St. 1904, p. 283, c. 333, and St. 1905, p. 309, c. 383, and
the orders of the commissioners appointed under them, relative to the
height of buildings in Boston, are constitutional. A jurisdictional
question, if the petitioner is entitled to relief, is whether a remedy
can be given him by a writ of mandamus.
The principal question may be subdivided as follows: First, can the
Legislature, in the exercise of the police power, limit the height of
buildings in cities so that none can be erected above a prescribed
number of feet; second, can it classify parts of a city so that in
some parts one height is prescribed and in others a different height;
third, if so, can it delegate to a commission the determination of the
boundaries of these different parts, so as to conform to the general
provisions of the statute; fourth, can it delegate to a commission the
making of rules and regulations such as to permit different heights in
different places, according to the different conditions in different
parts of one of the general classes of territory, made in the original
statute; fifth, if it can, are the rules and regulations made by
the commissioners within the statute, and within the constitutional
authority of the Legislature and its agents?
In the exercise of the police power the Legislature may regulate and
limit personal rights and rights of property in the interest of the
public health, public morals and public safety. Com. _vs._ Pear,
153 Mass. 242, 63 N. E. 719; Com. _vs._ Strauss, 191 Mass. 545, 78
N. E. 136; California Reduction Co. _vs._ Sanitary Works, 199 U. S.
306-318, 26 Sup. Ct. 100, 50 L. Ed. 204. With considerable strictness
of definition, the general welfare may be made a ground, with others,
for interference with rights of property, in the exercise of the police
power. Com. _vs._ Strauss, _ubi supra_.
The erection of very high buildings in cities, especially upon narrow
streets, may be carried so far as materially to exclude sunshine, light
and air, and thus to affect the public health. It may also increase
the danger to persons and property from fire, and be a subject for
legislation on that ground. These are proper subjects for consideration
in determining whether in a given case, rights of property in the use
of land should be interfered with for the public good.... In People
_vs._ D’Oench, 111 N. Y. 359, 18 N. E. 562, a statute limiting the
height of dwelling houses to be erected in the city of New York, was
treated as unquestionably constitutional. See 1 Abbott, Mun. Corp. 237,
2 Tiedeman on State and Federal Control, 754....
... It is for the Legislature to determine whether the public health or
public safety requires such a limitation of the rights of land owners
in a given case. Upon a determination in the affirmative, they may
legislate accordingly.
The next question is whether the General Court may establish different
heights for different neighborhoods, according to their conditions and
the uses to which the property in them is put. The statute should be
adapted to the accomplishment of the purposes in which it finds its
constitutional justification. It should be reasonable, not only in
reference to the interests of the public, but also in reference to the
rights of land owners. If these rights and interests are in conflict in
any degree, the opposing considerations should be balanced against each
other, and each should be made to yield reasonably to those upon the
other side. The value of land and the demand for space, in those parts
of Boston where the greater part of the buildings are used for purposes
of business or commerce, is such as to call for buildings of greater
height than are needed in those parts of the city where the greater
part of the buildings are used for residential purposes. It was,
therefore, reasonable to provide in the statute that buildings might
be erected to a greater height in the former parts of the city than in
the latter, even if some of the streets in the former are narrower than
those in the latter.
The general subject is one that calls for a careful consideration of
conditions existing in different places. In many cities there would
be no danger of the erection of high buildings in such locations and
of such a number as to affect materially the public health or safety,
and no statutory restrictions are necessary. Such restrictions in this
country are of very recent origin, and they are still uncommon. Unless
they place the limited height at an extreme point, beyond which hardly
any one would ever wish to go, they should be imposed only in reference
to the uses for which the real estate probably will be needed, and the
manner in which the land is laid out, and the nature of the approaches
to it.
It was decided in Com. _vs._ Boston Advertising Company, 188 Mass. 348,
74 N. E. 601, 69 L. R. A. 817, 103 Am. St. Rep. 494, that a statute
of this kind cannot constitutionally be passed for a mere esthetic
object. It was said in Attorney General _vs._ Williams, 174 Mass.
