5
ACTS OF MASSACHUSETTS, 1912. Chap. 339
AN ACT to authorize the City of Boston to abate a portion of the
betterment assessments made on account of the laying out and
construction of Columbia Road.
Section 1. The board of street commissioners of the city of Boston
_may_ at any time within two years after the passage of this act abate
such proportion of any assessment for a betterment made on account of
the laying out and construction of Columbia Road from Franklin Park, in
Dorchester, to Marine Park, in South Boston, not exceeding in the case
of lots unimproved at the time of the passage of the order for the said
laying out and construction twenty per cent, and in the case of lots
improved at the time of the passage of said order and lots bordering
on the parts of the said road formerly known as the Strandway and
Dorchesterway thirty-three and one-third per cent, as said board shall
deem just and expedient.
Section 2. Said board may by its certificate authorize the treasurer
of the city to repay the excess of any amount paid on account of said
assessments over the amounts determined as the revised assessments
in accordance with the provisions of this act, and said excess shall
be repaid by the treasurer from the appropriation from which the
improvement was paid for to the person for whom payment was made, or to
his legal representatives.
6
ACTS OF MASSACHUSETTS, 1912. Chap. 537
AN ACT to provide for reducing the betterments charged for the
improvement of Bennington Boulevard in East Boston.
Section 1. The city of Boston is hereby _required_ to reduce the
betterments charged for the improvement of Bennington Boulevard in
the East Boston district of the said city in such manner and to
such extent as shall be agreed upon by the city and the owners of
the lands concerned. In case of their failure to agree, the amount
of the reduction to be made under the provisions of this act shall
be determined by the superior court for the county of Suffolk, if a
petition therefor is filed in the office of the clerk of the court by
the owners of the land within two years after the passage of this act.
The case shall be heard by a single judge, if the parties so agree, or
by a jury if either party requests a trial by jury; and the jury shall
view the premises if either party so requests.
III. EXCESS CONDEMNATION
1
ACTS OF OHIO, 1904. Found in the Annotated Statutes C. 2, P. 755
All municipal corporations shall have power to appropriate, enter upon
and hold, real estate within their corporate limits for the following
purposes: ...
12th: For establishing esplanades, boulevards, parkways, park grounds,
and public reservations in, around and leading to public buildings,
and for the purpose of reselling such land with reservations in the
deeds of such resale as to the future use of said lands so as to
protect public buildings and their environs, and to preserve the view,
appearance, light, air, and usefulness of public grounds occupied by
public buildings and esplanades, and parkways leading thereto.
2
LAWS OF MARYLAND, 1908. Chap. 166
Condemnation of Property. Baltimore
To acquire by purchase or condemnation any land or any interest therein
which it may require for school-houses, engine-houses, court-houses,
markets, streets, bridges and their approaches, the establishment or
enlargement of parks, squares, gardens or other public places, the
establishment of esplanades, boulevards, parkways, park grounds or
public reservations around, adjacent, opposite or in proximity or
leading to any public building or buildings, or which it may require
for any other public or municipal purpose; and also any and all land
and property or interest in land and property adjoining and extending
such distance as may be adjudged necessary from any property in use
or about to be acquired for such esplanade, boulevard, parkway, park
grounds or public reservation, as aforesaid, the use of which said
adjacent property it may be deemed necessary or beneficial to subject
to lawful restrictions or control, in order to better protect or
enhance the usefulness of such public building or buildings or in any
manner to promote the interests of the public therein, or to more
fully effectuate the purpose of the establishment of such esplanade,
boulevard, parkway, park grounds or public reservations, and to sell
thereafter such adjacent lands or property subject to such reservations
or restrictions as to the subsequent use thereof, as may appear
advisable for the protection of such public building or buildings, or
for enhancing the usefulness thereof, or in any manner to promote the
interests of the public therein, or for better insuring the protection
or usefulness of such esplanade, boulevard, parkway, park grounds or
public reservations, or in any manner to better accomplish the purposes
and serve the public interests for which they shall have been or shall
be established. The Mayor and City Council of Baltimore may prescribe
the procedure for condemnation of any land or property situated wholly
within the City of Baltimore, which under the foregoing provisions it
is authorized to condemn, but such procedure as the said Mayor and City
Council of Baltimore may adopt shall include provision for reasonable
notice to the owner or owners, and for appeals to the Baltimore City
Court by any person interested, including the Mayor and City Council
of Baltimore from the decision of any commissioners or other persons
appointed to value such land or property, or interest therein. Nothing
herein shall be construed as depriving the city of any power of
condemnation for any purpose already vested in it. The Mayor and City
Council of Baltimore shall have full power and authority to provide by
ordinance for ascertaining whether any and what amount of benefits will
accrue to the owner or possessor of any ground or improvements within
the City of Baltimore by reason of the establishment or enlargement
of any park, squares, gardens, esplanades, boulevards, parkways,
park grounds, public reservations or other public places, for which
said owner or possessor ought to pay compensation, and to provide by
ordinance for assessing or levying the amount of such benefits on
the property of persons so benefited; provided, that provision is
made therein for reasonable notice to the person or persons against
whom such benefits are to be assessed, and provided that provision be
made for appeals to the Baltimore City Court by any person or persons
interested, including the Mayor and City Council of Baltimore, from the
decision of any board, commissioners, or other persons appointed or
authorized to assess such benefits.
3
VIRGINIA ACTS OF ASSEMBLY, 1906. Chap. 194
Approved March 14, 1906
1. Be it enacted by the general assembly of Virginia, That any city or
town of this Commonwealth may acquire by purchase, gift or condemnation
property adjoining its parks or plats on which its monuments are
located, or other property used for public purposes or in the vicinity
of such parks, plats or property which is used and maintained in such a
manner as to impair the beauty, usefulness or efficiency of such parks,
plats or public property, and may likewise acquire property adjacent to
any street the topography of which, from its proximity thereof, impairs
the convenient use of such street, or renders impracticable, without
extraordinary expense, the improvements of the same, and the city or
town so acquiring any such property may subsequently dispose of the
property so acquired, making limitations as to the use thereof, which
will protect the beauty, usefulness, efficiency or convenience of such
parks, plats or property.
2. This act shall be in force on and after ninety days from the
adjournment of the general assembly of Virginia.
4
ACTS OF PENNSYLVANIA, 8 June, 1907. No. 315
AN ACT authorizing cities of this Commonwealth to purchase, acquire,
take, use, and appropriate private property, for the purposes of
making, enlarging, extending, and maintaining public parks, parkways,
and playgrounds; authorizing the said cities to purchase, acquire,
take, use, and appropriate neighboring private property, within two
hundred feet of the boundary lines of such public parks, parkways
and playgrounds, in order to protect the same by resale, with
restrictions; authorizing the resale of such neighboring property,
with such restrictions in the deeds of resale in regard to the use
thereof as will protect such public park, parkways, and playgrounds;
and providing for the manner of ascertaining, determining, awarding,
and paying compensation and damages in all cases where property is
taken, used, and appropriated for the said purposes.
Section 1. Be it enacted &c., That it shall be lawful for, and the
right is hereby conferred upon, the cities of this Commonwealth to
purchase, acquire, enter upon, take, use, and appropriate private
property, for the purpose of making, enlarging, extending, and
maintaining public parks, parkways, and play grounds within the
corporate limits of such cities, whenever the councils thereof shall,
by ordinance or joint resolution, determine thereon; That where such
private property is outside of the city, it may be annexed thereto
by ordinance of said city: And provided, That where any poorhouse
properties are taken, and such cities shall have made adequate
provisions for thereafter accommodating and supporting the poor of
the districts, wards, and townships within such cities, wherein such
poorhouses are located, nominal damages only shall be allowed for such
taking, and the land shall be held on condition that such city shall
continue to make adequate provisions for the poor of such districts,
wards or townships.
