REAL ESTATE
AND
NEW YORK, AUGUST 12, 1916
VALIDITY OF THE CITY PLAN OR ZONING SYSTEM
ADOPTED BY THE BOARD OF ESTIMATE
By CHARLES H. PECK, Ass't Solicitor, N. Y. Title & Mortgage Co.
BY Chapter 470, Laws of 1914, two new
sections were added to the Charter
of the City of New York, Section 242a,
and Section 242b. These provisions
granted to the Board of Estimate exten¬
sive powers to create what is commonly
known as the "zoning system"—"to reg¬
ulate and limit the height and bulk of
buildings hereafter erected and to regu¬
late and determine the area of yards,
courts and other open spaces; * * * to
divide the city into districts of such
number, shape and area as it may deem
best suited to carry out the purposes
of this section." Also: "The Board of
Estimate and Apportionment may regu¬
late and restrict the location of trades
and industries and the location of build¬
ings for specific uses, and may divide the
city into districts of such number, shape
and area as it may deem best suited to
carry out the purposes of this section.
For each such district regulations may
be imposed designating the trades and
industries that shall be excluded or sub¬
jected to special regulations and desig¬
nating the uses for which buildings may
be erected or altered. Such regulations
shall be designed to promote public
health, safety and general welfare. _ The
Board shall give reasonable considera¬
tion, among other things, to the char¬
acter of the district, its peculiar suita¬
bility for particular uses, the conserva¬
tion of property values and the direction
of building development in accordance
with a well-considered plan."
The Act further provides for public
hearings, official reports, publication of
notice thereof, and further hearings.
Far Reaching in Effect.
The final report was made June 2,
1916, and the resolution of the Board,
embodying the plan, which has the efifect
of a statutory enactment, was adopted
July 25, 1916. Probably no enterprise
ever undertaken under the authority of
the city government has been so com¬
prehensive and far-reaching as this, and
none that has contained such vast poten¬
tialities to influence real estate uses and
values. It is inevitable that the plan
will be subjected to the most searching
legal criticism: so that any legal opinion
concerning it, at the present time, must
necessarily relate to the system in prin¬
ciple. It is entirely possible that, even
though the system in its general outlines
may be upheld by the courts, some of
its features may be open to successful
attack.
The plan has been long under con¬
sideration by men competent to deal
with it, and it is unquestionably in har¬
mony with progressive modern opinion
as to municipal regulation and better¬
ment. And not least among the merits
claimed for it, is that of tending to stab¬
ilize real estate values. These general
aspects are alluded to here because they
are certain to have great weight in any
judicial consideration of the subject, par¬
ticularly in its constitutional bearings.
No Compensation.
If the Legislature has power to auth¬
orize the establishment of this plan, it
must necessarily be because of its so-
called "police powers" under the Con¬
stitution. The plan is not in any respect
retroactive and no attempt is made to
provide compensation for any property
rights taken or curtailed.
These "police powers" are a compara¬
tively modern development, the applica¬
tion and extension of them bsing largely
due to municipal conditions which have
arisen through the congested population
of large cities. In every State, there¬
fore, in which there are large cities there
have been numerous judicial decisions
construing various laws attempting to
give increased municipal control over
particular conditions certain to develop
where masses of population are congre¬
gated. For the present purpose, refer¬
ence will be made only to the principal
cases in this State and of the Supreme
Court of the United States, that may
have some application to the plan in
question.
The most conspicuous of the early
cases on the subject is Matter of
Jacobs (98 New York 98), which arose
under an act passed in 1884 prohibiting
the manufacture of cigars in tenement
houses. The law was assailed by emi¬
nent counsel and was held by the Court
of Appeals to be unconstitutional after
an elaborate opinion by Judge Earl, which
has since been frequeptly cited. I recall
very distinctly the interest the decision
excited at the time it was made; and
the subsequent tenement house legisla¬
tion was doubtless drawn with regard to
the principles it enunciates. It should
be read in full instead of quoted from.
Compensation Must Be Allowed.
In Forster v. Scott (136 New York
577), a section of the New York Charter,
providing that no compensation should
be allowed to the owner of land taken
for a street for any building erected
thereon after the filing of the map, was
declared unconstitutional and void. "It
is not necessary," said Judge O'Brien, "in
order to render a statute obnoxious to
the restraints of the Constitution, that it
must in terms or in effect authorize an
actual physical taking of the property or
the thing itself, so long as it affects its
free use and enjoyment, or the power
of disposition at the will of the owner.