476-480, 55 N. E. 77, that the statute then before the court, enacted
under the right of eminent domain, with compensation for landowners,
would have been unconstitutional if it had been passed “to preserve the
architectural symmetry of Copley Square,” or “merely for the benefit
of individual landowners.” The inhabitants of a city or town cannot be
compelled to give up rights in property, or to pay taxes, for purely
æsthetic objects; but if the primary and substantive purpose of the
legislation is such as justifies the act, considerations of taste and
beauty may enter in, as auxiliary. We are of opinion that the provision
of St. 1904, p. 283, c. 333, for dividing parts of the city into two
classes, in each of which there is a prescribed limit for the height of
buildings, was within the power of the Legislature, and in accordance
with the constitutional principle applicable to the enactment.
The delegation to a commission of the determination of the boundaries
of these parts of the two classes was within the constitutional power
of the General Court. The work of the commissioners under the first
act was not legislation, but the ascertainment of facts, and the
application of the statute to them for purposes of administration. Such
subsidiary work by a commission is justified in many cases.
* * * * *
The delegation to a commission of the power to fix different heights in
different places in the parts included in class B, under St. 1905, p.
309, c. 363, goes further, and allows the commissioners to make rules
and regulations which are in the nature of subsidiary legislation. This
is within the principle referred to in Brodbine _vs._ Revere, _ubi
supra_, and in some of the other cases above cited. It is that under
our system in Massachusetts, matters of local self-government might
always be intrusted to the inhabitants of towns. On the establishment
of cities this power is exercised by the city council, or by some
board or commission representing the inhabitants. Even in towns such
powers have long been exercised by local boards, for example,—by
the board of health. Originally such representatives of the local
authority were elected by the people; but for many years local boards,
appointed by the governor or other executive authority, have sometimes
been entrusted with the exercise of this legislative authority. It
is true that they are further from the people than the members of
a city council, for whom the people vote, but in a true sense they
represent the inhabitants in matters of this kind. Our decisions
cover this point also. Com. _vs._ Plaisted and Brodbine _vs._ Revere,
_ubi supra_. It does not follow that all rules and regulations made
under such a delegation of authority would be constitutional, merely
because the original statute is unobjectionable. Such rules may be
tested by the courts to see whether they are reasonably directed to the
accomplishment of the purpose on which the constitutional authority
rests, and whether they have a real, substantial relation to the public
objects which the government can accomplish. A statute, ordinance or
regulation will not be held void merely because the judges differ from
the legislators as to the expediency of its provisions. But if it is
arbitrary and unreasonable, so as unnecessarily to be subversive of
rights of property, it will be set aside by the courts....
We do not see that the action of the commissioners, under St. 1905,
was beyond their power under the Constitution. It was seemingly in
accordance with the general purpose of the Legislature, and was
directed to considerations which they deemed proper in adjusting the
rights and interests of property owners and the public. The question is
not whether the court deems all the provisions wise; but whether they
appear to be outside of the constitutional power of the commission. In
prescribing heights in the district, the commissioners might make the
width of the streets on which a building was to be erected one factor
to be considered. Their action in this particular relates wholly to
buildings in class B, which includes only the residential parts of the
city.
We cannot say that the prohibition of the erection of a building of a
greater height than 80 feet in class B, unless its width “on each and
every public street on which it stands will be at least one-half its
height,” was entirely for æsthetic reasons. We conceive that the safety
of adjoining buildings, in view of the risk of the falling of walls
after a fire, may have entered into the purpose of the commissioners.
We are of opinion that the statutes and the orders of the commissioners
are constitutional.
We think that the court has jurisdiction to dispose of the case in the
merits, under this petition for a writ of mandamus. The wrong alleged
is that the building commissioner, and afterwards the board of appeal,
refused to give the petitioner a permit to erect a building. It is
conceded that he was not entitled to a permit if the statutes and
orders referred to are constitutional. The petitioner alleges that the
board of appeal refused to do their duty, and that his only effectual
remedy is by a writ of mandamus, ordering them to grant a permit. The
case comes within the general rule giving jurisdiction to issue such
writs. Farmington River Water Power _vs_. County Commissioners, 112
Mass. 206-212; Carpenter _vs._ County Commissioners, 21 Pick. 258-259;
Attorney General _vs._ Boston, 123 Mass. 460. See Locke _vs._ Selectmen
of Lexington, 122 Mass. 290; Attorney General _vs._ Northampton, 143
Mass. 589, 10 N. E. 450.