Section 2. It shall be lawful for, and the right is hereby conferred
upon, cities of this Commonwealth to purchase, acquire, enter upon,
take, use, and appropriate neighboring private property, within two
hundred feet of the boundary lines of such property so taken, used,
and appropriated for public parks, parkways, and playgrounds, in
order to protect the same by the resale of such neighboring property
with restrictions, whenever the councils thereof shall, by ordinance
or joint resolution, determine thereon: Provided, That in the said
ordinance or joint resolution, the councils thereof shall declare that
the control of such neighboring property, within two hundred feet of
the boundary lines of such public parks, parkways, or playgrounds,
is reasonably necessary, in order to protect such public parks,
parkways, or playgrounds, their environs, the preservation of the view,
appearance, light, air, health, or usefulness thereof.
Section 3. That it shall be lawful for, and the right is hereby
conferred upon, the cities of this Commonwealth to resell such
neighboring property, with such restrictions in the deeds of resale
in regard to the use thereof as will fully insure the protection of
such public parks, parkways, and playgrounds, their environs, the
preservation of the view, appearance, light, air, health and usefulness
thereof, whenever the councils thereof shall, by ordinance or joint
resolution, determine thereon.
Section 4. The taking, using, and appropriating, by the right of
eminent domain as herein provided, of private property for the purpose
of making, enlarging, extending, and maintaining public parks,
parkways, and playgrounds, and of neighboring property, within two
hundred feet of the boundary lines of such public parks, parkways,
and playgrounds, in order to protect such public parks, parkways, and
playgrounds, their environs, the preservation of the view, appearance,
light, air, health, and usefulness thereof, by reselling such
neighboring property, with such restrictions in the deeds of resale
as will protect said property, so taken for the aforesaid purpose, is
hereby declared to be taking, using, and appropriating of such private
property for public use: Provided, however, That the proceeds arising
from the resale of any such property so taken, shall be deposited in
the treasury of said cities, and be subject to general appropriation by
the councils of said city.
Section 5. In all cases wherein cities of this Commonwealth shall
hereafter take, use, and appropriate private property for the aforesaid
purposes, by ordinance or joint resolution, if the compensation and
damages arising therefrom cannot be agreed upon by the owners thereof
and such cities, such compensation and damages shall be considered,
ascertained, determined, awarded, and paid in the manner provided in
an act entitled “An act providing for the manner of ascertaining,
determining, awarding, and paying compensation and damages in all
cases where municipalities of this Commonwealth may hereafter be
authorized by law to take, use, and appropriate private property for
the purpose of making, enlarging, and maintaining public parks, within
the corporate limits of such municipality,” approved the eighth day of
June, Anno Domini one thousand eight hundred and ninety-five.
Section 6. All acts or parts of acts inconsistent herewith are hereby
repealed.
Approved the eighth day of June, A.D. 1907.
Edwin S. Stuart.
5
PENNSYLVANIA MUTUAL LIFE INS. CO. _vs._ PHILADELPHIA
Pa. Supreme Court. April 15, 1913.
Bill in equity for an injunction to restrain the city of Philadelphia
from appropriating certain land under the provisions of the Act of June
8, 1907 (text is given on page 272), and that the ordinance of Jan. 16,
1913, be declared unconstitutional.
From the record it appeared that by ordinance, councils of Philadelphia
undertook to appropriate certain land within 200 feet of a proposed
parkway.
By ordinance of Jan. 16, 1913, the mayor was authorized to enter into
an agreement on behalf of the city with the Bell Telephone Co., whereby
the land so appropriated should be conveyed to the telephone company
in fee, subject to certain building restrictions. The purpose of the
transaction was admittedly to protect the parkway from the construction
of an unsightly building in the vicinity.
The lower court held the act constitutional but awarded the injunction
on the ground that the ordinance of Jan. 16, 1913, was defective
in that it was not preceded by an ordinance prescribing general
restrictions for the protection of the parkway. Plaintiff and defendant
appealed.
Opinion:
“The view we take of the case requires us to determine the single
question whether the purpose or use for which the city intends to
take the plaintiff’s land is a public use within the constitutional
provision permitting its appropriation under the power of eminent
domain.... Primarily the question is for the legislative department
of the government, but ultimately for the courts.... There is no
constitutional or statutory definition of the words ‘public use,’ and
none of the adjudicated cases has given a definition of the words which
can have universal application. It has been held that the words are
equivalent to public benefit or advantage, while numerous other cases
hold that to constitute a public use the property must be taken into
direct control of the public or of public agencies, or the public must
have the right to use in some way the property appropriated.
We think this (latter) interpretation of the words ‘public use’ is in
accord with their plain and natural signification, and with the weight
of the best considered authorities. It furnishes a certain guide to the
legislature as well as to the courts in appropriating private property
for public use. It enables the state and the owner to determine
directly their respective rights in the latter’s property. If, however,
public benefit, utility or advantage is to be the test of a public
use, then, as suggested by the authorities, the right to condemn the
property will not depend on a fixed standard by which the legislative
and judicial departments of the government are to be guided, but upon
the views of those who at the time are to determine the question. There
will be no limit to the power of either the legislature or the courts
to appropriate private property to public use except their individual
opinions as to what is and what is not for the public advantage and
utility. If such considerations are to prevail, the constitutional
guarantees as to private property will be of small moment....
We think that the sections of the Act of 1907, authorizing the
acquisition of private property outside a public park, parkway and
playground, are not a constitutional exercise of legislative authority.
It will be observed that these sections confer authority to appropriate
and resell with such restrictions as may be prescribed property outside
the line of the parkway, and it is justified by declaring that it is
done to protect the parkway and for the preservation of the view,
appearance, light, air, healthfulness or usefulness thereof. The
protection of the highway is the only ‘public use’ to which the land
is to be applied. The property is not to be taken and held by the
city for any use for which a statute confers on the city the right
to appropriate it.... Prior to this legislation, the state had not
authorized the taking of private property by the exercise of the power
of eminent domain for such purpose. It is a step far in advance of the
policy of the state as heretofore declared in her organic law, and is
a liberal construction of a power which we have uniformly held must be
strictly construed.
* * * * *
Holding as we do that the use to be made of property located outside
a public highway is not a public use for which private property may
be taken by the city against the consent of the owners, the effect of
the act of 1907 is to permit the taking of the property of one citizen
without his consent and vesting the title thereto in another.... One
may be deprived of his home for the benefit of another. In view of its
provisions conferring almost unlimited discretion on cities or their
officials in exercising the powers granted, it is idle to say that the
statute furnished no opportunity to produce such results or to promote
a private purpose....
The court below is directed to enter a decree declaring
unconstitutional so much of the Act of June 8, 1907, as authorizes
cities to take and appropriate neighboring private property within 200
feet of the boundary line of property appropriated for public parks,
parkways and playgrounds, ... and enjoining perpetually the city from
appropriating plaintiff’s property outside of and adjacent to the
parkway.”
6
CONSTITUTION OF MASSACHUSETTS. Article 10, Part 1
Amended, Nov., 1911
The legislature may by special acts for the purpose of laying out,
widening or relocating highways or streets, authorize the taking in fee
by the commonwealth, or by a county, city or town, of more land and
property than are needed for the actual construction of such highway
or street: _provided, however_, that the land and property authorized
to be taken are specified in the act and are no more in extent than
would be sufficient for suitable building lots on both sides of such
highway or street, and after so much of the land or property has been
appropriated for such highway or street as is needed therefor, may
authorize the sale of the remainder for value with or without suitable
restrictions.
7
PROPOSED AMENDMENT TO CONSTITUTION OF NEW YORK. Article I, Section 6
Defeated, 1911
“When private property shall be 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 public use.”[166]
8
AMENDMENT TO CONSTITUTION OF WISCONSIN, Article XI
Adopted Nov. 4, 1912
Section 3a. The state or any of its cities may acquire by gift,
purchase or condemnation lands for establishing, laying out, widening,
enlarging, extending, and maintaining memorial grounds, streets,
squares, parkways, boulevards, parks, playgrounds, sites for public
buildings, and reservations in and about and along and leading to
any or all of the same; and after the establishment, lay-out, and
completion of such improvements, may convey any such real estate thus
acquired and not necessary for such improvements, with reservations
concerning the future use and occupation of such real estate, so as to
protect such public works and improvements, and their environs, and
to preserve the view, appearance, light, air, and usefulness of such
public works.
