Flavel Shurtleff

“ It may be as clearly for the benefit of the public to promote the beauty of a street or boulevard, as is attempted by the St. Louis and Washington legislation, as to promote that of a park, which was declared to be one of the aims of the Massachusetts legislation in Attorney General vs. Williams. Education may so increase esthetic sentiment as to compel a general extension of the power of municipalities to interfere with the rights of owners for purely esthetic reasons, just as education compelled a judicial sanction of the right to take private property for purposes of public recreation. ”

“ Through the ownership of land and by the exercise of the police power the city may absolutely control the working out of many details of a plan. But a city is seriously handicapped in the use of both of these methods of control. The acquisition of land by any method is expensive, and by the condemnation method is both expensive and slow. To enforce a police ordinance requires an injunction after a court hearing, and the usual administrative agency is slow to ask for an injunction and the usual court is slow to grant it. ”

“ Even where it can be shown that awards of commissions of acknowledged excellence are generally appealed from and are increased by a jury on appeal, the reform that is needed is likely to be more fundamental than the abolition of the commission. A very large factor in determining the attitude both of the general tax payer and of the owner of land, and consequently in determining the number of appeals from a commission’s findings and the advantage or disadvantage of the city’s position before a common law jury, is the method of distributing the cost of an improvement. ”

“ It is usual in the United States to assess no part of the cost of acquiring park lands on property specially benefited. In some cities the law does not permit such assessment. In other cities the assessment is made in so limited a way as to give the community little relief from the financial burden. In several cities, notably Seattle and Portland of the western cities, and Baltimore in the east, which assess private property very liberally for street improvement, including the cost of land takings, there is no assessment for the acquisition of land for parks. ”

“ It is not an answer to the extreme radicalism of the amendment to say that the legislature would probably hedge the power of excess taking with limitations. Radical legislation even in New York is not impossible, and a most radical act of a radical legislature would have had the stamp of constitutionality placed upon it by this amendment if the people had accepted it. ”

“ 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. ”

“ Property owners contest special assessments wherever a contest is made worth while by the size of the special assessment, and reductions in assessments by juries on appeal go far to destroy the effectiveness of this method as a means of providing funds for the acquisition of land; and yet land owners in Boston are treated much more leniently under the law of 1906 than they are in New York, Kansas City, Denver, or Indianapolis. ”

“ Instead of having the benefit of the co-operation of the municipality in the construction of water mains, sewer pipes, and other municipal services, and instead of being entirely relieved of their upkeep, the cost of both construction and maintenance of the highway and of the various conduits for public service falls on the owners of lots abutting on the private street. Unfortunately, these owners are rarely the offending developers of the property; they usually are innocent purchasers who have bought lots, relying on the supposition that they were on an accepted or acceptable street. ”

“ In Germany as well as in the United States the purchase money at the disposal of any municipality is but the return from the taxation of the citizens, and the income of all can be spent only for a use that can be shared by all. German cities have reached a broad conception of a “public use” and have emphasized in this conception the rights of the community. ”

“ In order to appreciate the system which obtains in France for taking land by right of eminent domain, it should be understood at the outset that the initiative for the construction of public works is rarely taken by the local deliberative body, the municipal council, for instance, but almost always by the executive, or, as they would term it, the administration, the head of which is the chief of the State, with his various ministers, while the prefect in each department and the under prefects and other officers represent the lower ranks of the administrative hierarchy. ”

“ In spite of the complete control which a municipality has over the location and design of public structures and the creation and extension of its park system, the obstacles to the formulation of and adherence to a consistent plan are as persistent and often as effective as those which prevent the control of street development.
Expert suggestions have too frequently been disregarded by a purely political city council whose power of appropriation is a most effective check on the execution of city plans. ”

“ A business that produces little or no smoke or noise and no odors that are unhealthful may, because of the appearance of the buildings which it occupies or the class of persons which it attracts, be an undesirable neighbor. This is the sort of occupation that the developers of a high class residential district exclude by restrictions in the deed, but the police power has never been extended to preventing or removing structures or occupations which merely disfigure the city’s physical aspect or which bring together people who may be socially uncongenial. ”

“ The development of the water front, the location of railroad terminals, the transit problem, have all been distinctly recognized as requiring the permanent attention of a special planning board representing the public interest. But in those fields where the public interest is apt to conflict with the advantage of private or corporate owners, the value of expert suggestion and study can never be as fully realized as where the execution of a plan is entirely in the control of the municipality. ”

