APPENDIX A LEGISLATION AND DECISIONS
Reading edition
I. RESTRICTIONS ON THE USE OF LAND
A. BUILDING LINES
1
Charter of the City of St. Louis. Article VI, Sect, 1.
Boulevards, Conditions for the establishment.
The Municipal Assembly may by ordinance, recommended by the Board of Public Improvements, establish and open boulevards or change existing streets into boulevards ... and may regulate the traffic thereon, and may exclude heavy driving thereon, or any kind of vehicle therefrom, and may exclude and prohibit the erection or establishment or maintenance of any business houses, or the carrying on of any business vocation on the property fronting on such boulevard, and may establish a building line to which all buildings, fences or other structures thereon shall conform.... Adequate compensation shall be allowed the owners of property fronting or bordering thereon for damages occasioned by the establishment of a building line on such boulevard, and by limiting the use to which such property may be put by the owners thereof.
2
Acts of Indiana, 1909. Chap. 89, Sect. 7.
Building lines—Cities of 100,000 or over.
The Board of Public Works may establish a line determining the distance at which all structures to be erected upon any premises fronting any park, parkway, park boulevard or boulevard shall be erected, and may, in the name of the city acquire by condemnation the right to prevent the erection of, and to require the removal of, all structures outside of such lines.... The establishing of any building line outside of any park, parkway, or boulevard, as herein provided, in connection with the condemnation of the land for the same, shall be understood to be condemnation and the perpetual annihilation of all rights of the owners of property which shall front on such park, parkway or boulevard, or across which such building line shall run, to erect any building or structure whatever or any part thereof between such building line and such boulevard, park or parkway; or such result may be accomplished by absolute condemnation of the land, with perpetual and irrevocable free license to use and occupy such land between any building line established and the outside line of such park, parkway, park boulevard or boulevard for all purposes except the erection of buildings or other structures. No subdivision into lots of any lands lying within five hundred feet of such boulevards, parks or parkways shall be valid without the approval of such board of park commissioners.
3
Revised Laws of Massachusetts. Chap. 48, Sect. 103, as amended by Chap. 572 of Acts of 1913.
Building lines in cities and towns.
If the city council of a city or if a town accepts the provisions of this section or has accepted the corresponding provisions of earlier laws, a building line not more than 40 feet distant from the exterior line of a highway or town way may be established in the manner provided for laying out ways, and thereafter no structures shall be erected or maintained between such building line and such way, except steps, windows, porticos and other usual projections appurtenant to the front wall of a building to the extent prescribed in the vote establishing such building line, and except that buildings or parts of buildings existing at the time of the establishment of the building line may be permitted to remain and to be maintained to such extent and under such conditions as may be prescribed in the vote establishing such building line. Whoever sustains damage thereby shall have the same remedies therefor as for damages sustained by the laying out of a town way.
4 House of Representatives, January 24, 1910. 61st Congress, 2d Session. H. R. 19069. (Identical with S. 5715)
A BILL providing for the establishment of building lines and special building restrictions in the District of Columbia.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Commissioners of the District of Columbia are hereby authorized and empowered from time to time and at all times hereafter by public notice by advertisement published in some newspaper or newspapers of general circulation in the said District at least once a week for three successive weeks prior to the expiration of said notice, to designate any highway or highways, street or streets, or avenue or avenues in the District of Columbia now existing or which may hereafter be created or dedicated or condemned or purchased, or any part or parts thereof, the land fronting upon which shall thereafter be subject to certain building restrictions (which restrictions said commissioners may impose, alter, amend, or modify at the time such designation is made, or at any time or times thereafter), and the said highways, streets, or avenues, or part or parts thereof so designated shall be classed as Class A streets, and all other highways, streets, and avenues, or part or parts thereof shall be classed as Class B streets, and it shall be the duty of the said commissioners, and especially of the engineer commissioner, to give preference, in their discretion, to Class A streets in all recommendations and estimates for street improvements, and in all matters of sidewalk construction, laying of curbs, and the maintenance of the surface of the streets. And said commissioners are hereby further authorized and empowered in making, altering, amending, or modifying said special restrictions to include in whole or in part the establishment of building lines, prohibitions as to the erection or alteration of buildings designed or proposed to be used for business purposes, prohibitions as to the establishment of any place of business, and such requirements as to height of buildings, materials of construction, and architectural design as shall secure, in the judgment of said commissioners, the beautiful and harmonious appearance, as viewed from the public streets, of all structures to be erected or altered on the land to which said restrictions shall apply: Provided, That no such designation shall be made unless the owners of ninety per centum, or more, measured by the front foot, of the property fronting upon the street, avenue, or part or parts thereof under consideration shall in due form have dedicated, or granted, or conveyed, or assigned to the District of Columbia, in consideration of benefits received or to be received, easements in, to, and upon their property by virtue of which said special restrictions may be established: Provided further, That the Commissioners of the District of Columbia may exercise their judgment as to whether such special restrictions shall cover only the ninety per centum or more of frontage, the owners of which have conveyed easements as above provided, or, in addition to such frontage, any portion of the remaining property fronting on the highway, street, or avenue, or part or parts thereof under consideration.
Sect. 2. That if said commissioners in the exercise of their judgment shall designate highways, streets, or avenues, or any part or parts thereof, and shall impose any special restrictions authorized by this Act so as to include property fronting on any such highway, street, or avenue which has not been dedicated or granted or conveyed or assigned to the District of Columbia, then, at any time within one year from the date of any such designation, and not thereafter, the owner or owners thereof, or any person having an interest therein, may recover as damages just compensation from the District of Columbia for the taking, if any, of the easements involved in said designation, subject to deduction for benefits; and said damages and benefits and all benefits herein mentioned shall be appraised by a commission composed of three capable and disinterested persons, to be appointed by the supreme court of the District of Columbia, holding a district court of the United States for said District, upon application, in writing, made within said year and not thereafter by such owner or owners or person having an interest against the District of Columbia; and upon failure of any such owner or owners or person having said interest to thus present such claim within said period, said right shall cease and determine.
Sect. 3. That the Commissioners of the District of Columbia be, and they are hereby, authorized and directed, as soon as practicable after every recovery of damages as just compensation as in this Act provided, to institute proceedings in said court to assess the amount of said damages, the interest thereon, and all costs whatsoever of the proceeding wherein the said damages have been ascertained against and upon all property covered by said designation, pro rata in proportion as said property may be found to be benefited, omitting from consideration all property found by the court in the proceeding to recover said damages as just compensation to have been damaged than more benefited.
Sections 4-7 inclusive relate to the procedure in assessing benefits.
Sect. 8. That the Commissioners of the District of Columbia are hereby authorized to appoint an advisory commission to consist of the inspector of buildings of the District of Columbia, the municipal architect of said District, two architects to be nominated by the Washington Chapter of the American Institute of Architects, and a landscape gardener, the two first named officials to serve without compensation and the other members of said commission to receive such compensation as may be fixed, from time to time, by said commissioners. The duties of said commission shall be to advise said commissioners in all matters connected with the purposes of this Act, and to perform such other duties as may be assigned to it by said commissioners.
Sect. 9. That the sum of fifteen thousand dollars, or so much thereof as may be necessary, is hereby appropriated, one half out of the revenues of the District of Columbia, and the other half out of any moneys in the United States Treasury not otherwise appropriated, to carry out the provisions of this Act.
Sect. 10. That it shall be the duty of all owners of, and persons and corporations interested in, any property fronting upon any highway, street, avenue, or part or parts thereof, designated or made subject to any special restriction, or on which any easement or right is taken or imposed by virtue of this Act, to comply, in every case, with such designation and restriction, and in event any such owner, person, or corporation, after notice from the Commissioners of the District of Columbia so to do, shall fail, neglect, or refuse to comply as aforesaid, the said commissioners are hereby authorized and empowered, in the name of the District of Columbia, by proceedings in equity in the supreme court of the District of Columbia, to obtain, without giving any bond or security whatsoever in such case at any time or in any court, an injunction or other proper process, mandatory or otherwise, to compel such compliance; and in the enforcement of such process the court shall have those powers ordinarily exercised by it in compelling obedience to its writs of injunction or mandamus; and the issuance of any notice as aforesaid by said commissioners shall be prima facie evidence of the right of the District of Columbia to a preliminary injunction on the filing of any bill, petition, or other proceeding; and the said court shall give precedence to every such case and shall adjudge and decide the same within thirty days after said case shall have been submitted; and the opinion of said court in every such case shall be rendered in writing and shall be filed in such case as a part of the record thereof.