9
AMENDMENT TO CONSTITUTION OF OHIO, Article XVIII
Adopted 1912
Section 10. A municipality appropriating or otherwise acquiring
property for public use may in furtherance of such public use
appropriate or acquire an excess over that actually to be occupied by
the improvement, and may sell such excess with such restrictions as
shall be appropriate to preserve the improvement made. Bonds may be
issued to supply the funds in whole or in part to pay for the excess
property so appropriated or otherwise acquired, but said bonds shall
be a lien only against the property so acquired for the improvement
and excess, and they shall not be a liability of the municipality
nor be included in any limitation of the bonded indebtedness of such
municipality prescribed by law.
IV. LEGISLATION CREATING PLANNING AGENCIES
A. BOARDS OF SURVEY
ACTS OF MASSACHUSETTS, 1907, Chap. 191
AN ACT to authorize the Establishment of Boards of Survey in Towns.
Section 1. The selectmen of any town which accepts the provisions of
this act shall constitute a board of survey for that town.
Section 2. Any person or corporation desiring to lay out, locate or
construct any street or way in any town which accepts the provisions
of this act, after the date of such acceptance, shall, before the
beginning of such construction, submit to said board of survey suitable
plans of such street or way, to be prepared in accordance with such
rules and regulations as the board may prescribe. Upon the receipt
of such plans, with a petition for their approval, the board shall
give a public hearing thereon, after giving notice of such hearing
by publication once a week for two successive weeks in a newspaper
published in the town, the last publication to be at least two days
before the hearing; and after such hearing the board may alter such
plans and may determine where such street or way shall be located, and
the width and grades thereof, and shall so designate on said plans. The
plans shall then be approved and signed by the board and filed in the
office of the clerk of the town, who shall attest thereon the date of
the filing.
Section 3. The board of survey shall from time to time cause to be
made under its direction plans of such territory or sections of land
in any town which accepts the provisions of this act, as the board may
deem advisable, showing thereon the location of such street 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
in such territory, showing clearly the direction, width and grades of
each street or way; and the board may employ such assistants and incur
such expenses in regard to said plans as it may deem necessary, not
exceeding the amount of money appropriated by the town for the purpose.
Before making any such plan the board shall give a public hearing as
to the location, direction, width and grades of streets or ways in the
territory to be shown on the plan, after giving notice of such hearing
by publication once a week for two successive weeks in a newspaper
published in the town, the last publication to be at least two weeks
before the hearing, and shall, after making any such plan, give a like
notice of hearing, and a hearing thereon, and shall keep the plan open
to public inspection for one month after the first publication of
notice of such hearing. After such hearing and after the alterations
deemed necessary by the board have been made in such plan, the plan
shall be marked as made under the provisions of this act, shall be
signed by the board, and shall then be filed in the office of the clerk
of said town, who shall attest thereon the date of such filing.
Section 5. If any building shall hereafter be placed or erected in any
town which accepts the provisions of this act within the boundaries of
any street or way shown on any plan filed with the town clerk as herein
provided, or on land adjacent to any such street or way the grade of
which at the time of placing or erecting such building is other than
the grade shown on said plan, or on land adjacent to any street or way
the plan and profile of which have not been approved by said board of
survey, no damages caused to any building so placed or erected, by the
construction of such street or way as shown on said plan, or caused
to any building so placed or erected, or to the land upon which such
building is placed or erected, by the subsequent change of grade of any
street or way the plan of which has not been approved by said board of
survey, shall be recovered by or paid to the owner of the whole or any
part of the estate of which the land upon which said building so placed
or erected formed a part at the date of the first publication of notice
of hearing as aforesaid.
B. PLANNING COMMISSIONS
1
ACTS OF MASSACHUSETTS, 1913. Chap. 494
AN ACT to provide for the establishment of local planning boards by
cities and towns.
SECTION 1. Every city of the commonwealth, and every town having a
population of more than ten thousand at the last preceding national or
state census, is hereby authorized and directed to create a board to
be known as the planning board, whose duty it shall be to make careful
studies of the resources, possibilities and needs of the city or town,
particularly with respect to conditions which may be injurious to the
public health or otherwise injurious in and about rented dwellings,
and to make plans for the development of the municipality with special
reference to the proper housing of its people. In cities, the said
board shall be appointed by the mayor, subject to confirmation by
the council, and in cities under a commission form of government, so
called, the members of the board shall be appointed by the governing
body of the city. In towns, the members of the board shall be elected
by the voters at the annual town meeting.
SECTION 2. Every planning board established hereunder shall make a
report annually to the city council or governing body in cities and
to the annual town meeting in towns, giving information regarding
the condition of the city or town and any plans or proposals for the
development of the city or town and estimates of the cost thereof; and
it shall be the duty of every such local planning board to file a copy
of all reports made by it with the homestead commission.
SECTION 3. The homestead commission, created by chapter six hundred and
seven of the acts of the year nineteen hundred and eleven, is hereby
directed to call the attention of the mayor and city governments in
cities and the selectmen in each town having a population of more
than ten thousand at the last preceding national or state census
to the provisions of this act in such form as may seem proper; and
said commission is furthermore authorized and directed to furnish
information and suggestions from time to time to city governments and
to the selectmen of towns and to local planning boards, when the same
shall have been created, such as may, in its judgment, tend to promote
the purposes of this act and of those for which the said commission was
established.
SECTION 4. The city council or other governing body in cities is
authorized to make suitable ordinances, and towns are authorized to
make suitable by-laws, for carrying out the purposes of this act, and
they may appropriate money therefor.
SECTION 5. This act shall take effect upon its passage. _Approved April
16, 1913._
2
LAWS OF NEW YORK, 1913. Chap. 699
AN ACT to amend the general municipal law by adding thereto a
provision authorizing cities and incorporated villages to appoint
planning commissions, and to appropriate money for the same.
_The People of the State of New York, represented in Senate and
Assembly, do enact as follows_:
SECTION 1. The general municipal law is hereby amended by adding
thereto a new article to be numbered twelve-a, to be entitled city and
village planning commissions, and to read as follows:
ARTICLE 12-a
CITY AND VILLAGE PLANNING COMMISSIONS
Section 234. CREATION, APPOINTMENT AND QUALIFICATIONS.
235. OFFICERS, EXPENSES AND ASSISTANCE.
236. GENERAL POWERS.
237. MAPS AND RECOMMENDATIONS.
238. PRIVATE STREETS.
239. RULES.
239-a. CONSTRUCTION OF ARTICLE.
Section 234. CREATION, APPOINTMENT AND QUALIFICATIONS. Each city and
incorporated village is hereby authorized and empowered to create a
commission to be known as the city or village planning commission. Such
commission shall be so created in incorporated villages by resolution
of the trustees, in cities by ordinance of the common council,
except that in cities of the first class, having more than a million
inhabitants, it shall be by resolution of the board of estimate and
apportionment or other similar local authority. In cities of the first
class such commission shall consist of not more than eleven, in cities
of the second class of not more than nine, in cities of the third
class and incorporated villages of not more than seven members. Such
ordinance or resolution shall specify the public officer or body of
said municipality, that shall appoint such commissioners, and shall
provide that the appointment of as nearly as possible one third of them
shall be for a term of one year, one third for a term of two years, and
one third for a term of three years; and that at the expiration of such
terms, the terms of office of their successors shall be three years; so
that the term of office of one third of such commissioners, as nearly
as possible, shall expire each year. All appointments to fill vacancies
shall be for the unexpired term. Not more than one third of the members
of said commission shall hold any other public office in said city or
village.