The building commissioner and the board of appeals are not judicial
officers. St. 1892, p. 471, c. 419; St. 1894, p. 494, c. 443. The fact
that a refusal to act is founded on a mistake of law does not preclude
a remedy by a writ of mandamus. In cases where the duty to perform an
act depends solely on the question whether a statute or ordinance is
constitutional and valid, the question may sometimes be determined on
a petition for a writ of mandamus. Attorney General _vs._ Boston, 123
Mass. 450; Warren _vs._ Charlestown, 2 Gray, 84; Larcom _vs._ Olin, 160
Mass. 102-110, 35 N. E. 113.
Petition dismissed.
6
WELCH, TRUSTEE, _vs._ SWASEY, et al. 29 U. S. Supreme Court Reporter.
567, Oct., 1908
In error to the Supreme Judicial Court of the State of Massachusetts to
review a judgment denying a mandamus to compel the board of appeal from
the building commissioner of the city of Boston to issue a building
permit. Affirmed.
Statement by Mr. Justice Peckham:
The plaintiff in error duly applied to the justices of the supreme
judicial court of the state of Massachusetts for a mandamus against
the defendants, who constitute a board of appeal from the building
commissioner of the city of Boston, to compel the defendants to issue
a permit to him to build on his lot on the corner of Arlington and
Marlborough streets, in that city. The application was referred by the
justice presiding to the full court, and was by it denied (193 Mass.
364, 118 Am. St. Rep. 523, 79 N. E. 745), and the plaintiff has brought
the case here by writ of error.
The action of defendants in refusing the permit was based on the
statutes of Massachusetts, chap. 333 of the Acts of 1904, and chap. 383
of the Acts of 1905. The reason for the refusal to grant the building
permit was because the building site for the proposed building was
situated in one of the districts B, as created under the provisions
of the acts mentioned, in which districts the height of the buildings
is limited to 80, or, in some cases, to 100 feet, while the height of
buildings in districts A is limited to 125 feet. The height of the
building which plaintiff in error proposed to build and for which he
asked the building permit was stated by him in his application therefor
to be 124 feet, 6 inches.
The designation of what parts in districts B and upon what conditions a
building could be therein erected more than 80 while not more than 100
feet high was to be made by a commission, as provided for in the act of
1905, and the commission duly carried out the provisions of the act in
that respect. The sole reason for refusing the permit was on account of
the proposed height of the building being greater than the law allowed.
The plaintiff in error contended that the defendants were not justified
in their refusal to grant the permit, because the statutes upon
which their refusal was based were unconstitutional and void; but he
contended that, if they were valid, the defendants were justified in
their refusal.
The court, while deciding that mandamus was a proper remedy, held
that the statutes and the reports of the commissions thereunder were
constitutional.
* * * * *
Mr. Justice Peckham delivered the opinion of the court:
The ground of objection of plaintiff in error to this legislation
is that the statutes unduly and unreasonably infringe upon his
constitutional rights (a) as to taking of property without
compensation; (b) as to denial of equal protection of the laws.
Plaintiff in error refers to the existence of a general law in
Massachusetts, applicable to every city therein, limiting the height of
all buildings to 125 feet above the grade of the street (Acts of 1891,
Chap. 355), and states that he does not attack the validity of that
act in any respect, but concedes that it is constitutional and valid.
See also on same subject. Acts of 1892, Chap. 419, Par. 25, making
such limitation as to the city of Boston. His objection is directed to
the particular statutes because they provide for a much lower limit in
certain parts of the city of Boston, to be designated by a commission,
and because a general restriction of height as low as 80 or 100 feet
over any substantial portion of the city is, as he contends, an
unreasonable infringement upon his rights of property; also that the
application of those limits to districts B, which comprise the greater
part of the city of Boston, leaving the general 125-feet limit in force
in those portions of the city which the commission should designate
(being the commercial districts), is an unreasonable and arbitrary
denial of equal rights to the plaintiff in error and others in like
situation.
Stating his objections more in detail, the plaintiff in error contends
that the purposes of the acts are not such as justify the exercise of
what is termed the police power, because, in fact, their real purpose
was of an esthetic nature, designed purely to preserve architectural
symmetry and regular sky lines, and that such power cannot be exercised
for such a purpose. It is further objected that the infringement upon
property rights by these acts is unreasonable and disproportioned to
any public necessity, and also that the distinction between 125 feet
for the height of buildings in the commercial districts described
in the acts, and 80 to 100 feet in certain other or so-called
residential districts, is wholly unjustifiable and arbitrary, having
no well-founded reason for such distinction, and is without the least
reference to the public safety, as from fire, and inefficient as means
to any appropriate end to be attained by such laws.