B. BUILDING HEIGHTS
1 Acts of Massachusetts, 1898. (Chap. 452)
AN ACT relative to the height of buildings on and near Copley Square in the city of Boston.
Section 1. Any building now being built or hereafter to be built, rebuilt, or altered in the city of Boston upon any land abutting on St. James Avenue between Clarendon Street and Dartmouth Street, or upon land at the corner of Dartmouth Street and Huntington Avenue, now occupied by the Pierce Building, so called, or upon land abutting on Dartmouth Street now occupied by the Boston Public Library building, or upon land at the corner of Dartmouth Street and Boylston Street now occupied by the New Old South Church building, may be completed, built, rebuilt, or altered to the height of ninety feet and no more; and upon any land or lands abutting on Boylston Street between Dartmouth Street and Clarendon Street may be completed, built, rebuilt, or altered to the height of one hundred feet and no more; provided, however, that there may be erected on any such building above the limits hereinbefore prescribed, such steeples, towers, domes, sculptured ornaments, and chimneys as the board of park commissioners of said city may approve. Section 2 repeals St. 1896, c. 313, and St. 1897, c. 379, so far as they limit the height of buildings erected along the line of streets, parkways, or boulevards bordering on public parks. Section 3 provides for the payment of damages to any person owning or having an interest in an uncompleted building begun before the fourteenth day of January, 1898, which is affected by the act, and Section 4 provides for compensation to all persons sustaining damages to their property by reason of the limitation of the height of buildings prescribed by the act.
2 Attorney General vs. Henry B. Williams et als. 174 Mass. 476. 1899.
Information in equity by the attorney general to restrain the erection and maintenance of a building on Copley Square in Boston above the height of ninety feet prescribed by statute 1898, c. 452, entitled “An act relative to the height of buildings on and near Copley Square in the city of Boston.”
Knowlton, J. ... The first question raised by the report is whether the statute is constitutional. The streets mentioned in the statute are adjacent to Copley Square. On the case as now presented we must assume that Copley Square, in the language of the information, “is an open square and a public park intended for the use, benefit and health of the public, and is surrounded by buildings devoted to religious, charitable, and educational purposes, some of which contain books, manuscripts and works of art of great value, many of which are in their nature irreplaceable.”
... It adds to the public park rights in light and air and in the view over adjacent land above the line to which buildings may be erected. These rights are in the nature of an easement created by the statute and annexed to the park. Ample provision is made for compensation to the owners of the servient estates. In all respects the statute is in accordance with the laws regulating the taking of property by right of eminent domain, if the Legislature properly could determine that the preservation or improvement of the park in this particular was for a public use. 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. It is only within a few years that lands have been taken in this country for public parks. Now the right to take land for this purpose is generally recognized and frequently exercised.... It hardly would be contended that the same reasons which justify the taking of land for a public park do not also justify the expenditure of money to make the park attractive and educational to those whose tastes are being formed and whose love of beauty is being cultivated.... It is argued by the defendants that the Legislature, in passing this statute, was seeking to preserve the architectural symmetry of Copley Square. If this is a fact, and if the statute is merely for the benefit of individual property owners, the purpose does not justify the taking of a right in land against the will of the owner. But if the Legislature, for the benefit of the public, was seeking to promote the beauty and attractiveness of a public park in the capital of the Commonwealth and to prevent unreasonable encroachments upon the light and air which it had previously received, we cannot say that the law-making power might not determine that this was a matter of such public interest as to call for an expenditure of public money, and to justify the taking of private property. While such a determination should not be made without careful consideration, and while the governing tendency towards an enlargement of the field of public expenditure should be jealously watched and carefully held in check, a determination of this kind once made by the Legislature cannot be lightly set aside.
3 Acts of Massachusetts, 1904. Chap. 333.
AN ACT relative to the height of buildings in the city of Boston
Section 1. The city of Boston shall be divided into districts of two classes, to be designated districts A and B. The boundaries of the said districts, established as hereinafter provided, shall continue for a period of fifteen years, and shall be determined in such manner that those parts of the city in which all or the greater part of the buildings situate therein are at the time of such determination used for business or commercial purposes shall be included in the district or districts designated A, and those parts of the city in which all or the greater part of the buildings situate therein are at the said time used for residential purposes or for other purposes not business or commercial shall be in the district or districts designated B.
Section 2. Upon the passage of this act the mayor of the city shall appoint a commission of three members, to be called “Commission on Height of Buildings in the City of Boston.” The commission shall immediately upon its appointment give notice and public hearings, and shall make an order establishing the boundaries of the districts aforesaid, and, within one month after its appointment, shall cause the same to be recorded in the registry of deeds for the county of Suffolk. The boundaries so established shall continue for a period of fifteen years from the date of the said recording. Any person who is aggrieved by the said order may, within thirty days after the recording thereof, appeal to the commission for a revision; and the commission may, within six months after its appointment, revise such order, and the revision shall be recorded in the registry of deeds for the county of Suffolk, and shall date back to the original date of recording. The members of the commission shall serve until the districts have been established as aforesaid; and any vacancy in the commission caused by resignation, death or inability to act shall be filled by the mayor, on written application by the remaining members of the commission or of ten inhabitants of the city. The members of the commission shall receive such compensation as the mayor shall determine.
Section 3. In the city of Boston no building shall be erected to a height of more than one hundred and twenty-five feet above the grade of the street in any district designated A, and no building shall be erected to a height of more than eighty feet above the grade of the street in any district designated B. These restrictions shall not apply to grain or coal elevators or sugar refineries in any district designated A, nor to steeples, domes, towers or cupolas erected for strictly ornamental purposes, of fireproof material, on buildings of the above height or less in any district.
The supreme judicial court and the superior court shall each have jurisdiction in equity to enforce the provisions of this act, and to restrain the violation thereof.
Section 4. This act shall take effect upon its passage.
Approved May 13, 1904.
4 Acts of Massachusetts, 1905. Chap. 363.
AN ACT relative to the height of buildings in the city of Boston
Section 1. Within thirty days after the passage of this act the mayor of the city of Boston shall appoint a commission of three members to determine, in accordance with the conditions hereinafter provided, the height of buildings within the district designated by the commission on height of buildings in the city of Boston as district B, in accordance with chapter three hundred and thirty-three of the acts of the year nineteen hundred and four.
Section 2. Said commission shall immediately upon its appointment give notice and public hearings, and shall make an order establishing the boundaries of or otherwise pointing out such parts, if any, of said district B as it may designate in which buildings may be erected to a height exceeding eighty feet but not exceeding one hundred feet, and the height between eighty feet and one hundred feet to which buildings may so be erected, and the conditions under which buildings may be erected to said height, except that such order may provide for the erection of buildings as aforesaid to a height not exceeding one hundred and twenty-five feet in that portion of said district B which lies within fifty feet from the boundary line separating said district B from the district designated by the commission on height of buildings in the city of Boston as district A in accordance with said chapter three hundred and thirty-three, provided said boundary line divides the premises affected by such order from other adjoining premises both owned by the same person or persons, and within sixty days after its appointment shall cause the same to be recorded in the registry of deeds for the county of Suffolk. Any person who is aggrieved by such order may, within sixty days after the recording thereof, appeal to the commission for a revision; and the commission may, previous to the first day of January in the year nineteen hundred and six, revise such order, and the revision shall be recorded in the registry of deeds for the county of Suffolk and shall date back to the original date of recording. The boundaries so established shall continue for a period of fifteen years from the date of the recording of the order made by the commission on height of buildings in the city of Boston under chapter three hundred and thirty-three of the acts of the year nineteen hundred and four. The members of the commission shall receive such compensation as the mayor shall determine.
Section 3. Within such parts of district B as may be designated by the commission as aforesaid (which may, except as hereinafter provided, include any parts of said district B affected by prior acts limiting the height of buildings) buildings may be erected to the height fixed by the commission as aforesaid, exceeding eighty feet but not exceeding one hundred feet, or one hundred and twenty-five feet as hereinbefore provided, and subject to such conditions as may be fixed as aforesaid by the commission; but within the following described territory, to wit:—Beginning at the corner of Beacon street and Hancock avenue, thence continuing westerly on Beacon street to Joy street, thence continuing northerly on Joy street to Myrtle street, thence continuing easterly on Myrtle street to Hancock street, thence continuing southerly on Hancock street and Hancock avenue to the point of beginning, no building shall be erected to a height greater than seventy feet, measured on its principal front, and no building shall be erected on a parkway, boulevard or public way on which a building line has been established by the board of park commissioners or by the board of street commissioners, acting under any general or special statute, to a greater height than that allowed by the order of said boards; and no building upon land any owner of which has received and retained compensation in damages for any limitation of height or who retains any claim for such damages shall be erected to a height greater than that fixed by the limitation for which such damages were received or claimed.
