Columbia University Libraries Digital Collections: The Real Estate Record

Real estate record and builders' guide: [v. 99, no. 2565: Articles]: May 12, 1917

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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- ■ 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,