In relation to these objections the counsel for the plaintiff in error,
in presenting his case at bar, made a very clear and able argument.
Under the concession of counsel, that the law limiting the height of
building to 125 feet is valid, we have to deal only with the question
of the validity of the provisions stated in these statutes and in the
conditions provided for by the commissions, limiting the height in
districts B between 80 and 100 feet.
We do not understand that the plaintiff in error makes the objection
of illegality arising from an alleged delegation of legislative power
to the commissions provided for by the statutes. At all events, it
does not raise a Federal question. The state court holds that kind of
legislation to be valid under the state Constitution, and this court
will follow its determination upon that question.
We come, then, to an examination of the question whether these statutes
with reference to limitations on height between 80 and 100 feet,
and in no case greater than 100 feet, are valid. There is here a
discrimination of classification between sections of the city, one of
which, the business or commercial part, has a limitation of 125 feet,
and the other, used for residential purposes, has a permitted height of
buildings from 80 to 100 feet.
The statutes have been passed under the exercise of so-called police
power, and they must have some fair tendency to accomplish, or aid
in the accomplishment of, some purpose for which the legislature
may use the power. If the statutes are not of that kind, then their
passage cannot be justified under that power. These principles have
been so frequently decided as not to require the citation of many
authorities. If the means employed, pursuant to the statute, have no
real, substantial relation to a public object which government can
accomplish, if the statutes are arbitrary and unreasonable, and beyond
the necessities of the case, the courts will declare their invalidity.
In passing upon questions of this character as to the validity and
reasonableness of a discrimination or classification in relation to
limitations as to height of buildings in a large city, the matter of
locality assumes an important aspect. The particular circumstances
prevailing at the place or in the state where the law is to become
operative,—whether the statute is really adapted, regard being had
to all the different and material facts, to bring about the results
desired from its passage; whether it is well calculated to promote
the general and public welfare,—are all matters which the state court
is familiar with; but a like familiarity cannot be ascribed to this
court, assuming judicial notice may be taken of what is or ought to be
generally known. For such reason this court, in cases of this kind,
feels the greatest reluctance in interfering with the well-considered
judgments of the courts of a state whose people are to be affected
by the operation of the law. The highest court of the state in which
statutes of the kind under consideration are passed is more familiar
with the particular causes which led to their passage (although they
may be of a public nature) and with the general situation surrounding
the subject-matter of the legislation than this court can possibly be.
We do not, of course, intend to say that, under such circumstances,
the judgment of the state court upon the question will be regarded
as conclusive, but simply that it is entitled to the very greatest
respect, and will only be interfered with, in cases of this kind,
where the decision is, in our judgment, plainly wrong. In this case
the supreme judicial court of the state holds the legislation valid,
and that there is a fair reason for the discrimination between the
height of buildings in the residential as compared with the commercial
districts. That court has also held that regulations in regard to
the height of buildings, and in regard to their mode of construction
in cities, made by legislative enactments for the safety, comfort,
or convenience of the people, and for the benefit of property owners
generally, are valid. Atty. Gen. _vs._ Williams (Knowlton _vs._
Williams) 174 Mass. 476, 47 L. R. A. 314, 55, N. E. 77. We concur in
that view, assuming, of course, that the height and conditions provided
for can be plainly seen to be not unreasonable or inappropriate.
In relation to the discrimination or classification made between the
commercial and the residential portion of the city, the state court
holds in this case that there is reasonable ground therefor, in the
very great value of the land and the demand for space in those parts of
Boston where a greater number of buildings are used for the purposes of
business or commercially than where the buildings are situated in the
residential portion of the city, and where no such reasons exist for
high buildings. While so deciding, the court cited, with approval. Com.
_vs_. Boston Advertising Co. 188 Mass. 348, 69 L. R. A. 517, 108 Am.
St. Rep. 494, 74 N. E. 601; which holds that the police power cannot
be exercised for a merely esthetic purpose. The court distinguishes
between the two cases, and sustains the present statutes. As to the
condition adopted by the commission for permitting the erection,
in either of the districts B, that is, the residential portion, of
buildings of over 80 feet, but never more than 100, that the width
on each and every public street on which the building stands shall
be at least one half its height, the court refuses to hold that such
condition was entirely for esthetic reasons. The chief justice said:
“We conceive that the safety of adjoining buildings, in view of the
risk of the falling of walls after a fire, may have entered into the
purpose of the commissioners. We are of opinion that the statutes and
the orders of the commissioners are constitutional.”