Section 4. No limitations of the height of buildings in the city of Boston shall apply to churches, steeples, towers, domes, cupolas, belfries or statuary not used for purposes of habitation, nor to chimneys, gas holders, coal or grain elevators, open balustrades, skylights, ventilators, flagstaffs, railings, weather vanes, soil pipes, steam exhausts, signs, roof houses not exceeding twelve feet square and twelve feet high, nor to other similar constructions such as are usually erected above the roof line of buildings.
Section 5. This act shall take effect upon its passage.
Approved May 8, 1905.
5 Welch vs. Swasey. 193 Mass. 364
This was a petition for a writ of mandamus addressed to members of the board of appeal from the building commissioner of the city of Boston, ordering the respondents to direct the building commissioner to grant to the petitioners a permit to erect a building to the height of 120 feet, 6 inches. The permit had been refused by the building commissioner on the ground that the proposed structure would exceed the height limit provided by acts 1904, chapter 333, and acts 1905, chapter 383. The petitioners appealed on the ground that the statutes were unconstitutional and void.
The commission appointed by the mayor under chapter 383 of the acts of 1905, made the following orders: (1) In district B buildings may be erected on streets exceeding 64 feet in width to a height equal to one and a quarter times the width of the street on which the building stands, and if situated on more than one street the widest street should be taken, and the height of the building is to be made from the mean grade of the curbs of all streets upon which the building is situated, and not exceeding one hundred feet in any of them. (2) If the street is of uneven width, its width will be considered as the average width opposite the building to be erected. (3) The width of a street shall be held to include the width of any space on the same side of the street upon which a building stands, upon or within which space no building can be lawfully erected by virtue of any building line established by the board of street commissioners, or the board of park commissioners, acting under general or special laws. (4) All streets or portions of streets upon which buildings may be erected on one side only shall be considered as of a width of 80 feet as to that portion upon which building may be erected on one side only. (5) In the case of irregular or triangular open spaces formed by the intersection of streets, the width of the street shall be taken as the width of the widest street entering said space at the point of entrance. (6) No building shall be erected on a parkway, boulevard or public way on which a building line has been established by either of said boards acting under general or special laws to a height greater than allowed by said general or special law nor otherwise in violation of section 3 of said chapter 383, acts of 1905. (7) No building shall be erected to a height greater than eighty feet unless its width on each and every public street on which it stands will be at least one half its height. (8) Nothing in the order shall be construed as affecting any condition or restriction imposed by deed, agreement or by operation of law on any property in said district B.
The said commission further provides that buildings may be erected to a height not exceeding 120 feet in that portion of district B as established by the commission on the height of buildings in its order dated Dec. 3, 1904, which lies 50 feet westerly from the boundary line running from Columbus Av. to the center of Boylston St. separating district B from district A provided that said portion of district B is owned by same persons who own adjoining premises in district A.
Knowlton, C. J.: The principal question presented by this case is whether St. 1904, p. 283, c. 333, and St. 1905, p. 309, c. 383, and the orders of the commissioners appointed under them, relative to the height of buildings in Boston, are constitutional. A jurisdictional question, if the petitioner is entitled to relief, is whether a remedy can be given him by a writ of mandamus.
The principal question may be subdivided as follows: First, can the Legislature, in the exercise of the police power, limit the height of buildings in cities so that none can be erected above a prescribed number of feet; second, can it classify parts of a city so that in some parts one height is prescribed and in others a different height; third, if so, can it delegate to a commission the determination of the boundaries of these different parts, so as to conform to the general provisions of the statute; fourth, can it delegate to a commission the making of rules and regulations such as to permit different heights in different places, according to the different conditions in different parts of one of the general classes of territory, made in the original statute; fifth, if it can, are the rules and regulations made by the commissioners within the statute, and within the constitutional authority of the Legislature and its agents?
In the exercise of the police power the Legislature may regulate and limit personal rights and rights of property in the interest of the public health, public morals and public safety. Com. vs. Pear, 153 Mass. 242, 63 N. E. 719; Com. vs. Strauss, 191 Mass. 545, 78 N. E. 136; California Reduction Co. vs. Sanitary Works, 199 U. S. 306-318, 26 Sup. Ct. 100, 50 L. Ed. 204. With considerable strictness of definition, the general welfare may be made a ground, with others, for interference with rights of property, in the exercise of the police power. Com. vs. Strauss, ubi supra.
The erection of very high buildings in cities, especially upon narrow streets, may be carried so far as materially to exclude sunshine, light and air, and thus to affect the public health. It may also increase the danger to persons and property from fire, and be a subject for legislation on that ground. These are proper subjects for consideration in determining whether in a given case, rights of property in the use of land should be interfered with for the public good.... In People vs. D’Oench, 111 N. Y. 359, 18 N. E. 562, a statute limiting the height of dwelling houses to be erected in the city of New York, was treated as unquestionably constitutional. See 1 Abbott, Mun. Corp. 237, 2 Tiedeman on State and Federal Control, 754....
... It is for the Legislature to determine whether the public health or public safety requires such a limitation of the rights of land owners in a given case. Upon a determination in the affirmative, they may legislate accordingly.
The next question is whether the General Court may establish different heights for different neighborhoods, according to their conditions and the uses to which the property in them is put. The statute should be adapted to the accomplishment of the purposes in which it finds its constitutional justification. It should be reasonable, not only in reference to the interests of the public, but also in reference to the rights of land owners. If these rights and interests are in conflict in any degree, the opposing considerations should be balanced against each other, and each should be made to yield reasonably to those upon the other side. The value of land and the demand for space, in those parts of Boston where the greater part of the buildings are used for purposes of business or commerce, is such as to call for buildings of greater height than are needed in those parts of the city where the greater part of the buildings are used for residential purposes. It was, therefore, reasonable to provide in the statute that buildings might be erected to a greater height in the former parts of the city than in the latter, even if some of the streets in the former are narrower than those in the latter.
The general subject is one that calls for a careful consideration of conditions existing in different places. In many cities there would be no danger of the erection of high buildings in such locations and of such a number as to affect materially the public health or safety, and no statutory restrictions are necessary. Such restrictions in this country are of very recent origin, and they are still uncommon. Unless they place the limited height at an extreme point, beyond which hardly any one would ever wish to go, they should be imposed only in reference to the uses for which the real estate probably will be needed, and the manner in which the land is laid out, and the nature of the approaches to it.
It was decided in Com. vs. Boston Advertising Company, 188 Mass. 348, 74 N. E. 601, 69 L. R. A. 817, 103 Am. St. Rep. 494, that a statute of this kind cannot constitutionally be passed for a mere esthetic object. It was said in Attorney General vs. Williams, 174 Mass. 476-480, 55 N. E. 77, that the statute then before the court, enacted under the right of eminent domain, with compensation for landowners, would have been unconstitutional if it had been passed “to preserve the architectural symmetry of Copley Square,” or “merely for the benefit of individual landowners.” The inhabitants of a city or town cannot be compelled to give up rights in property, or to pay taxes, for purely æsthetic objects; but if the primary and substantive purpose of the legislation is such as justifies the act, considerations of taste and beauty may enter in, as auxiliary. We are of opinion that the provision of St. 1904, p. 283, c. 333, for dividing parts of the city into two classes, in each of which there is a prescribed limit for the height of buildings, was within the power of the Legislature, and in accordance with the constitutional principle applicable to the enactment.
The delegation to a commission of the determination of the boundaries of these parts of the two classes was within the constitutional power of the General Court. The work of the commissioners under the first act was not legislation, but the ascertainment of facts, and the application of the statute to them for purposes of administration. Such subsidiary work by a commission is justified in many cases.