Section 235. OFFICERS, EXPENSES AND ASSISTANCE. The commission shall
elect annually a chairman from its own members. It shall have the power
and authority to employ experts, clerks, and a secretary, and to pay
for their services and such other expenses as may be necessary and
proper, not exceeding, in all, the annual appropriation that may be
made by said city or village for said commission. The body creating the
commission shall by ordinance or resolution provide what compensation
if any, each of such commissioners shall receive for his services
as such commissioner. Each city and incorporated village is hereby
authorized and empowered to make such appropriation as it may see fit
for such expenses and compensation, such appropriations to be made by
those officers or bodies in such city or village having charge of the
appropriation of the public funds.
Section 236. GENERAL POWERS. The body creating such planning commission
may, at any time, by ordinance or resolution, provide that the
following matters, or any one or more of them, shall be referred
for report thereon, to such commission by the board, commission,
commissioner or other public officer or officers of said city or
village which is the final authority thereon before final action
thereon by such authority: the adoption of any map or plan of said
city or incorporated village, or part thereof, including drainage and
sewer or water system plans or maps, and plans or maps for any public
water front, or marginal street, or public structure upon, in or in
connection with such front or street, or for any dredging, filling
or fixing of lines with relation to said front; any change of any
such maps or plans; the location of any public structure upon, in or
in connection with, or fixing lines with relation to said front; the
location of any public building, bridge, statue or monument, highway,
park, parkway, square, playground or recreation ground, or public open
place of said city or village. In default of any such ordinance or
resolution all of said matters shall be so referred to said planning
commission.
The body creating such planning commission may, at any time, by
ordinance or resolution, fix the time within which such planning
commission shall report upon any matter or class of matters to be
referred to it, with or without the further provision that in default
of report within the time so fixed, the planning commission shall
forfeit the right further to suspend action, as aforesaid with regard
to the particular matter upon which it has so defaulted. In default of
any such ordinance or resolution, no such action shall be taken until
such report is so received, and no adoption, change, fixing or location
as aforesaid by said final authority, prior thereto, shall be valid. No
ordinance or resolution shall deprive said planning commission of its
right or relieve it of its duty, to report, at such time as it deems
proper, upon any matter at any time referred to it.
This section shall not be construed as intended to limit or impair the
power of any art commission, park commission or commissioner, now or
hereafter existing by virtue of any provision of law, to refuse consent
to the acceptance by any municipality of the gift of any work of art to
said municipality, without reference of the matter, by reason of its
proposed location or otherwise, to said planning commission. Nor shall
this section be construed as intended to limit or impair any other
power of any such art commission or affect the same, except in so far
as it provides for reference or report, or both, on any matter before
final action thereon by said art commission.
Section 237. MAPS AND RECOMMENDATIONS. Such planning commission may
cause to be made a map or maps of said city or village or any portion
thereof, or of any land outside the limits of said city or village
so near or so related thereto that in the opinion of said planning
commission it should be so mapped. Such plans may show not only
such matters as by law have been or may be referred to the planning
commission, but also any and all matters and things with relation to
the plan of said city or village which to said planning commission seem
necessary and proper, including recommendations and changes suggested
by it; and any report at any time made, may include any of the above.
Such planning commission may obtain expert assistance in the making of
any such maps or reports, or in the investigations necessary and proper
with relation thereto.
Section 238. PRIVATE STREETS. The body creating such planning
commission may at any time, by ordinance or resolution, provide that
no plan, plot or description, showing the layout of any highway or
street upon private property, or of building lots in connection with or
in relation to such highway or street shall, within the limits of any
municipality having a planning commission, as aforesaid, be received
for record in the office of the clerk of the county where such real
property is situated, until a copy of said plan, plot or description
has been filed with said commission and it has certified, with relation
thereto, its approval thereof. Such certificate shall be recorded as a
part of the record of said original instrument containing said plan,
plot, or description. No such street or highway which has not received
the approval of the planning commission shall be accepted by said city
or village until the matter has been referred to such commission under
the provision of section two hundred and thirty-six of this article.
But if any such street is plotted or laid out in accordance with the
map of said municipality, adopted according to law, then it shall not
be necessary to file such copy, or obtain or record such certificate.
Section 239. RULES. Such commission may make rules not contrary to law,
to govern its action in carrying out the provisions of this article.
Section 239-a. CONSTRUCTION OF ARTICLE. This article shall be
construed as the grant of additional power and authority to cities
and incorporated villages, and not as intended to limit or impair any
existing power or authority of any city or village.
Any city or incorporated village in order to appoint a planning
commission under this article shall recite, in the ordinance or
resolution so creating the commission, the fact that it is created
under this article.
Section 2. This act shall take effect immediately.
STATE OF NEW YORK, }
Office of the Secretary of State. } _ss_:
I have compared the preceding with the original law on file in this
office, and do hereby certify that the same is a correct transcript
therefrom and of the whole of the said original law.
MITCHELL MAY,
_Secretary of State_.
3
LAWS OF PENNSYLVANIA, GENERAL ASSEMBLY. No. 406, of 1913
A SUPPLEMENT to an Act entitled, “An act providing for the
incorporation and government of cities of the third class,” approved
the twenty-third day of May, Anno Domini one thousand eight hundred
eighty-nine, creating a City Planning Department, defining its
jurisdiction, and extending the same so as to regulate the laying out
and recording of plans of lots within the limits of the city, and for
three miles beyond the city limits; and to regulate the making and use
of certain public improvements until said plans are approved by said
department and authorizing the exercise of the powers herein provided
by a park or other municipal commission.
Section 1. Be it enacted, &c., That an additional executive department
in the government of cities of the third class is hereby created, to
be known as the Department of City Planning, which shall be in charge
of a City Planning Commission, consisting of five persons, to be
appointed by the mayor and councils. In the first instance, one member
of said commission shall be appointed for one year, one member for
two years, one member for three years, one member for four years, and
one member for five years, and annually thereafter a member of said
commission shall be appointed for a term of five years. An appointment
to fill a casual vacancy shall be only for the unexpired portion of
the term. All members of the said commission shall reside within the
zone of jurisdiction of said commission, as hereinafter defined. They
may make and alter rules and regulations for their own organization
and procedure, consistent with the ordinances of the city and the laws
of the Commonwealth. They shall serve without compensation, and make
annually to the mayor and councils a report of their transactions.
They may employ engineers and other persons, whose salaries and wages,
and other necessary expenses of the commission, shall be provided for
through proper appropriation by councils.
Section 2. The clerks of council shall, upon introduction, furnish to
the City Planning Commission, for its consideration, a copy of all
ordinances and bills, and all amendments thereto, relating to the
location of any public building of the city; and to the location,
extension, widening, narrowing, enlargement, ornamentation, and parking
of any street, boulevard, parkway, park, playground, or other public
ground; and to the relocation, vacation, curtailment, changes of use,
or any other alteration of the city plan, with relation to any of
the same; and to the location of any bridge, tunnel, and subway, or
any surface, underground, or elevated railway. The said commission
shall have the power to disapprove any of the said ordinances, bills,
or amendments, which disapproval, however, must be communicated to
councils, in writing, within ten days from the introduction of said
ordinances; but such disapproval shall not operate as a veto.
Section 3. The City Planning Commission may make or cause to be made,
and lay before councils, and at its discretion cause to be published,
maps of the city or any portion thereof, including territory extending
three miles beyond the city limits, showing the streets, and highways
and other natural and artificial features, and also locations proposed
by it for any new public buildings, civic centre, street, parkway,
park, playground, or any other public ground or public improvement, or
any widening, extension, or relocation of the same, or any change in
the city plan by it deemed advisable; and it may make recommendations
to councils, from time to time, concerning any such matters and things
aforesaid, for action by councils thereto; and, in so doing, have
regard for the present conditions and future needs and growth of the
city, and the distribution and relative location of all the principal
and other streets and railways, waterways, and all other means of
public travel and business communications, as well as the distribution
and relative location of all public buildings, public grounds, and open
spaces devoted to public use.