We are not prepared to hold that this limitation of 80 to 100 feet,
while in fact a discrimination or classification, is so unreasonable
that it deprives the owner of the property of its profitable use
without justification, and that he is therefore entitled under the
Constitution to compensation for such invasion of his rights. The
discrimination thus made is, as we think, reasonable, and is justified
by the police power.
It might well be supposed that taller buildings in the commercial
section of the city might be less dangerous in case of fire than in the
residential portion. This court is not familiar with the actual facts,
but it may be that, in this limited commercial area, the high buildings
are generally of fireproof construction; that the fire engines are more
numerous and much closer together than in the residential portion, and
that an unlimited supply of salt water can be more readily introduced
from the harbor into the pipes, and that few women or children are
found there in the daytime, and very few people sleep there at night.
And there may, in the residential part, be more wooden buildings, the
fire apparatus may be more widely scattered, and so situated that it
would be more difficult to obtain the necessary amount of water, as
the residence quarters are more remote from the water front, and that
many women and children spend the day in that section, and the opinion
is not strained that an undiscovered fire at night might cause great
loss of life in a very high apartment house in that district. These are
matters which, it must be presumed, were known by the legislature, and
whether or not such were the facts was a question, among others, for
the legislature to determine. They are asserted as facts in the brief
of the counsel for the city of Boston. If they are, it would seem that
ample justification is therein found for the passage of the statutes,
and that the plaintiff in error is not entitled to compensation for
the reasonable interference with his property rights by the statutes.
That, in addition to these sufficient facts, considerations of an
esthetic nature also entered into the reasons for their passage, would
not invalidate them. Under these circumstances there is no unreasonable
interference with the rights of property of the plaintiff in error,
nor do the statutes deprive him of the equal protection of the laws.
The reasons contained in the opinion of the state court are, in our
view, sufficient to justify their enactment. The judgment is therefore
affirmed.
7
ABSOLUTE HEIGHT LIMITATIONS
Baltimore, Md. 175 feet.
Boston 125 ft. or 2½ times width of widest
street on which building fronts in
section.
80 ft. in residence section.
Charleston, S. C. 125 ft. or 2½ times width of widest
street, as in Boston.
Chicago 200 ft.
Cleveland 200 ft. or 2½ times width of widest
street, as in Boston.
Erie, Pa. 200 ft. or 2½ times width of widest
street, as in Boston.
Los Angeles 150 ft.
Manchester, N. H. 125 ft.
Newark, N. J. 200 ft.
Portland, Oregon 160 ft.
Scranton, Pa. 125 ft.
Worcester, Mass. 125 ft.
Denver, Colo. 12 stories.
Providence, R. I. 120 ft.
C. “SURVEY LINES”
FURMAN ST. 17 Wendell (N. Y.) 649. 1836
By a law of April 12, 1816, section 18, a survey of the village of
Brooklyn was to be made and the resulting map was to constitute a
permanent plan for laying out the streets of Brooklyn. The act provided
that owners who violated the plan were not to receive damages.
The court, in upholding this provision, found that unless damages were
withheld from owners building in designated lines of streets, section
18 of the act would be nugatory. The legislation clearly intended
that improvements within the street lines should not be paid for. “By
expensive erections an owner otherwise might bring an enormous burden
upon others for opening the street.”
* * * * *
This decision was cited with approval and followed in the case of Re
Dist. of City of Pittsburgh, decided in 1841, 2 W. & S. 320. This
language is found in the opinion: “The mere laying out of streets
cannot be said of itself to be a taking of the property of individuals,
upon which they are laid out, for public use at some future day,
but rather a designation of what may be required for that purpose
thereafter, so that the owners of the property may in due time be
fully apprised of what is anticipated and regulate the subsequent
improvements, which they shall make thereon accordingly.
... Until the actual opening “the owners thereof continue not only to
hold the same interest in them, but likewise to have the right to enjoy
and in the same manner as they did previously.”
In the case of Bush _vs._ McKeesport, City, 166 Pa. 57, the court
upheld the validity of the following clause: “No person shall
hereafter be entitled to recover any damages for any buildings or the
improvements of any kind which shall or may be placed or constructed
upon or within the lines of any located street or alley, after the same
shall have been located or ordered by counsel.”