The delegation to a commission of the power to fix different heights in different places in the parts included in class B, under St. 1905, p. 309, c. 363, goes further, and allows the commissioners to make rules and regulations which are in the nature of subsidiary legislation. This is within the principle referred to in Brodbine vs. Revere, ubi supra, and in some of the other cases above cited. It is that under our system in Massachusetts, matters of local self-government might always be intrusted to the inhabitants of towns. On the establishment of cities this power is exercised by the city council, or by some board or commission representing the inhabitants. Even in towns such powers have long been exercised by local boards, for example,—by the board of health. Originally such representatives of the local authority were elected by the people; but for many years local boards, appointed by the governor or other executive authority, have sometimes been entrusted with the exercise of this legislative authority. It is true that they are further from the people than the members of a city council, for whom the people vote, but in a true sense they represent the inhabitants in matters of this kind. Our decisions cover this point also. Com. vs. Plaisted and Brodbine vs. Revere, ubi supra. It does not follow that all rules and regulations made under such a delegation of authority would be constitutional, merely because the original statute is unobjectionable. Such rules may be tested by the courts to see whether they are reasonably directed to the accomplishment of the purpose on which the constitutional authority rests, and whether they have a real, substantial relation to the public objects which the government can accomplish. A statute, ordinance or regulation will not be held void merely because the judges differ from the legislators as to the expediency of its provisions. But if it is arbitrary and unreasonable, so as unnecessarily to be subversive of rights of property, it will be set aside by the courts....
We do not see that the action of the commissioners, under St. 1905, was beyond their power under the Constitution. It was seemingly in accordance with the general purpose of the Legislature, and was directed to considerations which they deemed proper in adjusting the rights and interests of property owners and the public. The question is not whether the court deems all the provisions wise; but whether they appear to be outside of the constitutional power of the commission. In prescribing heights in the district, the commissioners might make the width of the streets on which a building was to be erected one factor to be considered. Their action in this particular relates wholly to buildings in class B, which includes only the residential parts of the city.
We cannot say that the prohibition of the erection of a building of a greater height than 80 feet in class B, unless its width “on each and every public street on which it stands will be at least one-half its height,” was entirely for æsthetic reasons. We conceive that the safety of adjoining buildings, in view of the risk of the falling of walls after a fire, may have entered into the purpose of the commissioners. We are of opinion that the statutes and the orders of the commissioners are constitutional.
We think that the court has jurisdiction to dispose of the case in the merits, under this petition for a writ of mandamus. The wrong alleged is that the building commissioner, and afterwards the board of appeal, refused to give the petitioner a permit to erect a building. It is conceded that he was not entitled to a permit if the statutes and orders referred to are constitutional. The petitioner alleges that the board of appeal refused to do their duty, and that his only effectual remedy is by a writ of mandamus, ordering them to grant a permit. The case comes within the general rule giving jurisdiction to issue such writs. Farmington River Water Power vs. County Commissioners, 112 Mass. 206-212; Carpenter vs. County Commissioners, 21 Pick. 258-259; Attorney General vs. Boston, 123 Mass. 460. See Locke vs. Selectmen of Lexington, 122 Mass. 290; Attorney General vs. Northampton, 143 Mass. 589, 10 N. E. 450.
The building commissioner and the board of appeals are not judicial officers. St. 1892, p. 471, c. 419; St. 1894, p. 494, c. 443. The fact that a refusal to act is founded on a mistake of law does not preclude a remedy by a writ of mandamus. In cases where the duty to perform an act depends solely on the question whether a statute or ordinance is constitutional and valid, the question may sometimes be determined on a petition for a writ of mandamus. Attorney General vs. Boston, 123 Mass. 450; Warren vs. Charlestown, 2 Gray, 84; Larcom vs. Olin, 160 Mass. 102-110, 35 N. E. 113.
Petition dismissed.
6 Welch, Trustee, vs. Swasey, et al. 29 U. S. Supreme Court Reporter. 567, Oct., 1908
In error to the Supreme Judicial Court of the State of Massachusetts to review a judgment denying a mandamus to compel the board of appeal from the building commissioner of the city of Boston to issue a building permit. Affirmed.
Statement by Mr. Justice Peckham:
The plaintiff in error duly applied to the justices of the supreme judicial court of the state of Massachusetts for a mandamus against the defendants, who constitute a board of appeal from the building commissioner of the city of Boston, to compel the defendants to issue a permit to him to build on his lot on the corner of Arlington and Marlborough streets, in that city. The application was referred by the justice presiding to the full court, and was by it denied (193 Mass. 364, 118 Am. St. Rep. 523, 79 N. E. 745), and the plaintiff has brought the case here by writ of error.
The action of defendants in refusing the permit was based on the statutes of Massachusetts, chap. 333 of the Acts of 1904, and chap. 383 of the Acts of 1905. The reason for the refusal to grant the building permit was because the building site for the proposed building was situated in one of the districts B, as created under the provisions of the acts mentioned, in which districts the height of the buildings is limited to 80, or, in some cases, to 100 feet, while the height of buildings in districts A is limited to 125 feet. The height of the building which plaintiff in error proposed to build and for which he asked the building permit was stated by him in his application therefor to be 124 feet, 6 inches.
The designation of what parts in districts B and upon what conditions a building could be therein erected more than 80 while not more than 100 feet high was to be made by a commission, as provided for in the act of 1905, and the commission duly carried out the provisions of the act in that respect. The sole reason for refusing the permit was on account of the proposed height of the building being greater than the law allowed.
The plaintiff in error contended that the defendants were not justified in their refusal to grant the permit, because the statutes upon which their refusal was based were unconstitutional and void; but he contended that, if they were valid, the defendants were justified in their refusal.
The court, while deciding that mandamus was a proper remedy, held that the statutes and the reports of the commissions thereunder were constitutional.
Mr. Justice Peckham delivered the opinion of the court:
The ground of objection of plaintiff in error to this legislation is that the statutes unduly and unreasonably infringe upon his constitutional rights (a) as to taking of property without compensation; (b) as to denial of equal protection of the laws.
Plaintiff in error refers to the existence of a general law in Massachusetts, applicable to every city therein, limiting the height of all buildings to 125 feet above the grade of the street (Acts of 1891, Chap. 355), and states that he does not attack the validity of that act in any respect, but concedes that it is constitutional and valid. See also on same subject. Acts of 1892, Chap. 419, Par. 25, making such limitation as to the city of Boston. His objection is directed to the particular statutes because they provide for a much lower limit in certain parts of the city of Boston, to be designated by a commission, and because a general restriction of height as low as 80 or 100 feet over any substantial portion of the city is, as he contends, an unreasonable infringement upon his rights of property; also that the application of those limits to districts B, which comprise the greater part of the city of Boston, leaving the general 125-feet limit in force in those portions of the city which the commission should designate (being the commercial districts), is an unreasonable and arbitrary denial of equal rights to the plaintiff in error and others in like situation.
Stating his objections more in detail, the plaintiff in error contends that the purposes of the acts are not such as justify the exercise of what is termed the police power, because, in fact, their real purpose was of an esthetic nature, designed purely to preserve architectural symmetry and regular sky lines, and that such power cannot be exercised for such a purpose. It is further objected that the infringement upon property rights by these acts is unreasonable and disproportioned to any public necessity, and also that the distinction between 125 feet for the height of buildings in the commercial districts described in the acts, and 80 to 100 feet in certain other or so-called residential districts, is wholly unjustifiable and arbitrary, having no well-founded reason for such distinction, and is without the least reference to the public safety, as from fire, and inefficient as means to any appropriate end to be attained by such laws.
In relation to these objections the counsel for the plaintiff in error, in presenting his case at bar, made a very clear and able argument.
Under the concession of counsel, that the law limiting the height of building to 125 feet is valid, we have to deal only with the question of the validity of the provisions stated in these statutes and in the conditions provided for by the commissions, limiting the height in districts B between 80 and 100 feet.
We do not understand that the plaintiff in error makes the objection of illegality arising from an alleged delegation of legislative power to the commissions provided for by the statutes. At all events, it does not raise a Federal question. The state court holds that kind of legislation to be valid under the state Constitution, and this court will follow its determination upon that question.
We come, then, to an examination of the question whether these statutes with reference to limitations on height between 80 and 100 feet, and in no case greater than 100 feet, are valid. There is here a discrimination of classification between sections of the city, one of which, the business or commercial part, has a limitation of 125 feet, and the other, used for residential purposes, has a permitted height of buildings from 80 to 100 feet.
The statutes have been passed under the exercise of so-called police power, and they must have some fair tendency to accomplish, or aid in the accomplishment of, some purpose for which the legislature may use the power. If the statutes are not of that kind, then their passage cannot be justified under that power. These principles have been so frequently decided as not to require the citation of many authorities. If the means employed, pursuant to the statute, have no real, substantial relation to a public object which government can accomplish, if the statutes are arbitrary and unreasonable, and beyond the necessities of the case, the courts will declare their invalidity.
