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REAL ESTATE
AND
(Copyright, 1917, by The Record and Guide Co.)
NEW YORK, MAY 12, 1917
LIMITATIONS ON CITY PLANNING POWERS
Excerpts From Paper Reaci at National Confer¬
ence Held at Kansas City, Mo., May 7th to 9th
By EDWARD M. BASSETT
OUR courts have wisely refrained
from fixing an absolute limit to the
exercise of the police power. The scope
of the police power may increase as the
needs of communities increase. The
police power may be exercised for the
sake of health, safety, morals and the
general public convenience. The de¬
cided cases show that there has been a
constantly growing field within which
the courts will justify the exercise of the
police power, and that tlie federal courts
will uphold the Legislatures and courts
of each State so far as police powers are
concerned, unless there is a gross or
discriminatory abuse of private rights.
The decisions show no corresponding
widening of application of the power of
eminent domain.
The inclination of the courts in this
field is to limit the taking strictly to a
public use without that latitude which
obtains in Canada and European coun¬
tries. This is why it has been necessary
to amend State Constitutions for excess
condemnation. Ten years ago many
feared that every enlargement of the
historic powers of State Legislatures
under the bill of rights clauses would
need to be accomplished by constitu¬
tional amendment, the same as in excess
condemnation, and it is, therefore, grati¬
fying to note that the courts are recog¬
nizing an increased latitude of the
power, so that constitutional amend¬
ments in that field will probably be un¬
necessary.
Every modern city wishes that it
could lay out streets on the official city
map and later take title to them with¬
out paying for structures and better¬
ments that are erected after the map¬
ping. On the other hand, the private
owner deems it unjust to deprive him of
his land without payment. He may be
compelled to hold it idle for many years.
Sometimes a mapped street is changed
or entirely eliminated, and, if he has
guilt in confidence that it would be le¬
gally acquired later, he may find that he
has been put to great loss and has no
redress. The courts refuse to intermix
the condemnation of land and the police
power. Althougli the prevention of
buildings within mapped streets might be
for the general welfare, and, therefore,
within the police power, yet the courts
will not on this ground depart from the
strict rule of requiring compensation for
the taking of land for a street purpose.
This is in the field of eminent domain
and not police power. There is, how¬
ever, no objection to the requirement
that a property owner should give no¬
tice to the city that he is about to make
a building improvement within lines of
a mapped street, whereuport the city
should vest title within a certain period.
LTnder a provision of this sort a private
owner would have it within his power to
compel the city to vest title or else to
allow him to make his building improve¬
ment. If, then, the city condemned his
structure so erected, he would receive
fair compensation.
We can all remember the time when
it would have seemed absurd for a city
to restrict the height and arrangement
of buildings on private property. One
EDWARD M. BASSETT.
of the sure proofs that this was a free
country was that a man could build a
structure to any height, of any shape
and put it to any use that was not a
nuisance. A nuisance was something
that injured health or threatened dan¬
ger. Gradually it dawned on cities that
unregulated building was an injury to
the community. Skyscrapers not only
absorbed light and air tliat belonged to
other buildings, but they upset normal
values of desirable areas. In homes and
work places people lived in partial dark¬
ness. Courts and yards were insuffi¬
cient and the penalty of the generous
builder was that his open places were
exploited by his neighbor. Improper
congestion of population instead of dis¬
tribution became the rule. No city area
was immune from the sporadic tene¬
ment, factory or garage. When a trade
wanted different quarters, its members
invaded a new section, perhaps devoted
to residences or high-class retail busi¬
ness. It was precarious for a citizen to
erect an expensive private home in a
large city because his open places were
an invitation for an invasion of buildings
of a different class. Private restrictions
did not restrict and sometimes did harm.
The beginnings of building regulation
were for fire protection, closely followed
by requirements to insure safe construc¬
tion. The courts uniformly upheld these
regulations as clearly within the police
power, even if there was no specific
delegation of power in this respect bv
the State to the city. Then followed a
period during which cities sought to re¬
strict the location of livery stables and
certain offensive industries. These were
not nuisances per se, but after some
backward and forward movement of the
battle line the courts uniformly upheld
such restrictions if the power to restrict
such uses, not nuisances, per se, was do¬
nated to the city by the State and was
reasonably exercised. Tenement house
legislation became general and was rec¬
ognized by the courts as based on health
requirements.
Attempts to limit building heights or
the location of ordinary business or in¬
dustrv were frequently frowned upon by
the courts as befng based on aesthetic
considerations. Sporadic cases arose
where building heights in a small area
were limited by eminent domain, com¬
pensation being made to the private
owner. This was,^of course, extremely
unsatisfactory because no community
can afford to tax itself to enforce regu¬
lations which prevent a common injury.
Then in about 1911 came the .general in¬
sistence of great cities that building
heights must be regulated, and that dif¬
ferent localities or uses should have ap¬
propriate regulations. The case of
.1 elch V. Swasey, arising somewhat ear¬
lier in Boston, held that different height
limits can properly be placed on differ¬
ent streets. The United .States Supreme
Court said that it would not interfere
with this exercise of the police power by
a State. Within a few years many of
our great cities passed height regula¬
tions or began investigations looking to
tliat end. It became apparent to cities
tliat the courts were not hostile to
height and use regulations that were
based on the general welfare and that
were applied reasonably and without un¬
fair discrimination. Especially stimulat¬
ing was the position taken by the
United States Supreme Court that it
would uphold such State regulation and
would leave the de.gree of regulation
quite entirely to the State so long as it
was not unfairly discriminatory, or did
not amount to the actual deprivation of
property rights. This broader interpre- â–
tation so consonant with modern city
needs invited a new era of use regulation.
Cities demanded the power to fix resi¬
dential areas that might not be invaded
bv business or industries, and business
areas that might not be invaded by fac¬
tories. This is now the battle line. The
courts in California have gone so far as
to say in the now famous Hadacheck
case that the operation of a brick yard
in an area made residential by ordinance
can be terminated by law under the po¬
lice power and without compensation,
and the LTnited States Supreme Court
has upheld the decisions of the Califor¬
nia court. On the other hand, the high¬
est court in the State of Minnesota has
declared in the Lachtman case that
stores cannot be prevented in a residen¬
tial district because they do not interfere
with the health, safetv or morals of the
community. This decision was bv a ma¬
jority of one, a very strong dissenting
opinion being filed which took the ad¬
vanced ground that the general welfare
of a modern city might require the pro¬
tection of its home areas a.gainst busi¬
ness places. The majority of the court
appears to have gone out of the way to
declare that a store can be built any¬
where bv a private owner without inter¬
ference bv the State. The building per¬
mit for the store might have been up¬
held on narrower grounds, for the per¬
mit had been issued for the building in-
nuestion and work had been begun be¬
fore the ordinance was passed.
New buildings under such circum¬
stances were not prohibited under the
zoning restrictions in New \ ork City,