But the New York court has since come to a different conclusion in the
case of Forster _vs._ Scott, 136 App. Div. 577, and the Massachusetts
court has also found against the constitutionality of such a provision.
In Forster _vs._ Scott, the plaintiff had given a deed to the defendant
warranting against incumbrances. A proposed street was located on the
plaintiff’s land. The court held that this was not an incumbrance
since the act of 1882, chapter 419 was unconstitutional in providing
that “No compensation shall be allowed for any building, erection or
construction which at any time, subsequent to the filing of the maps,
plans, etc., may be built in part or in whole upon or through any
street, avenue, road, public square, or place.”
“Whenever a law deprives the owner of the beneficial use and free
enjoyment of his property, or imposes restraints upon such use and
enjoyment that materially affect its value without legal process or
compensation it deprives him of his property within the meaning of the
constitution.”
EDWARDS _vs._ BRUORTON, 184 Mass. 529
KNOWLTON, C. J.
“This is an action for breach of a covenant in a deed. A public street
called Jersey Street was laid out by the street commissioners of
Boston over a part of the premises under authority of statute 1891,
c. 323, and the existence of this street constitutes a breach of the
covenant in the deed if the statute gave the board authority to lay
it out. It is contended that the statute is unconstitutional ...
because in section 9 it provides that no compensation shall be given
for land taken for a street, if the owner, after the filing of a plan
in accordance with the statute, shall erect any building within the
boundaries of any way and not remove it when required by the street
commissioners.”
* * * * *
“This was intended to prevent any use of property inconsistent with the
plan after the filing of a plan and before the laying out of a way. If
it could have that effect, it might materially interfere with the use
which an owner might desire to make of his estate for many years after
the filing of the plan and before the laying out of a way. The statute
provides no compensation for this interference with private property.
The legislation can not constitutionally so interfere with the use of
property without giving compensation to the owner.”...
“In the act before us, there is no express prohibition of the owner’s
use of his property, but it is declared that if he uses it otherwise
than in accordance with the plans of the street commissioners it may be
taken from him for a way without giving him compensation. This attempt
to except him from the general rule in regard to the taking of property
under the right of eminent domain is unconstitutional and ineffectual.”
The court then finds that the unconstitutional parts of the statute are
not so connected with the rest of the statute as to invalidate it, and
that the street laid out under the provisions of the statute became a
legally located public way, and that its existence constituted a breach
of the covenant in the deed.
D. BILL-BOARDS
Bill-board decisions may be thus classified:
I. Where the ordinance has been held invalid on the ground that its
purpose was the removal of the bill-boards for aesthetic reasons and
where the character of the bill-boards as nuisances was not raised, the
decisions are uniformly against the reasonableness of the ordinance.
People _vs._ Green, 85 N. Y. App. 400.—The ordinance prohibited the
posting of any advertisement whatever upon fences enclosing private
property fronting on or adjacent to any public park. There was no claim
that the posting of advertisements in any such places was an injury to
the morals, health or safety of the city. The ruling was merely against
the extension of the police power for aesthetic purposes.
Commonwealth _vs._ Boston Advertising Co. 188 Mass. 348.—The ordinance
prohibited all signs so near a parkway as to be visible to the naked
eye and was clearly intended to accomplish aesthetic purposes.
Varney _vs._ Williams, 100 Pac. Rep. 867.—The ordinance absolutely
prohibited maintenance and erection of all bill-boards for advertising
purposes. There was no attempt to restrict its operation to bill-boards
that were insecure or otherwise dangerous or to advertising that might
be indecent. “Bearing in mind that the ordinance does not purport to
have any relation to the protection of passers by from injury by reason
of unsafe structures, to the diminution of hazard of fire, or to the
prevention of immoral displays we find that the one ground upon which
the town council may be thought to have acted is that the appearance of
bill-boards is or may be offensive to the sight of persons of refined
tastes.” The promotion of aesthetic or artistic consideration has never
been held to justify an exercise of the police power.
II. Where the court considers the ordinance as an attempt to protect
either the health, safety or morals of the community and finds that it
is an unreasonable regulation.
State _vs._ Whitlock, 149 N. C. 542.—The ordinance prohibited the
erection of bill-boards on the lot line. The court found that this was
an invasion of private rights, since such structures might be built
with absolute safety.