In passing upon questions of this character as to the validity and reasonableness of a discrimination or classification in relation to limitations as to height of buildings in a large city, the matter of locality assumes an important aspect. The particular circumstances prevailing at the place or in the state where the law is to become operative,—whether the statute is really adapted, regard being had to all the different and material facts, to bring about the results desired from its passage; whether it is well calculated to promote the general and public welfare,—are all matters which the state court is familiar with; but a like familiarity cannot be ascribed to this court, assuming judicial notice may be taken of what is or ought to be generally known. For such reason this court, in cases of this kind, feels the greatest reluctance in interfering with the well-considered judgments of the courts of a state whose people are to be affected by the operation of the law. The highest court of the state in which statutes of the kind under consideration are passed is more familiar with the particular causes which led to their passage (although they may be of a public nature) and with the general situation surrounding the subject-matter of the legislation than this court can possibly be. We do not, of course, intend to say that, under such circumstances, the judgment of the state court upon the question will be regarded as conclusive, but simply that it is entitled to the very greatest respect, and will only be interfered with, in cases of this kind, where the decision is, in our judgment, plainly wrong. In this case the supreme judicial court of the state holds the legislation valid, and that there is a fair reason for the discrimination between the height of buildings in the residential as compared with the commercial districts. That court has also held that regulations in regard to the height of buildings, and in regard to their mode of construction in cities, made by legislative enactments for the safety, comfort, or convenience of the people, and for the benefit of property owners generally, are valid. Atty. Gen. vs. Williams (Knowlton vs. Williams) 174 Mass. 476, 47 L. R. A. 314, 55, N. E. 77. We concur in that view, assuming, of course, that the height and conditions provided for can be plainly seen to be not unreasonable or inappropriate.
In relation to the discrimination or classification made between the commercial and the residential portion of the city, the state court holds in this case that there is reasonable ground therefor, in the very great value of the land and the demand for space in those parts of Boston where a greater number of buildings are used for the purposes of business or commercially than where the buildings are situated in the residential portion of the city, and where no such reasons exist for high buildings. While so deciding, the court cited, with approval. Com. vs. Boston Advertising Co. 188 Mass. 348, 69 L. R. A. 517, 108 Am. St. Rep. 494, 74 N. E. 601; which holds that the police power cannot be exercised for a merely esthetic purpose. The court distinguishes between the two cases, and sustains the present statutes. As to the condition adopted by the commission for permitting the erection, in either of the districts B, that is, the residential portion, of buildings of over 80 feet, but never more than 100, that the width on each and every public street on which the building stands shall be at least one half its height, the court refuses to hold that such condition was entirely for esthetic reasons. The chief justice said: “We conceive that the safety of adjoining buildings, in view of the risk of the falling of walls after a fire, may have entered into the purpose of the commissioners. We are of opinion that the statutes and the orders of the commissioners are constitutional.”
We are not prepared to hold that this limitation of 80 to 100 feet, while in fact a discrimination or classification, is so unreasonable that it deprives the owner of the property of its profitable use without justification, and that he is therefore entitled under the Constitution to compensation for such invasion of his rights. The discrimination thus made is, as we think, reasonable, and is justified by the police power.
It might well be supposed that taller buildings in the commercial section of the city might be less dangerous in case of fire than in the residential portion. This court is not familiar with the actual facts, but it may be that, in this limited commercial area, the high buildings are generally of fireproof construction; that the fire engines are more numerous and much closer together than in the residential portion, and that an unlimited supply of salt water can be more readily introduced from the harbor into the pipes, and that few women or children are found there in the daytime, and very few people sleep there at night. And there may, in the residential part, be more wooden buildings, the fire apparatus may be more widely scattered, and so situated that it would be more difficult to obtain the necessary amount of water, as the residence quarters are more remote from the water front, and that many women and children spend the day in that section, and the opinion is not strained that an undiscovered fire at night might cause great loss of life in a very high apartment house in that district. These are matters which, it must be presumed, were known by the legislature, and whether or not such were the facts was a question, among others, for the legislature to determine. They are asserted as facts in the brief of the counsel for the city of Boston. If they are, it would seem that ample justification is therein found for the passage of the statutes, and that the plaintiff in error is not entitled to compensation for the reasonable interference with his property rights by the statutes. That, in addition to these sufficient facts, considerations of an esthetic nature also entered into the reasons for their passage, would not invalidate them. Under these circumstances there is no unreasonable interference with the rights of property of the plaintiff in error, nor do the statutes deprive him of the equal protection of the laws. The reasons contained in the opinion of the state court are, in our view, sufficient to justify their enactment. The judgment is therefore affirmed.
7 ABSOLUTE HEIGHT LIMITATIONS
Baltimore, Md. 175 feet.
Boston 125 ft. or 2½ times width of widest street on which building fronts in section.
80 ft. in residence section.
Charleston, S. C. 125 ft. or 2½ times width of widest street, as in Boston.
Chicago 200 ft.
Cleveland 200 ft. or 2½ times width of widest street, as in Boston.
Erie, Pa. 200 ft. or 2½ times width of widest street, as in Boston.
Los Angeles 150 ft.
Manchester, N. H. 125 ft.
Newark, N. J. 200 ft.
Portland, Oregon 160 ft.
Scranton, Pa. 125 ft.
Worcester, Mass. 125 ft.
Denver, Colo. 12 stories.
Providence, R. I. 120 ft.
C. “SURVEY LINES”
FURMAN ST. 17 Wendell (N. Y.) 649. 1836
By a law of April 12, 1816, section 18, a survey of the village of Brooklyn was to be made and the resulting map was to constitute a permanent plan for laying out the streets of Brooklyn. The act provided that owners who violated the plan were not to receive damages.
The court, in upholding this provision, found that unless damages were withheld from owners building in designated lines of streets, section 18 of the act would be nugatory. The legislation clearly intended that improvements within the street lines should not be paid for. “By expensive erections an owner otherwise might bring an enormous burden upon others for opening the street.”
This decision was cited with approval and followed in the case of Re Dist. of City of Pittsburgh, decided in 1841, 2 W. & S. 320. This language is found in the opinion: “The mere laying out of streets cannot be said of itself to be a taking of the property of individuals, upon which they are laid out, for public use at some future day, but rather a designation of what may be required for that purpose thereafter, so that the owners of the property may in due time be fully apprised of what is anticipated and regulate the subsequent improvements, which they shall make thereon accordingly.
... Until the actual opening “the owners thereof continue not only to hold the same interest in them, but likewise to have the right to enjoy and in the same manner as they did previously.”
In the case of Bush vs. McKeesport, City, 166 Pa. 57, the court upheld the validity of the following clause: “No person shall hereafter be entitled to recover any damages for any buildings or the improvements of any kind which shall or may be placed or constructed upon or within the lines of any located street or alley, after the same shall have been located or ordered by counsel.”
But the New York court has since come to a different conclusion in the case of Forster vs. Scott, 136 App. Div. 577, and the Massachusetts court has also found against the constitutionality of such a provision. In Forster vs. Scott, the plaintiff had given a deed to the defendant warranting against incumbrances. A proposed street was located on the plaintiff’s land. The court held that this was not an incumbrance since the act of 1882, chapter 419 was unconstitutional in providing that “No compensation shall be allowed for any building, erection or construction which at any time, subsequent to the filing of the maps, plans, etc., may be built in part or in whole upon or through any street, avenue, road, public square, or place.”
“Whenever a law deprives the owner of the beneficial use and free enjoyment of his property, or imposes restraints upon such use and enjoyment that materially affect its value without legal process or compensation it deprives him of his property within the meaning of the constitution.”
Edwards vs. Bruorton, 184 Mass. 529
Knowlton, C. J.
“This is an action for breach of a covenant in a deed. A public street called Jersey Street was laid out by the street commissioners of Boston over a part of the premises under authority of statute 1891, c. 323, and the existence of this street constitutes a breach of the covenant in the deed if the statute gave the board authority to lay it out. It is contended that the statute is unconstitutional ... because in section 9 it provides that no compensation shall be given for land taken for a street, if the owner, after the filing of a plan in accordance with the statute, shall erect any building within the boundaries of any way and not remove it when required by the street commissioners.”
“This was intended to prevent any use of property inconsistent with the plan after the filing of a plan and before the laying out of a way. If it could have that effect, it might materially interfere with the use which an owner might desire to make of his estate for many years after the filing of the plan and before the laying out of a way. The statute provides no compensation for this interference with private property. The legislation can not constitutionally so interfere with the use of property without giving compensation to the owner.”...
“In the act before us, there is no express prohibition of the owner’s use of his property, but it is declared that if he uses it otherwise than in accordance with the plans of the street commissioners it may be taken from him for a way without giving him compensation. This attempt to except him from the general rule in regard to the taking of property under the right of eminent domain is unconstitutional and ineffectual.”
The court then finds that the unconstitutional parts of the statute are not so connected with the rest of the statute as to invalidate it, and that the street laid out under the provisions of the statute became a legally located public way, and that its existence constituted a breach of the covenant in the deed.
D. BILL-BOARDS
Bill-board decisions may be thus classified:
I. Where the ordinance has been held invalid on the ground that its purpose was the removal of the bill-boards for aesthetic reasons and where the character of the bill-boards as nuisances was not raised, the decisions are uniformly against the reasonableness of the ordinance.
People vs. Green, 85 N. Y. App. 400.—The ordinance prohibited the posting of any advertisement whatever upon fences enclosing private property fronting on or adjacent to any public park. There was no claim that the posting of advertisements in any such places was an injury to the morals, health or safety of the city. The ruling was merely against the extension of the police power for aesthetic purposes.
Commonwealth vs. Boston Advertising Co. 188 Mass. 348.—The ordinance prohibited all signs so near a parkway as to be visible to the naked eye and was clearly intended to accomplish aesthetic purposes.
Varney vs. Williams, 100 Pac. Rep. 867.—The ordinance absolutely prohibited maintenance and erection of all bill-boards for advertising purposes. There was no attempt to restrict its operation to bill-boards that were insecure or otherwise dangerous or to advertising that might be indecent. “Bearing in mind that the ordinance does not purport to have any relation to the protection of passers by from injury by reason of unsafe structures, to the diminution of hazard of fire, or to the prevention of immoral displays we find that the one ground upon which the town council may be thought to have acted is that the appearance of bill-boards is or may be offensive to the sight of persons of refined tastes.” The promotion of aesthetic or artistic consideration has never been held to justify an exercise of the police power.
II. Where the court considers the ordinance as an attempt to protect either the health, safety or morals of the community and finds that it is an unreasonable regulation.
State vs. Whitlock, 149 N. C. 542.—The ordinance prohibited the erection of bill-boards on the lot line. The court found that this was an invasion of private rights, since such structures might be built with absolute safety.
Crawford vs. City of Topeka, 51 Kas. 761.—The court, in holding the ordinance unreasonable, said: “In what way can the erection of a safe structure for advertising purposes near the front of a lot endanger public safety any more than a like structure for some other lawful purpose. Perhaps regulations might be made with reference to the manner of construction so as to insure safety but the absolute prohibition would be an unwarranted invasion of private rights.” The unreasonableness of the ordinance is seen when it is considered that the posting of a harmless paper upon a structure changes it from a lawful to an unlawful one. To the same effect are the following cases: Bryan vs. City of Chester, 212 Pa. St. 259; Bill Posting Sign Co., vs. Atlantic City, 71 N. J. Law, 72; Chicago vs. Gunning System, 214 Ill. 628; Passaic vs. Patterson Bill Posting Co., 72 N. J. Law, 285.
II. PROCEDURE IN ACQUIRING LAND BY CONDEMNATION AND IN ASSESSING BENEFITS
1
Amendment To Constitution of New York, Art. 1, Sec. 7. Adopted Nov. 4, 1913
When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, by the supreme court, with or without a jury but not with a referee, or by not less than three commissioners, appointed by a court of record, as shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall be first determined by a jury of free-holders, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited. General laws may be passed permitting the owners or occupants of agricultural lands to construct and maintain for the drainage thereof, necessary drains, ditches and dykes upon the lands of others, under proper restrictions and with just compensation, but no special laws shall be enacted for such purposes.
The legislature may authorize cities to take more land and property than is needed for actual construction in the laying out, widening, extending, or relocating parks, public places, highways or streets, provided, however, that the additional land and property so authorised to be taken shall be no more than sufficient to form suitable building sites abutting on such park, public place, highway or street. After so much of the land and property has been appropriated for such park, public place, highway or street as is needed therefor, the remainder may be sold or leased.
Words in italics are new.
2
Acts of New York, 1911. Chap. 679
AN ACT to amend the Greater New York charter, in relation to the payment of the cost of certain public improvements.
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Chapter six of the Greater New York charter, as re-enacted by chapter four hundred and sixty-six of the laws of nineteen hundred and one, is hereby amended by adding thereto a new section, to be known as section two hundred and forty-seven, to read as follows:
§ 247. Before a public improvement of any kind (except an improvement to be made pursuant to the rapid transit act) involving the acquisition or the physical improvement of property for streets, public places, parks, bridges, approaches to bridges, for the disposal and treatment of sewage or the improvement of the waterfront, or involving both such acquisition and physical improvement of property, which acquisition or physical improvement, or both, is estimated to cost the sum of fifty thousand dollars or more, shall be authorized, the board of estimate and apportionment may determine in what manner and in what shares and proportions the cost and expense of the acquisition or physical improvement, or both, shall be paid by the city of New York, by one or more boroughs thereof, by a part or portion of one or more boroughs thereof, or by the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, hereditaments and premises not required for the said improvement, which said board shall deem peculiarly benefited thereby.
If said board shall determine that the cost of such acquisition or physical improvement, or both, shall be apportioned between or among the city of New York, one or more boroughs thereof, a part or portion of one or more boroughs thereof, or the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, hereditaments and premises not required for the said improvement, which said board shall deem peculiarly benefited thereby, the said board may also determine in what manner and in what proportion the cost and expense of such acquisition or physical improvement, or both, shall be borne either by the city of New York, by one or more boroughs thereof, by a part or portion of one or more boroughs thereof, or by the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, hereditaments and premises not required for the said improvement, which said board shall deem peculiarly benefited thereby.
3
Kansas City vs. Bacon et al. 157 Mo. 450
VALLIANT, J. Appeal from a judgment of the circuit court of Jackson county assessing benefits against property of the defendants in the proceedings to establish Penn Valley park in Kansas City.
For the establishing of the park 134 acres of land were condemned and the total amount assessed as the value thereof to be paid the owners was $870,759.60, and for the payment of that amount assessments as of benefits were made on a large number of lots included in what is known as West Park district, among which were lots owned severally by defendants Bacon and Monroe. The assessments on the lots of Mrs. Bacon aggregated $3,252.49; those on the lots of Monroe, $991.17. The amount assessed against the city as general benefits was $1.
The point against which the main force of appellants’ argument is directed is instruction 11 given at the request of the city, and which is:
“11. By your verdict you shall show a correct description of each piece or parcel of property taken and the value thereof, and of each piece or parcel of private property damaged and the amount of injury thereto. You shall also show by your verdict the amount, if any, assessed against the city, and shall show the amount of benefits assessed against each piece or parcel of private property found benefited within the benefit district.
In estimating the benefits that may accrue to the city and to the public generally, or to any property in the benefit district by reason of the proposed improvement, you shall consider only such benefits as are direct, certain and proximate.”
The law contemplates that a public improvement may bring a benefit to the property of individuals separate from that which it brings to the city in general, and that it may bring a benefit to the city in general separate from that which it brings to the property of the individuals, and that when it comes to apportioning the cost, the individuals and the city should each bear the burden in proportion to the respective benefit, but the benefit in the one case must be as “direct, certain and proximate” as in the other.
Conceding all that the learned counsel say concerning the difference between general and special taxation, we do not see how it affects the question relating to the character of the benefits the city is required to pay for in a case like this. And if it is lawful for the jury to estimate the benefit to the city at large with a view to charging a proper share of the cost of the improvement to the city and thereby to that extent relieve the burden of the property owners; that is to say, if that feature of the law which contemplates laying a portion of the burden on the city at large is not in violation of the fourteenth amendment to the Constitution of the United States, then there must be some rule to guide the jury in assessing those benefits, and if it is not proper to instruct the jury that the only benefits to the city at large which they are to consider are such “as are direct, certain and proximate,” then the contrary is true, and they should be instructed to consider benefits that are indirect, uncertain and remote. We recognize that the task of assessing benefits either to private property or to the city at large is a very difficult one, and that the temptation to the jury to indulge in conjecture is great, but still they ought to be admonished that the law requires them to use their reason and judgment, and not their imagination. The provision of the law requiring the benefits to the city at large to be estimated by the jury should either be eliminated entirely or else the jury should be instructed as to what the law means by such benefits, and if it does not mean such “as are direct, certain and proximate,” it is meaningless.