Section 4. The City Planning Commission may make recommendations to any
public authorities, or any corporations or individuals in said cities,
with reference to the location of any buildings, structures, or works
to be erected or constructed by them.
Section 5. All plans, plots, or re-plots of lands laid out in building
lots, and the streets, alleys, or other portions of the same intended
to be dedicated to public use, or for the use of purchasers or owners
of lots fronting thereon or adjacent thereto, and located within
the city limits, or for a distance of three miles outside thereof,
shall be submitted to the City Planning Commission and approved by
it before it shall be recorded. And it shall be unlawful to receive
or record such plan in any public office unless the same shall bear
thereon, by endorsement or otherwise, the approval of the City Planning
Commission. The disapproval of any such plan by the City Planning
Commission shall be deemed a refusal of the proposed dedication shown
thereon. The approval of the commission shall be deemed an acceptance
of the proposed dedication; but shall not impose any duty upon the
city concerning the maintenance or improvement of any such dedicated
parts, until the proper authorities of the city shall have made actual
appropriation of the same by entry, use, or improvement. No sewer,
water, or gas-main, or pipes, or other improvement, shall be voted or
made within the area under the jurisdiction of said commission, for
the use of any such purchasers or owners; nor shall any permit for
connection with or other use of any such improvement existing, or for
any other reason made, be given to any such purchasers or owners until
such plan is so approved. Where the jurisdictional limit of three miles
outside of the city limits, as provided in this section, may conflict
with the zone of similar character connected with another city of the
third class, the jurisdiction of said commission shall extend only to
the point equidistant between the city limits and the limits of said
municipality.
Section 6. It shall be proper for said cities to provide, by ordinance,
for the exercise of all rights and powers herein conferred upon the
City Planning Commission, by a park commission, or kindred municipal
bureau or commission, authorized under existing laws. And no person
holding office under the government of any of said cities, except the
mayor, members of councils, or commissioners, shall be ineligible to
serve as a member of a City Planning Commission.
Section 7. All acts and parts of acts inconsistent with this act are
repealed.
APPROVED—The 16th day of July, A. D. 1913.
JOHN K. TENER.
The foregoing is a true and correct copy of the Act of the General
Assembly, No. 406.
ROBERT MCAFEE,
Secretary of the Commonwealth.
4
LAWS OF NEW JERSEY, 1913. Chap. 72
AN ACT to enable cities of the first class in this State to provide
for a city plan commission and provide funds for the same and defining
the duties thereof.
BE IT ENACTED _by the Senate and General Assembly of the State of New
Jersey_:
1. In cities of the first class it shall be lawful for the mayor to
appoint a commission to be known as the “City Plan Commission,” to
consist of not more than nine citizens of such city, and the terms of
office of all of such commissioners shall begin upon the first day of
January next succeeding the date of their appointment in such city.
Whenever commissioners shall be appointed under this act, the terms
of such commissioners shall be divided into classes of one, two and
three years, and the mayor shall designate which of such commissioners
shall hold such respective terms under the first appointment, and shall
divide the said commissioners, as nearly as may be, into such classes,
and said commissioners first appointed as aforesaid shall hold their
terms for one, two and three years respectively.
All subsequent appointments shall be for the term of three years, and
in case any vacancy arises the appointment to fill the same shall be
for the unexpired term.
Any city plan commission now existing in any such city shall be
continued, but with the powers and duties herein provided, until the
appointment of new commissioners, under the provisions of this act.
2. Such commissions shall serve without pay, and it shall be the
duty of such commission to prepare, from time to time, plans for the
systematic and further development and betterment of such city. It
shall have the power and authority to employ experts, clerks and a
secretary, and to pay for their services, and to pay for such other
expenses as such commission may lawfully incur under the powers hereby
granted, including the necessary disbursements incurred by its members
in the performance of their duties as members of said commission;
_provided, however_, that the total amount so expended in any one
year shall not exceed the appropriation for such year as hereinafter
provided.
The said city plan commission may consider and investigate any subject
matter tending to the development and betterment of such city, and make
such recommendations as it may deem advisable concerning the adoption
thereof to any department of the municipal government, and for any
purpose make, or cause to be made, surveys, plans or maps.
3. All questions concerning the location and architectural design of
any work of art, statue or other memorial within such city shall be
referred to the city plan commission for its consideration and report
before final action is taken thereon.
All plats or replats of any lands within the limits of such city shall
be submitted to the city plan commission for its recommendation before
the same are approved.
4. It shall be lawful for the board or body having charge of the
finances of any city of the first class as aforesaid, to appropriate
any amount not exceeding twenty-five thousand (25,000) dollars any
year that such commission may remain in existence, for the expenses of
such city plan commission, and the moneys required for the expenses of
said commission shall be raised by annual tax upon real and personal
property as other taxes are raised in and for such city; _provided,
however_, that for the fiscal year in which this act becomes effective,
such moneys may be raised by said board or body having charge of the
finances of such city, by appropriating for that purpose any moneys in
the treasury of such city not otherwise appropriated, or by issuing
and selling temporary loan bonds or certificates of indebtedness;
_provided_, that such bonds or certificates shall be sold at public
or private sale, after due advertisement, at not less than par; which
bonds shall bear interest at not more than five per centum per annum,
and the payment thereof, with interest, shall be provided for in the
next tax levy.
5. All acts or parts of acts inconsistent with the provisions of this
act are hereby repealed.
6. This act shall take effect immediately. Approved March 12, 1913.
5
SPECIAL ACTS OF CONNECTICUT, 1907. No. 61
Section 1. That there shall be in the city of Hartford a commission
on the city plan, which shall consist of the mayor, who shall be its
presiding officer, the president of the board of street commissioners,
the president of the board of park commissioners, the city engineer,
two citizens, neither of whom shall hold any other office in said city
government, one member of the board of aldermen, and one member of the
common council board, to be appointed as hereinafter provided.
Section 2. The necessary expenses of said commission shall be paid by
the city, but no member thereof shall be paid for his services as such
member.
Section 3. Terms of commissioners....
Section 4. All questions concerning the location of any public
building, esplanade, boulevard, parkway, street, highway, square,
or park shall be referred to said commission by the court of common
council for its consideration and report before final action is taken
on such location.
Section 5. The court of common council may refer to said commission the
construction or carrying out of any public work not expressly within
the province of other boards or commissions of said city, and may
delegate to said commission all powers which the said council deems
necessary to complete such work in all details.
Section 6. Said commission may make or cause to be made a map or maps
of said city, or any portion thereof, showing locations proposed by it
for any new public building, esplanade, boulevard, parkway, or street,
and grades thereof, any street, building, and veranda lines and grades
thereon, or for any new square or park, or any changes by it deemed
advisable in the present location of any public building, street,
grades and lines, square or park, and may employ expert advice in the
making of such map or maps.
Section 7. Said City of Hartford, acting through said commission or
otherwise, shall have power to appropriate, enter upon, and hold in fee
real estate within its corporate limits for establishing esplanades,
boulevards, parkways, park grounds, streets, highways, squares, sites
for public buildings, and reservations in and about and along and
leading to any or all of the same; and, after the establishment,
lay-out, and completion of such improvements, may convey any real
estate, thus acquired and not necessary for such improvements, with or
without reservations, concerning the future use and occupation of such
real estate so as to protect such public works and improvements and
their environs, and to preserve the view, appearance, light, air, and
usefulness of such public works.
6
ACTS OF MARYLAND, 1910. Chap. 144
AN ACT to add a new section relating to the creation of a Commission
on City Plan to Article 4, entitled “City of Baltimore,” of the Code
of Public Local Laws of Maryland, to come in immediately after Section
200, and to be known as Section 200a.