Crawford _vs._ City of Topeka, 51 Kas. 761.—The court, in holding
the ordinance unreasonable, said: “In what way can the erection of
a safe structure for advertising purposes near the front of a lot
endanger public safety any more than a like structure for some other
lawful purpose. Perhaps regulations might be made with reference to
the manner of construction so as to insure safety but the absolute
prohibition would be an unwarranted invasion of private rights.” The
unreasonableness of the ordinance is seen when it is considered that
the posting of a harmless paper upon a structure changes it from a
lawful to an unlawful one. To the same effect are the following cases:
Bryan _vs._ City of Chester, 212 Pa. St. 259; Bill Posting Sign Co.,
_vs._ Atlantic City, 71 N. J. Law, 72; Chicago _vs._ Gunning System,
214 Ill. 628; Passaic _vs._ Patterson Bill Posting Co., 72 N. J. Law,
285.
II. PROCEDURE IN ACQUIRING LAND BY CONDEMNATION AND IN ASSESSING
BENEFITS
1
AMENDMENT TO CONSTITUTION OF NEW YORK, Art. 1, Sec. 7. Adopted Nov. 4,
1913
When private property shall be taken for any public use, the
compensation to be made therefor, when such compensation is not made by
the State, shall be ascertained by a jury, _by the supreme court, with
or without a jury but not with a referee_, or by not less than three
commissioners, appointed by a court of record, as shall be prescribed
by law. Private roads may be opened in the manner to be prescribed by
law; but in every case the necessity of the road and the amount of all
damage to be sustained by the opening thereof shall be first determined
by a jury of free-holders, and such amount, together with the expenses
of the proceeding, shall be paid by the person to be benefited. General
laws may be passed permitting the owners or occupants of agricultural
lands to construct and maintain for the drainage thereof, necessary
drains, ditches and dykes upon the lands of others, under proper
restrictions and with just compensation, but no special laws shall be
enacted for such purposes.
_The legislature may authorize cities to take more land and property
than is needed for actual construction in the laying out, widening,
extending, or relocating parks, public places, highways or streets,
provided, however, that the additional land and property so authorised
to be taken shall be no more than sufficient to form suitable building
sites abutting on such park, public place, highway or street. After
so much of the land and property has been appropriated for such park,
public place, highway or street as is needed therefor, the remainder
may be sold or leased._
Words in italics are new.
2
ACTS OF NEW YORK, 1911. Chap. 679
AN ACT to amend the Greater New York charter, in relation to the
payment of the cost of certain public improvements.
_The People of the State of New York, represented in Senate and
Assembly, do enact as follows_:
Section 1. Chapter six of the Greater New York charter, as re-enacted
by chapter four hundred and sixty-six of the laws of nineteen hundred
and one, is hereby amended by adding thereto a new section, to be known
as section two hundred and forty-seven, to read as follows:
§ 247. Before a public improvement of any kind (except an improvement
to be made pursuant to the rapid transit act) involving the acquisition
or the physical improvement of property for streets, public places,
parks, bridges, approaches to bridges, for the disposal and treatment
of sewage or the improvement of the waterfront, or involving both such
acquisition and physical improvement of property, which acquisition or
physical improvement, or both, is estimated to cost the sum of fifty
thousand dollars or more, shall be authorized, the board of estimate
and apportionment may determine in what manner and in what shares
and proportions the cost and expense of the acquisition or physical
improvement, or both, shall be paid by the city of New York, by one or
more boroughs thereof, by a part or portion of one or more boroughs
thereof, or by the respective owners, lessees, parties and persons
respectively entitled unto or interested in the lands, tenements,
hereditaments and premises not required for the said improvement, which
said board shall deem peculiarly benefited thereby.
If said board shall determine that the cost of such acquisition or
physical improvement, or both, shall be apportioned between or among
the city of New York, one or more boroughs thereof, a part or portion
of one or more boroughs thereof, or the respective owners, lessees,
parties and persons respectively entitled unto or interested in the
lands, tenements, hereditaments and premises not required for the said
improvement, which said board shall deem peculiarly benefited thereby,
the said board may also determine in what manner and in what proportion
the cost and expense of such acquisition or physical improvement, or
both, shall be borne either by the city of New York, by one or more
boroughs thereof, by a part or portion of one or more boroughs thereof,
or by the respective owners, lessees, parties and persons respectively
entitled unto or interested in the lands, tenements, hereditaments and
premises not required for the said improvement, which said board shall
deem peculiarly benefited thereby.