“ Leaving out of consideration financially self-sustaining municipal investments, like many municipal water works, which are usually reckoned apart from the municipal debt and which do not impose a burden upon the tax payers as such, the temporary relief from financial difficulties secured as above described, by extending the limit of a city’s borrowing power or by expedients such as the contract method of paying for land, leaves the ultimate burden on the municipality and substantially distributes it over the whole of the taxable property of the city in accordance with valuation. ”

“ It is more satisfactory in urging the need of planning measures to deal with a few men, whether bad or good, efficient or stupid. It is also wholesome to fix the responsibility of a policy on an administration consisting of a few men rather than to trace the responsibility through a maze of committees and motions to an irresponsible clerk. City planning legislation may chance to succeed in two chambers of a city council in spite of numbers, because of the domination of one or two individuals ”

“ For three years the owner may pay interest on the amount he owes the city, but at the end of this period the city’s lien for all charges against the land is sold at auction to the person who bids the lowest rate of interest for which he will pay the face value of the lien and carry it three years more. Thus the city gets its money and the land owner merely has, in addition to the face of his assessment, an interest charge which is apt to be ridiculously low since the bidding in on city liens is usually active. ”

“ The property owner often objects with justice to the arbitrary specifications required both for the width of a street and the allotments of space for sidewalk and parking strips. Even in cities where most has been accomplished in the planning of a street system there has not been a sufficient regard for the difference in the use of streets as [Pg 173] affecting their width and cross section. Many cities require all streets to have a certain minimum width, either 40, 50, or 60 feet between property lines, whereas in some cases a width less than this standard minimum would be much more suitable. ”

“ He is the only person having the authority to make an official survey of public or private property in his district. All fees for work done for private parties are paid into the city treasury by the individual for whom the work is done. Such a system gives each district surveyor a practical knowledge of the land and of the land owners, and the confidence which is had in the district surveyor has done more to prevent violations of the street plan than the penalties contained in the legislation. ”

“ Though a special assessment is an exercise of the taxing power, it differs from a tax in two particulars: First, the nature of a special assessment makes it a charge for a real benefit to property and one which can be more or less accurately measured in money values ”

“ Property owners who get their damages for land taken, alienate the property, and the owner not a party to the condemnation proceedings who has paid to his predecessor in title an increased price on account of the improvement to the property, naturally opposes payment of a special assessment. That most of the action under the law is a perversion of the special assessment principle has been recognized in recent Massachusetts special legislation, where the limitation on the assessment area has been removed and the size of the area left to the discretion of the street commissioners. ”

“ Ordinarily the findings of the eminent domain commission are taken up on appeal to a justice sitting without a jury, but a corporation is allowed to appeal to a common law jury on the question of damages although not on the question of benefit. It is not infrequent for the appeal of a single corporation to result in a jury’s overthrowing the finding of the eminent domain commission in respect to one item, in which case all the work of the commission goes for nothing. ”

“ In considering whether excess condemnation is justifiable on the ground of securing to the city such profit from the resale of excess land as will enable it to recoup a large part of the cost of the improvement, it must be borne in mind that “failure of administration” is as likely to defeat expectations in the United States as in Europe. ”

“ In favor of the first system, it has been urged that, in consequence of the carrying out of the proposed public work, there will be an increase in value of the surrounding property, caused by no act of its owner, but entirely by the act of the public body, and at the public expense; that it is inequitable that such increase in value should not accrue to the public, to the expenditure of whose money it is solely due; that the method of acquiring the abutting property in the neighborhood is the best method of securing such benefit to the public ”

“ In any event the land taken for the street had to be paid for, and where part of a building was taken the city was invariably obliged to pay for the whole, the damages to the tenants were the same practically whether the whole estate or only a part was taken, and thus the sole difference in expense between taking the whole estate or leaving a remnant was the difference between the value of the remnant at the time of taking and the damages caused it by the taking for the street, which must be paid if the remnant was not taken, and this difference was not great. ”

“ 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. ”

“ Chicago gets practically all of its sites for school houses by condemnation. The offer of the school board to purchase land desired is hardly more than formal, and on its rejection the petition for condemning the land is brought immediately in court and evidence of the value of the site is presented directly to the jury. This method has been in use for some years and counsel for the board, who has served during the history of this method of procedure, is convinced that the city is in substantially as advantageous a position as a private buyer. ”

“ 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 ”