The specific charge of inequality before the law that these appellants make is that the city has been relieved of its just proportion of the cost of the park, and that portion has been laid, together with their own burden, on these appellants. In their brief they say that the jury should first have estimated the benefit to the city at large and should have charged only the balance of the cost as benefits against the private property, that the assessment of one dollar against the city was no assessment at all.
If the case was given to the jury under proper instructions, whatever opinion we may have as to the fact, we can not say as a matter of law that an assessment of merely nominal benefit was unlawful.
See also Kansas City vs. Bacon 147 Mo. 259, in which this language is found:
“In the absence of misleading instructions or evidence of misconduct a verdict of one dollar against the city at large is not as a matter of law ground to disturb a verdict.”
In this case there was an assessment on property holders of $600,000, and of $1.00 against the city.
And:
Kansas City vs. Smart, 128 Mo. 272, where there was an assessment of $140,000 against the benefit district and $1.00 against the city.
4
Park Law of Indianapolis. Chap. 231. Acts of Indiana, 1911
AN ACT concerning the “department of public parks” in cities of the first and second classes, defining its powers and duties, conferring certain powers upon the common council and mayor of such cities in relation to said park department, legalizing appointments of boards of park commissioners in such cities, and acts done by such boards, repealing conflicting laws, and declaring an emergency.
[S. 378. Approved March 6, 1911.]
Section 1. Cities—First and Second Class—Department of Parks.
Section 2. Park Commissioners—Terms.
Section 3. Organization—Reports—Meetings—Funds.
Section 4. Control of Parks and Boulevards—Powers.
Section 5. Letting of Contracts.
Section 6. Breach of Agreement—Suit—Rules—Taxation.
Section 7. Sale of Park Lands—Park Line—Amusement Places.
Section 8. Bequests of Property—Use and Control—Gardens, Etc.
Section 9. Power over Waterways, Etc.
Section 10. Condemnation—Eminent Domain. The said board of park commissioners are authorized to exercise the power of eminent domain within such city, for the purpose of carrying out any of the provisions of this act, and outside of such city within five miles of the limits of such city. And in case such board of park commissioners cannot agree with the owners, lessees or occupants of any real estate selected by them for the purposes herein set forth, they may proceed to procure the condemnation of the same as hereinafter provided, and in addition thereto, when not in conflict nor inconsistent with the express provisions of this act, may proceed under the general laws of the State of Indiana governing the condemnation of the right of way for the purposes of internal improvement which may be in force at the time, and the provisions of such laws are hereby extended to parks, parkways, park boulevards and pleasure driveways, or parts thereof, so far as the same are not in conflict or inconsistent with the terms of this act.
Section 11. Common Council—Park Districts. The common council of any such city shall have power, by ordinance upon and in accordance with the recommendation of the board of park commissioners, to lay off and divide the territory thereof into any number of park districts that the conveniences of the citizens of such city and of administration of the department of public parks may require; and, after such districts are established, may from time to time, in like manner, add new territory to any established district, or create new districts from territory which may be annexed to any such city. When such division is thus made of the territory of any such city into districts, or when alterations are thus made in the districts, the boundaries thereof shall be accurately defined, and the descriptions of boundaries shall be entered by such board at full length in the records of such board and shall be recorded in the office of the recorder of the county in which such city is situated; and a duly authenticated copy thereof shall be filed with the comptroller of such city.
Section 12. Boulevard—Proceedings to Improve. The board of park commissioners of any such city shall have the power to order the improvement of any boulevard or any pleasure driveway or part thereof, under the control of such board, by paving the same, curbing and constructing sidewalks thereon, or either paving, curbing and constructing sidewalks thereon in the same manner and subject to the same limitation as to form and procedure, and to the same extent as is or may be in the future conferred upon the board of public works of any such city to improve any street, alley or sidewalk within such city; the cost of such improvement of such boulevard or pleasure driveway shall become a lien upon property to the same extent, enforceable in the same manner, with the same rights as to payments by installments and appeal as are or may be provided for in the case of street and sidewalk improvements ordered by the board of public works; and the provisions of said laws applicable to street and sidewalk improvements ordered by the board of public works of any such city are hereby extended to the improvement of any such boulevard, or pleasure driveway: Provided, That said board shall have exclusive authority to determine the kind of pavement to be used. And said park board shall have the power to change and fix the grade of any boulevard, park boulevard, or public driveway, or public ground under its control, to the same extent as such power is now or may be in the future conferred upon the board of public works of any such city to change and fix the grade of any street, alley or public place within any such city: Provided, That whenever the land along one side of a boulevard or pleasure driveway is owned by the city or used by the city for park purposes, one-half the cost of such improvement may be assessed against the property benefited in such park district, or districts, to the extent and in the proportion the same shall be benefited as hereinafter provided; and in case it should be determined by said board that no part of the cost of such improvement is properly assessable against the property of a district, or districts, in which the improvement is made, the same may be paid by such city out of any funds available for such purposes.
Section 13. Appropriation of Property—Improvements. The board of park commissioners of such cities of the first and second classes, as supplemental to other powers conferred by this act, shall have the power, whenever in their discretion such course is advisable, to appropriate property in the manner hereinafter provided for the purpose of: (a) establishing a park, parkway, pleasure driveway or boulevard, or (b) widening or extending any park, parkway, pleasure driveway or boulevard, or (c) opening, widening, or extending any route or right of way for a sewer or channel of any water course connected with or necessary for the protection of any park, parkway, pleasure driveway or boulevard, or (d) constructing any embankment or levee along such water course for the protection of any such park, parkway, pleasure driveway or boulevard, or (e) constructing any bridge or viaduct upon or connected with any such park, parkway, pleasure driveway or boulevard, or (f) converting any street or alley connecting any parks, parkways and boulevards in any such city into a boulevard or pleasure driveway; and also said board shall have power, in the same proceedings, to provide for the construction of improvements of such property for a park, parkway, pleasure driveway or boulevard, in case such property is appropriated or to be appropriated for such purpose; or to provide for the construction necessary for the widening or extending of the same, in case such be the purpose for which the land is appropriated or to be appropriated; or to provide for the construction necessary for the opening, widening or extending of any such route or right of way for a sewer or channel of any such water course, in case such property is appropriated or to be appropriated for such purpose; or to provide for the construction of any such embankment or levee along any such water course as aforesaid, in case such property is appropriated or to be appropriated for such purpose; or to provide for the construction of any such bridge or viaduct, in case such be the purpose for which such property is appropriated or to be appropriated; or to provide for the converting of any such street or alley into a pleasure driveway or boulevard, in case such be the purpose of the appropriation; furthermore, such board may provide for the construction of any of the foregoing work or improvements when the property or part thereof necessary for the same has been secured by contract or otherwise as hereinafter provided.
Section 14. Proceedings in Appropriating Property. Whenever, as provided in the foregoing section, said board shall deem it advisable to appropriate property and in conjunction proceed with the work of construction, or to appropriate property, or to proceed with such construction when the property necessary, or part thereof, has been secured by contract or otherwise, it shall adopt a resolution declaring such purpose, describing the lands to be appropriated or used therefor, and such other lands as may be injuriously or beneficially affected by said proceedings, and in case improvement or construction is provided for in said resolution, shall cause proper plans and specifications and an estimate of the cost of the proposed work to be prepared by its engineer selected to do such work, which shall be open to inspection by all persons interested in or affected by the appropriation of such lands and the construction of such work, and cause notice of the passage and purport of such resolution and, in case of improvement or construction is provided for in said resolution, of the fact that such plans and specifications have been prepared and can thus be inspected, to be published in some daily newspaper of general circulation in such city once each week for two consecutive weeks. Such notice shall name a time, not less than ten days after the date of publication at which such board shall receive or hear remonstrances from persons interested in or affected by such proceeding. At the time so fixed therefor said board shall hear remonstrances, if any are presented, and after considering the same, take final action, confirming, modifying or rescinding their original resolution. Such action shall be final and conclusive upon all persons. In said resolution and notice separate description of each piece or parcel of property shall not be required, but it shall be sufficient description of the property purchased, or to be purchased, appropriated or damaged to give a description of the entire tract by metes and bounds, whether the same shall be composed of one or more pieces or parcels, and whether owned by one or more person or persons; also, it shall be sufficient, in said resolution and notice, to prescribe the limits within which private property shall be deemed benefited by the proposed improvement, which benefit districts may include one or more park districts, part or parts of such district or districts and lands benefited outside of said city: Provided, however, That at the time before the final adoption of said resolution the resident property-holders in any benefit district, as thus defined, shall have the right to remonstrate against any undertaking by said park board, the cost of which may in whole or in part be assessed against their property. In the event that a majority of such resident property-holders shall remonstrate in writing before the date set for such final adoption of such resolution, no assessment shall be made in such district for such purpose for a period of one year thereafter and then only upon a new resolution duly adopted.