3
KANSAS CITY _vs._ BACON et al. 157 Mo. 450
VALLIANT, J. Appeal from a judgment of the circuit court of Jackson
county assessing benefits against property of the defendants in the
proceedings to establish Penn Valley park in Kansas City.
For the establishing of the park 134 acres of land were condemned and
the total amount assessed as the value thereof to be paid the owners
was $870,759.60, and for the payment of that amount assessments as
of benefits were made on a large number of lots included in what is
known as West Park district, among which were lots owned severally by
defendants Bacon and Monroe. The assessments on the lots of Mrs. Bacon
aggregated $3,252.49; those on the lots of Monroe, $991.17. The amount
assessed against the city as general benefits was $1.
* * * * *
The point against which the main force of appellants’ argument is
directed is instruction 11 given at the request of the city, and which
is:
“11. By your verdict you shall show a correct description of each piece
or parcel of property taken and the value thereof, and of each piece or
parcel of private property damaged and the amount of injury thereto.
You shall also show by your verdict the amount, if any, assessed
against the city, and shall show the amount of benefits assessed
against each piece or parcel of private property found benefited within
the benefit district.
In estimating the benefits that may accrue to the city and to the
public generally, or to any property in the benefit district by reason
of the proposed improvement, you shall consider only such benefits as
are direct, certain and proximate.”
* * * * *
The law contemplates that a public improvement may bring a benefit to
the property of individuals separate from that which it brings to the
city in general, and that it may bring a benefit to the city in general
separate from that which it brings to the property of the individuals,
and that when it comes to apportioning the cost, the individuals and
the city should each bear the burden in proportion to the respective
benefit, but the benefit in the one case must be as “direct, certain
and proximate” as in the other.
* * * * *
Conceding all that the learned counsel say concerning the difference
between general and special taxation, we do not see how it affects the
question relating to the character of the benefits the city is required
to pay for in a case like this. And if it is lawful for the jury to
estimate the benefit to the city at large with a view to charging a
proper share of the cost of the improvement to the city and thereby
to that extent relieve the burden of the property owners; that is to
say, if that feature of the law which contemplates laying a portion of
the burden on the city at large is not in violation of the fourteenth
amendment to the Constitution of the United States, then there must be
some rule to guide the jury in assessing those benefits, and if it is
not proper to instruct the jury that the only benefits to the city at
large which they are to consider are such “as are direct, certain and
proximate,” then the contrary is true, and they should be instructed to
consider benefits that are indirect, uncertain and remote. We recognize
that the task of assessing benefits either to private property or to
the city at large is a very difficult one, and that the temptation to
the jury to indulge in conjecture is great, but still they ought to be
admonished that the law requires them to use their reason and judgment,
and not their imagination. The provision of the law requiring the
benefits to the city at large to be estimated by the jury should either
be eliminated entirely or else the jury should be instructed as to what
the law means by such benefits, and if it does not mean such “as are
direct, certain and proximate,” it is meaningless.
* * * * *
The specific charge of inequality before the law that these appellants
make is that the city has been relieved of its just proportion of the
cost of the park, and that portion has been laid, together with their
own burden, on these appellants. In their brief they say that the jury
should first have estimated the benefit to the city at large and should
have charged only the balance of the cost as benefits against the
private property, that the assessment of one dollar against the city
was no assessment at all.
If the case was given to the jury under proper instructions, whatever
opinion we may have as to the fact, we can not say as a matter of law
that an assessment of merely nominal benefit was unlawful.
* * * * *
See also Kansas City _vs._ Bacon 147 Mo. 259, in which this language is
found:
“In the absence of misleading instructions or evidence of misconduct a
verdict of one dollar against the city at large is not as a matter of
law ground to disturb a verdict.”
In this case there was an assessment on property holders of $600,000,
and of $1.00 against the city.
And:
Kansas City _vs._ Smart, 128 Mo. 272, where there was an assessment of
$140,000 against the benefit district and $1.00 against the city.
4
PARK LAW OF INDIANAPOLIS. Chap. 231. Acts of Indiana, 1911
AN ACT concerning the “department of public parks” in cities of the
first and second classes, defining its powers and duties, conferring
certain powers upon the common council and mayor of such cities in
relation to said park department, legalizing appointments of boards
of park commissioners in such cities, and acts done by such boards,
repealing conflicting laws, and declaring an emergency.
[S. 378. Approved March 6, 1911.]
SECTION 1. CITIES—FIRST AND SECOND CLASS—DEPARTMENT OF PARKS.