Section 1. _Be it enacted by the General Assembly of Maryland_, That
a new section be and the same is hereby added to Article 4, entitled
“City of Baltimore,” of the Code of Public Local Laws of Maryland, to
come in immediately after Section 200 and to be known as Section 200a,
and to read as follows:
200a. There shall be a Commission on City Plan, to consist of the
Mayor of the City of Baltimore and eight other members who shall be
appointed by the Mayor in the manner prescribed in Section twenty-five
of this Article, who shall hold their offices as in said section
provided, and shall serve without pay; one of the said commissioners
shall be president of said commission, and shall be so designated by
the Mayor; the said commission may elect a secretary, who shall be
paid such salary as may be provided for by ordinance and who shall
perform such duties as may be from time to time prescribed by said
commission. The said commission shall investigate all plans proposed
for the construction or extension of public highways in the City of
Baltimore and the establishment of a civic centre or other public
improvements in connection therewith, and shall report the results of
such investigations from time to time to the Mayor and City Council,
and shall perform such other duties and exercise such other powers
as may be delegated to it or as may be prescribed by ordinances not
inconsistent with this Article.
7
CHARTER OF CITY OF CLEVELAND
Adopted July 1, 1913
Section 77. City Plan Commission. There shall be a city plan commission
to be appointed by the mayor with power to control, in the manner
provided by ordinance, the design and location of works of art which
are, or may become, the property of the city; the plan, design and
location of public buildings, harbors, bridges, viaducts, street
fixtures, and other structures and appurtenances; the removal,
relocation and alteration of any such works belonging to the city; the
location, extension and platting of streets, parks and other public
places, and of new areas; and the preparation of plans for the future
physical development and improvement of the city.
8
LAWS OF PENNSYLVANIA. GENERAL ASSEMBLY. No. 226, of 1913
AN ACT to create Suburban Metropolitan Districts of the areas within
twenty-five miles of the limits of cities of the first class; to
provide for the creation of a Department of Suburban Metropolitan
Planning and the appointment of Suburban Metropolitan Planning
Commissions for such districts; to prescribe their powers and duties;
and to provide for assessment upon the cities, boroughs and townships
within the limits thereof.
Whereas, The establishment of Suburban Metropolitan Planning
Commissions having jurisdiction over territory adjacent to cities
of the first class is desirable, in order to provide for its proper
development by the coöperation of the various local governmental units
in matters pertaining to their common welfare; and
Whereas, It is desirable, that there should be co-ordination of effort
with Urban Metropolitan Planning Commissions, relating to cities of the
first class themselves, wherever the same may exist:—
Section 1. Be it enacted, &c., That in order to secure coördinated,
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,
as hereinafter provided for, the districts surrounding and within
twenty-five miles of the limits of cities of the first class, whether
in one or more counties, and in order to prevent waste by unnecessary
duplication, the areas included within twenty-five miles of the
limits of cities of the first class shall be denominated the Suburban
Metropolitan Districts of cities of the first class of Pennsylvania.
When any city, borough, or township is partly within and partly without
the twenty-five mile limit, the whole of such city, borough, or
township shall be regarded as within the Suburban Metropolitan District.
Section 2. There shall be an executive department created for every
Suburban Metropolitan District, to be known as the Department of
Suburban Metropolitan Planning, which shall be in charge of a Suburban
Metropolitan Planning Commission.
Section 3. The Suburban Metropolitan Planning Commission shall be
appointed by the Governor of the State of Pennsylvania, and shall
consist of fifteen members, who may or may not hold other public
office, whether for profit or otherwise, of whom twelve shall be
residents of the district involved, and three shall be residents of the
said city of the first class, five members to be appointed to serve for
one year, five for two years, five for three years; then, thereafter,
each appointment to be for three years.
An appointment to fill a casual vacancy shall be for the unexpired
portion of the term. Nine shall constitute a quorum.
The Suburban Metropolitan Planning Commission shall make and alter
rules and regulations for its own organization and procedure,
consistent with the laws of the Commonwealth. From its own members it
shall choose a chairman and vice-chairman. Each member shall serve
without compensation. On or before January tenth of each and every
year, the Commission shall make to the mayor of each city, to councils
of each borough, to the commissioners of each first class township,
and to the supervisors of each second class township, within the
Suburban Metropolitan District, to the mayor of the said city of the
first class, and to the Governor of the State of Pennsylvania, a report
of its transactions and recommendations. The Commission may employ a
secretary, engineers, and other experts and persons, whose salaries and
wages, as well as all the other necessary expenses of the Commission
and members thereof, shall be provided for as hereinafter set forth.
Section 4. The Suburban Metropolitan Planning Commission shall make,
or cause to be made, and laid before the respective governmental
authorities of the district, and, in its discretion, caused to be
published, a map or maps of the entire district, or any portion or
portions thereof, showing any or all systems of transportation,
highways and roads, parks, parkways, water-supply, sewerage and sewage
disposal, collection and disposal of garbage, housing, sanitation,
playgrounds and civic centers, or of other natural physical features
of the district; and it shall prepare plans for any new or enlarged
facilities for intercommunication, parks, parkways, water-supply
systems, sewers, sewage disposal, garbage disposal, land plottings
and housing arrangements, playgrounds and civic centers, or any other
public improvement that will affect the character of the district as
a whole, or more than one political unit within the district, or any
widening, extension, or relocation of the same, or any change in the
existing township or borough or city plans, by it deemed advisable.
And it shall make recommendations to the respective governmental
authorities, from time to time, concerning any such matters or things
aforesaid, for action by the respective legislative, administrative,
or governmental bodies thereon; and in so doing have regard for the
present conditions and future needs and growth of the district, and
the distribution and relative location of all the principal and other
streets, and railways, waterways, and all other means of public travel
and business communications, as well as the distribution and relative
location of all public buildings, public grounds, and open spaces
devoted to public use, and the planning, subdivision and laying out for
urban uses of private grounds brought into the market from time to time.
Section 5. Any city, borough, or township, within any Suburban
Metropolitan District, may request the Suburban Metropolitan Planning
Commission of that district to prepare plans concerning any of the
subjects set forth in section four of this act; whereupon it shall be
the duty of the Commission to prepare such plans with dispatch.
Section 6. The Suburban Metropolitan Planning Commission may make
recommendations to any public authorities, or any corporation or
individual in said districts, with reference to the location of any
buildings and structures to be constructed by them.
Section 7. The plans so made and laid before the respective
governmental authorities by the Suburban Metropolitan District Planning
Commission, according to sections four, five and six, shall be
considered by such respective authorities, and followed by them in so
far as shall be determined by each authority:
Provided however, That the provisions of this act shall not abridge or
in any way affect the provisions of an act, entitled “An act creating
a Department of Health, and defining its powers and duties,” approved
the twenty-seventh day of April, Anno Domini, one thousand nine hundred
and five; or the provisions of an act, entitled “An act to preserve the
purity of the waters of the State, for the protection of the public
health,” approved the twenty-second day of April, one thousand nine
hundred and five.
Section 8. On or before January tenth of each and every year, the
Commission shall prepare an estimate of its expenses for the ensuing
year, setting forth with as much detail as is practicable the items
of which such estimate is composed; and shall cause the amount of
its expenses so estimated, after deducting the cash on hand and the
unpaid assessments, to be assessed against the cities, boroughs, and
townships within the district, in proportion to their respective tax
duplicates. The itemized estimate of expenses and a statement of the
rate of assessment shall be spread upon the minutes of the Commission,
which shall be kept open at all times for public inspection. Each and
every assessment, when certified by the chairman and secretary of the
Commission, shall constitute a charge on the treasury of the respective
city, borough, and township, and its immediate payment shall be at once
provided for. The Commission shall have power to secure payment of the
assessments by suits of mandamus, or otherwise: Provided, That the rate
of assessment shall not exceed one-tenth of one mill.
APPROVED—The 23d day of May, A. D. 1913.
JOHN K. TENER.
The following is a true and correct copy of the Act of the General
Assembly No. 226.
ROBERT MCAFEE,
Secretary of the Commonwealth.
9
LAWS OF PENNSYLVANIA. GENERAL ASSEMBLY No. 456, of 1913
AN ACT to amend an act, entitled “An act creating an art jury for
cities of the first class, and prescribing its powers and duties,”
approved the twenty-fifth day of May, Anno Domini one thousand nine
hundred and seven.
Section 1. Be it enacted, &c., That section three of an act, entitled
“An act creating an art jury for cities of the first class, and
prescribing its powers and duties,” approved the twenty-fifth day of
May, one thousand nine hundred and seven, which reads as follows:—
“Section 3. The members of the jury shall serve without compensation;
and from their own number shall elect a president and _secretary_,
to serve for one year, and until their successors are elected. The
jury shall have power to adopt its own rules of procedure and to
prescribe regulations for the submission to it of all matters within
its jurisdiction. Five members shall constitute a quorum. The councils
of said city shall, by ordinance, provide for the necessary expenses
of the jury, including the salaries of _such clerk or clerks as may be
required and appointed by the mayor of said cities_,” is hereby amended
so that it shall read:—
Section 3. The members of the jury shall serve without compensation;
and from their own number shall elect a president and _vice-president_,
to serve for one year, and until their successors are elected. The
jury shall have power to adopt its own rules of procedure and to
prescribe regulations for the submission to it of all matters within
its jurisdiction. Five members shall constitute a quorum. _The jury
shall have power to employ a secretary, and such clerks, stenographers
and other assistants as it may require. All employees of the jury shall
be exempt from the provisions of the act to regulate and improve the
civil service of the cities of the first class, approved March fifth,
one thousand nine hundred and six._ The councils of said city shall, by
ordinance, provide for the necessary expense of the jury, including the
salaries of its employees.
Section 2. That said act is hereby further amended by adding the
following:—
Section 7. 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, either 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, unless the design and proposed location thereof
shall have been submitted to the jury, at least sixty days before the
final approval thereof, by the officer or other person having authority
to contract therefor. 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 other public place, within the city,
except as provided in section six of this act. 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 such 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 sixty days after such submission its
approval of the matter submitted shall be presumed.
APPROVED—The 24th day of July, A. D. 1913.
JOHN K. TENER.
The foregoing is a true and correct copy of the Act of the General
Assembly, No. 456.
ROBERT MCAFEE,
Secretary of the Commonwealth.
FOOTNOTES:
[166] See page 248 of this Appendix for the amendment which passed in
1913.
APPENDIX B
EXTRACTS FROM REPORT ON ENGLISH AND CONTINENTAL SYSTEMS OF TAKING LAND
FOR PUBLIC PURPOSES
FROM MASSACHUSETTS DOCUMENTS, 1904. House No. 288 of 1904 and House No.
1096 of 1904
THE REPORT OF COMMITTEE
It has clearly appeared, from the evidence submitted to us, that the
present system of laying out new streets or widening or altering
existing ones, under which only the land actually required for the
street is taken, is, especially in those parts of cities which
are covered with existing buildings, productive of serious public
disadvantages; and a brief consideration of the matter is sufficient to
show that this difficulty is inherent in the system itself, and must
persist unless some modification of that system can be devised.
The land abutting on any existing street is divided and arranged in
lots, which, as well as the circumstances have admitted, are adapted
to the street in its present condition, and the buildings thereon are
constructed in conformity therewith. Any widening of the street not
only destroys the existing buildings, but, by reducing the size of the
abutting lots, leaves the residues or remnants of many of them of such
shape and size as to be entirely unsuited for the erection of proper
buildings, unless and until these remnants have been united with the
adjoining properties, generally with those in the rear, which are thus
enabled to extend out to the new street lines.
The same condition is found, and frequently even to a greater extent,
when a new thoroughfare is laid out through existing blocks covered
with buildings.
Hence, when an existing street is widened or a new thoroughfare is
laid out under the present system, the lots on one or both sides of
the new or widened street are left in such condition that, until
a rearrangement can be made, no suitable buildings can be erected
thereon, and the public benefit to be derived from the improvement is
in great measure lost.
The street may be valuable as a thoroughfare or as one for through
traffic, but not for either business or residence purposes; and
striking instances of this have been presented to the committee in
connection with street improvements in the city of Boston.
Not only is such a situation a great disadvantage to the city, in
hindering and sometimes preventing its proper development, but it will
easily be seen that this state of affairs renders the collection of
betterment assessments extremely difficult, since the benefit to the
surrounding property, which should accrue from the improvement, is
actually not received until these residues or remnants have been united
with the adjoining lots,—a process which, under the present system, may
take years.
It often happens that the owners of these remnants, desirous of
deriving some income therefrom in the meanwhile, erect thereon
temporary structures, unsuited for proper habitation or occupancy; and
such structures are too frequently made intentionally objectionable,
both in appearance and in the character of their occupancy, for the
purpose of compelling the purchase of such remnants at exorbitant
prices; with the result that a new thoroughfare, which should be
an ornament to the city, is frequently for a long period after its
construction disfigured by unsightly and unwholesome structures, to
the positive detriment of the public interests. These results, which
seem inevitable under the present system, may operate to prevent the
undertaking of much-needed street improvements.
* * * * *
Furthermore, it is believed that the taking of whole estates, instead
of taking the greater part and leaving an undesirable remnant, would
not materially increase the initial expense of the undertaking;
inasmuch as a city which takes, under the present system, so much of
an estate as to leave the remainder unsuited for building purposes,
is often obliged to pay for the value of the part taken, and for the
damages to the remaining part practically as much as it would be
obliged to pay for the whole estate.
What has been said above indicates the public considerations which
render a change in the existing system desirable.
There is also, however, another side to the question, viz., that of the
private owner, the consideration of which appears to point to the same
conclusion. It frequently happens that an owner, the greater part of
whose estate is necessarily taken for a public work, would prefer not
to be left with the remnant on his hands, and if an opportunity were
offered, would voluntarily request the city to take the whole estate.
Many people recognize that there is less opportunity for differences
of opinion upon the question of the market value of a whole estate
than over the more complicated question of the value of the portion
which has been taken, and the damages to the remainder by reason of
such taking; and hence a system under which the city could acquire the
whole estate would be productive of greater ease in the settlement of
damages, and less likelihood of litigation over the question involved
therein.
This right of the private owner to require the taking of the whole
estate, when the residue, after deducting what is actually needed for
the public work, is unsuited for the erection of appropriate buildings
or is reduced below a certain area, is almost universally recognized
both in England and on the continent of Europe. It has also received
recognition in this State, in chapter 159 in the Acts of 1867, relating
to the widening of Oliver Street in the city of Boston, which act,
after empowering the city to assess the cost of the improvement upon
the abutting estates, provided that any owner, part of whose land was
taken, might before the assessment elect to surrender his whole estate
to the city, which should pay therefor its full value as it was before
the improvement was made, and should have the right to resell the
portion not required for the new street.
The constitutionality of this act was upheld in the case of Dorgan
_vs._ Boston, 12 Allen, 223.
With regard to the acquirement by compulsory taking of land beyond the
limits of a given public work, we find that two different systems have
prevailed:—
1. The taking, in addition to the land actually required for the public
work, of all the property within certain bounds in the neighborhood of
the proposed work; the rearranging of the lot lines of the property so
acquired; and the disposal of this property by sale or lease for the
benefit of the city.
2. The taking, in addition to the land actually required for the public
work, of such residues or remnants of lots only which, in consequence
of the taking for the public work, will be left of such shape and size
as to be unsuited for the erection of proper buildings; and also of
such portions of the adjoining properties as it may, in consequence of
the refusal of their owners to purchase these remnants, be necessary to
acquire, in order to make proper building lots abutting on the proposed
street.
In favor of the first system, it has been urged that, in consequence of
the carrying out of the proposed public work, there will be an increase
in value of the surrounding property, caused by no act of its owner,
but entirely by the act of the public body, and at the public expense;
that it is inequitable that such increase in value should not accrue
to the public, to the expenditure of whose money it is solely due;
that the method of acquiring the abutting property in the neighborhood
is the best method of securing such benefit to the public; that it is
far simpler and more equitable than any system for the collection of
betterments; and that, if the owners of the abutting property are paid
its full value as it was before the improvement took place, they have
no cause to complain.