Section 15. Improvement Bids—Deposit.
Section 16. List of Property—Damages—Benefits. Upon such final order being made, as above provided, said board shall cause to be prepared a list or roll of all the owners or holders of property sought to be taken, if any, or which will be either injuriously or beneficially affected by the appropriation of such land and the construction of such work, or by either such appropriation or construction. Such list shall not be confined to the owners of property adjacent to the line of the proposed work, but shall extend to and include all property taken or injuriously affected thereby, and also shall include all lands benefited by the location, establishment, construction or improvement of any such park, parkway, pleasure driveway, boulevard, improvement or structure provided for in the foregoing sections, whether within or without the limits of said city, not more than five miles from the limits thereof. In addition to such list of names, the same shall show with reasonable certainty a description of such properties to be appropriated or affected, either injuriously or beneficially, belonging to such persons, and no greater certainty in names and descriptions shall be necessary to the validity of any assessment than is required in the assessment of taxes.
Section 17. Assessment—Damages—Benefits. Upon the coming in of such list such board shall proceed to consider, determine and award, first, the amount of damages sustained by the owners of the several parcels of land required to be taken and appropriated, if any, as is provided for in the above sections of this act, or which will be injuriously affected thereby; second, to consider, determine and assess the amount of benefits accruing to the several tracts or parcels of property benefited by reason of the location, establishment and construction of any such park, parkway, pleasure driveway, boulevard, or other work or improvement provided for in the above sections of this act. No assessments of benefits shall be made in excess of fifteen per cent of the value of the land so assessed exclusive of the improvement upon the land so assessed; and the total of such assessment against any part or parcel of land assessed, during the ten year period of existence of powers herein conferred shall not exceed fifteen per cent of the value of the land so assessed. The damages awarded and the benefits assessed shall be severally shown as against each parcel of land shown on said list: Provided, That the board of park commissioners of any such city shall in any event direct the payment of the cost of any park, parkway, pleasure driveway, boulevard or construction of any improvement provided for in the above sections of this act, over and above the total amount of all assessments of benefits, or to the extent of the benefits to the city as a whole, as determined by said board, to be made out of the general park fund of any such city available for such purpose: Provided further, That in the event the total cost of any such park improvement, including cost of lands, construction, shaping of soil, planting of trees and shrubbery and other work and improvements called for in such resolution, and including costs of making assessments and collections, should exceed the total of benefits to such lands assessed plus the amount available from the general park fund or other sources for any such park improvement, then said board shall proceed no further under said resolution, but shall rescind all action therefrom taken. In case said board shall have ordered the cost of the construction of pavements, curbing and gutters, separately, under the provisions of section 12 hereof, to be paid by abutting property owners, as in said section provided, and it shall appear that the entire cost of the same can not be met by assessments against abutting property owners, not including such city, then such board shall have power to assess the remainder of the cost of such pavement, curbing and sidewalks against the lands of the district or districts wherein such proposed improvement is situate to the extent and in the proportion that the same shall be benefited, in the manner as provided for assessing the cost of other structures and improvements named in sections 13 and 14 of this act: Provided, That the resolution of such board shall in each instance state the method of proposed assessment to be adopted.
When said list shall have been thus completed said board shall cause to be published in some daily newspaper of general circulation in said city, once each week for two successive weeks, a notice describing the location of the lands appropriated, if any, or of the lands on which such improvement is to be made, and the general character of the improvement and the boundaries of the area or district to be assessed; said notice shall also state that the assessment roll, with the names of the owners in favor of whom damages have been awarded and against whom assessments have been made, and descriptions of property affected, with the amounts of preliminary assessments or awards as to each piece or parcel of property affected, is on file and can be seen in the office of said board. Said notice shall also name a day not earlier than ten days after the date of the last publication on which said board shall receive and hear remonstrances from persons with regard to the amount of their respective awards or assessments. Furthermore, said board shall cause a written notice to be served upon the owner of each piece or parcel taken or injuriously affected, showing separately each item of such determination as to lands or parts of lands so owned by him, by leaving a copy at his last and usual place of residence in such city, or by delivering a copy to such owner personally; and said board shall also cause to be mailed by United States mail a notice to the place of residence, if known, of persons owning lands or parts of lands against which special assessments have been made, showing each item of such determination as to such persons. In case any person affected be a non-resident, or his residence shall be unknown, then he shall be notified by publication in some daily newspaper of general circulation once each week for three successive weeks. Said notices shall name a day not earlier than ten days after service of such notice, or after the last date of publication, or after the date of mailing as above provided, on which said board shall receive and hear remonstrances from persons with regard to the amount of their respective awards or assessments. Persons not included in such lists of assessments or awards and claiming to be entitled to the same shall be deemed to have been notified of the pendency of the proceeding by the original notice of the resolution of the board and by the first publication as in this section provided.
Section 18. Property of Insane or Infants.
Section 19. Remonstrance Hearing. Any person notified or deemed to be notified under the preceding sections may appear before such board on the day fixed for hearing such remonstrances with regard to awards and assessments, and remonstrate against the same. All persons appearing before said board having an interest in said proceedings shall be given a hearing. After such remonstrances shall have been received and said hearings had, said board shall thereupon either sustain or modify, by increasing or decreasing the awards or assessments. Any person thus remonstrating, who is aggrieved by the decision of the board, may, within fifteen days thereafter, take an appeal to the circuit or superior court in the county in which such city is located. Such appeal shall only affect the amount of the assessment or award of the person appealing.
Section 20. Appeal. Such appeal may be taken by filing an original complaint in such court against such city within the time named, setting forth the action of such board in respect to such assessment or award and stating the facts relied upon as showing an error on the part of such board. Such court shall rehear the matter of such assessment or award de novo, and confirm, lower or increase the same, as may seem just. In case such court shall reduce the amount of benefit assessed against the land of such property-holder ten per cent. of the assessment by said board, or increase the amount of damages awarded in his favor ten per cent. of the amount awarded by such board, the plaintiff in such suit shall recover costs, otherwise not. The amount of the judgment in such court shall be final, and no appeal shall lie therefrom.
Section 21. Local Assessment Duplicate—Liens.
Section 22. Payment of Damages—Tender.
Section 23. Payment to Owners—Title to Lands.
Section 24. Recording Land Descriptions.
Section 25. Appointments Valid.
Section 26. Ten-Year Limit—Assessment. The power herein granted for the assessments of benefits shall expire ten years from the date at which this act shall take effect: Provided, That after the expiration of said ten year period, said board of park commissioners shall have and exercise powers therein granted in respect to the opening and improvement of streets, ways and boulevards, of which they have control, similar to powers of the board of public works of such cities in respect to streets and highways.
Section 27. Aggregate Benefits. The powers herein granted for the assessment of benefits against property, except as to powers similar to those of the board of public works of such cities, are hereby further limited as follows: The aggregate amount of benefits which may be assessed against property by such park board in cities of the first class during said ten year period, from and after the taking effect of this act, shall not exceed one million, two hundred and fifty thousand dollars. The total amount of such local benefits which may be assessed by such board of park commissioners in cities of the first class during any one year after the taking effect of this act, shall not exceed two hundred thousand dollars. The aggregate amount of benefits which may be assessed against property by such board of park commissioners in cities of the second class during said ten year period, from and after the taking effect of this act, shall not exceed five hundred thousand dollars. The total amount of such local benefits which may be assessed by any such board of park commissioners in cities of the second class during any one year after the taking effect of this act shall not exceed fifty thousand dollars: Provided, That if in any one year such board of park commissioners in any city of the first or second class should assess an amount less than the annual limitation herein contained, then and in that event any such board may, in the following or any subsequent year, make such assessments in excess of said annual limitation to the amount of such difference between such annual limitation and the amount assessed in any previous year. The limits herein fixed shall not be deemed to apply to any sum which may be raised from a general tax levy, and appropriated by the council of such city for the use of such park board, or received from any source other than through benefit assessments, but the limiting amounts herein named shall apply only to such benefit assessments, not including those ordered by powers similar to those of the board of public works.
Section 28. Repeal.
Section 29. Emergency.
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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.