Though the police and other powers of
government may sometimes incidentally
afifect property rights^ according to
established usages and recognized prin¬
ciples familiar to courts, yet even these
powers are not without limitations, as
they can be exercised only to promote
the public good, and are always subject
to judicial scrutiny." See also Matter
of New York City, 196 New York 259.
Pertinent Decision.
The decision of the Court of Appeals
most pertinent to the present situation is
People ex rel Kemp v. D'Oench (111
New York 359). The opinion is very
brief. Judge Earl says:
"It is provided In the Act, Chapter 451 of
the Laws of 188.5, that 'the height of all dwell¬
ing houses and ot all houses used or intended
to be used as dwellings for more than one
family thereafter to be erected In the City of
New York, shall not exceed eighty feet in
streets and avenues exceeding sixty feet in
width.' We have no doubt of the competency
ot the Legislature in the exercise ot the police
power under the Constitution to pass such an
act, and the sole question, therefore, now to
be determined is, whether the act applies to
hotels. We think it does not."
This case will no doubt be strongly
urged in support of the City Plan, par¬
ticularly in regard to limiting the height
of buildings. This feature is probably
among the least vulnerable of the entire
scheme.
A full discussion of the police powers
in their ordinary applications is con¬
tained in the opinion of Peckham, J.,
Health Department v. Rector, 145 New
York 2>2. See also People v. Havnor,
149 New York 195; Fire Department v.
Gilmour, 149 New York 453; City of
New York v. Herdje, 68 App. Div. 370;.
Powell V. City of Rochester, 93 Misc.
234; City of New York v. Foster, 148-
App. Div. 258; affirmed 205 New York
593; People v. Miller, 161 App. Div.,.
138; City of Rochester v. West, 164 New
York 510; People v. Green, 85 App. Div.
400; People ex rel Wineburgh Adv. Co.,.
V. Murphy, 195 New York 126.
Held Unconstitutional.
An Act passed in 1903 declaring a set--
back along Eastern Parkway Extension,,
in Brooklyn, but without providing for-
compensation, was held unconstitutional
in People e.x rel Dilzer v. Calder r89'
App. Div. 503). The act establishing.
Eastern Parkway with setbacks and re¬
strictions, provided for compensation,,
which was awarded and paid.
This rule has been very generally up¬
held in all the states in which cases have
arisen and by the United States Supreme
Court, in Eubank v. Richmond, 226 U.
S. 137. See Berry's Restrictions on Real
Property, Section 60.
In 1898, the Legislature of Massa¬
chusetts passed a law limiting the height
of buildings in a certain district in the
City of Boston and providing that
ovvners of buildings exceeding that
height, the construction of which had
been cominenced before January 14 of
that year, might recover damages. The
Supreme Judicial Court of Massachu¬
setts sustained the law; and, on appeal
to the Supreme Court of the United
States, the judgment was affirmed, but
only as to that phase that provided for
compensation, inasnrUch as the building
in controversy was begun before Janu¬
ary 14. "We have not considered," says
Mr. Justice Brewer, "any question of
purely State cognizance, nor have we
stopped to comment on the suggestion,
made by the Supreme Court of the
State, that this statute might be sus¬
tained as an exercise of the police power,
or if it could be so sustained, that it
could be enforced without any pro¬
vision for compensation. Considering
simply the distinct proposition so ably
presented by the counsel for plaintiflfs
in error, we are of opinion that the
statute in question cannot be adjudged!
in conflict with the Federal Constitu¬
tion." Williams v. Parker, 188 U. S..
491, 504.
This decision was rendered in 1902'.-
Five years later, in Welch v. Swasey
(193 Mass. 364), the Supreme Court of
Massachusetts enforced the suggestion:
in the prior case and declared the whole-
subject to be within the police powers..
Building Lines.
In 1912, the case of Eubank v. City
of Richmond (226 U. S. 137) came before
the United States Supreme Court, which,
decided that a municipal ordinance, auth¬
orized by . statute, requiring the city-
authorities to establish building lines in
any block on request of the owners of
two-thirds of the property was uncon¬
stitutional as an attempt to deprive the
non-assenting owners of their property
without due process of law. In de¬
livering the opinion of the Court, Mr.
Justice McKenna says: