SECTION 29. EMERGENCY.

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.

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