This is the system which, in substance, has been adopted for important
street improvements in many cities of Great Britain, Belgium,
Switzerland and Italy and has, we are informed, been on the whole
successful in its operation, and is believed in certain cases to have
materially reduced the cost of public improvements.
As against this system it is urged that the State ought not to
dispossess the private owner of his property simply in order that the
public work may be carried on at less cost, through resale of the
property so acquired; that the expense of public works should be met
by taxation, and not by the taking of private property for no other
purpose than to benefit the public exchequer by its resale; that the
power to take property for such purposes as is contemplated by the
first system is practically a power to enter into a land speculation,
which may result disastrously.
In the case of our cities, there is the further objection that the
adopting of such a system might easily carry the initial cost of an
undertaking beyond the debt limit of the municipality.
In support of the second system, it is urged that the ends of public
necessity and convenience, for which private property may properly be
taken, can all be accomplished by limiting the taking, in addition to
the land actually required for the public work, to such remainders of
lots as are by themselves unsuited for proper building purposes, and by
uniting them to the adjoining properties, compulsorily, if necessary;
and that the right to take private property should not be extended
beyond these salutary limits.
Such is the system which, originally established for the city of Paris,
has now been extended to many of the other important cities of France,
and under which many of their great improvements have been carried out;
and such a system should, it would seem, if fairly and judiciously
applied, be ample to our needs.
In the draft of an act herewith submitted we have, in substance,
adopted this plan, and believe that it will be time enough to consider
adopting a more comprehensive scheme if the plan proposed shall, after
a fair trial, be found insufficient to our needs.
It would appear that, in order to give such a system its full value and
effect, its operation should be extended to parcels of land comprised
within the limits of streets which are discontinued in consequence of
the laying out of new streets, so that such parcels could be united to
the land abutting thereon.
This has been found to be advisable in the practical application of the
law in France; and in the plan for such a law, herewith submitted, we
have attempted to make such additional provision.
* * * * *
With regard to the provisions as to taking the land of an adjoining
owner who does not accept the city’s offer to sell to him the parcel
which the city has acquired outside of the limits of the proposed
public work, it should be added that in our opinion such takings would
in practice be of quite rare occurrence. Such owners are usually
desirous of acquiring parcels which give them access on new or widened
highways, if this can be done at fair prices, but are unwilling to pay
the exorbitant prices which are often asked for such parcels. As the
very fact that a residue or remnant of a lot had under the proposed act
been acquired by the city would show that it had been adjudged that the
remnant was by itself unsuited for the erection of buildings, the only
uses that could consistently be made of it would either be to leave
it open, thus destroying the utility of much of the street frontage,
or to unite it with the adjoining property; and, were the owner of
the adjoining property to feel that the only possible courses open to
the city were either to leave the lot vacant or to sell it to him, he
probably would offer but a nominal sum for it.
The purpose of these provisions, therefore, is to enable the city to
receive fair prices for these remnants, and to control the character of
their development.
We have been urged to consider, and have considered, the desirability
of insisting on certain architectural requirements, to ensure greater
symmetry and harmony in the constructions which front on and frame our
principal avenues. It has seemed to us that such requirements could not
well be embodied in such an act as we have submitted, and were probably
beyond the scope of our mandate. We have, however, provided that, in
disposing of any land acquired outside of the lines of the new street,
the city might impose restrictions thereon; and it is our expectation
that in framing those restrictions due regard would be had to ensuring
the architectural symmetry of the new street.
It would, in our opinion, often be of great benefit to the city to
impose such restrictions for a limited term of years upon all property
abutting on a new or widened street; and this might be done, whether
any portions of such property were acquired by the city or not; in
other words, even were the street to be laid out under the present
highway acts. While it might not be desirable to attempt to embody the
details of such restrictions in a general act, the power to impose
such reasonable restrictions as should be found necessary to ensure
the architectural symmetry of the new street might be conferred by a
general act, containing provisions for the payment of the damages, if
any, resulting from the exercise of such powers.
It should be noted that this question has been successfully dealt with
in connection with the new streets of London, by requiring that the
façade plans and elevations of the new buildings to be erected thereon
should be submitted to the approval of the municipal authorities, which
approval, however, is not to be “unreasonably withheld”; and providing
for a decision on the plans by an umpire, viz., an architect selected
by the president of the Royal Institute of Architects, in case the city
and the private owners failed to agree.
The question of the constitutionality of the proposed enactment has
of course presented itself, and deserves careful consideration. The
committee is, however, of the opinion that it was not the intention of
the Legislature, in passing the resolve under which the committee was
appointed, that the committee should attempt to advise the Legislature
on this important question of constitutional law. The supreme judicial
court is made by the constitution (chapter III, article 2) the adviser
of the Legislature on such questions, and either branch of the
Legislature is given authority to require the opinion of the justices
of that court thereon.
It seems, however, proper to direct the attention of the Legislature
to the fact that a law which should authorize a municipality to take
the whole of those lots, so much of which is actually required for
the public work that the remainder will not be of such size or shape
as to be suitable for the erection of proper or wholesome buildings,
would not be open to such serious or grave constitutional objections
as one which, purely for the purpose of effecting a saving in the cost
of carrying out a given public work, should authorize a municipality
to take private property to a much greater extent than is needed for
the work, and, by sale of the surplus, to receive the benefit of the
increase in value given to that surplus by the public work in question.
The taking of the whole of those estates the remnants of which would
not be suited for the erection of proper buildings may well be deemed a
taking for those public uses for which building regulations and those
limiting the height of buildings on public areas have been upheld.
Furthermore, the supreme court of this State, in the case of the
Copley Square restrictions (Attorney General _vs._ Williams, 174 Mass.
476, 478), has laid down the principle that “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.” And these principles are widely
recognized today.
The union of such remnants or remainders to the adjoining properties,
either by their sale to the owners of such properties or by the taking
of so much of such properties as when added to such remainders will
make lots which are suitable for the erection of proper or wholesome
buildings, would seem to be essential, if the public ends for which
such remainders are taken are to be accomplished; and the right to
authorize such takings of adjoining properties would seem to follow, if
the taking of the remnants is considered a taking for a public use.
There are doubtless cases in which the Legislature might authorize the
taking of the whole of the land comprised within a certain area, and
its subsequent resale. It seems to be clear that the right exists,
whenever such a course is desirable in order to abate a nuisance or
remedy conditions inimical to public health; and that the Legislature
may authorize the municipality, after having abated the nuisance or
remedied such conditions, to resell the whole or any part of the
property as acquired. This power has been frequently exercised,
the most notable instance perhaps having been chapter 308 of the
Acts of 1867, relating to the Church Street district in Boston, the
constitutionality of which enactment was upheld in the case of Dingley
_vs._ Boston, 100 Mass. 554.
There may be other cases in which such extended takings would be
upheld, but, for the purposes of the legislation which we have
recommended, the consideration of such cases would not seem to be
necessary.
MUNICIPAL REAL ESTATE OPERATIONS IN CONNECTION WITH STREET IMPROVEMENTS
IN PARIS AND LONDON, House Doc. 288 (pp. 53-56)
The experience of Paris and London teaches that it is unwise for a
city to attempt to recover a part of the cost of street improvements
by taking more land than is required for the streets themselves, with
a view to intercepting the increases in value which the improvements
may give to the adjoining land. In this respect the experience of the
provincial towns of England has not differed materially from that of
London and Paris.
Experience teaches that, while the effect of street improvements upon
land values often is uncertain, there is, upon the whole, an increase
of values that would lessen materially the cost of street improvements,
if cities could collect that increase by means of so-called
“recoupment.” But thus far “failure of administration” has defeated the
efforts of cities to collect the so-called unearned increment arising
from street improvements.