i ; ! THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW Citi3en's Xibrarg ot Economics, politics an& Sociology Hew Series EDITED BY RICHARD T. ELY, PH.D., LL.D. Professor of Economics in the University of Wisconsin THE LAW OF CITY PLANNING AND ZONING Cbc attt3en'0 llbrarp of Economics, politics and Sociology KBIT CD BY RICHARD T. ELY, Ph.D.. LL.D. ProfeMW of Economic* in the University of Wisconsin. Hew Series THE PROGRESSIVE MOVEMENT. Bv BENJAMIN P. DE- WITT. M.A.. LL.B. THE SOCIAL PROBLEM. Bv CHABLES A. ELLWOOD. PH.D. New and greatly enlarged edition. THE WEALTH AND INCOME OF THE PEOPLE OF THE UNITED STATES. BY Wiu.row> I. KING. PH.D. THE FOUNDATIONS OF NATIONAL PROSPERITY. BY RICBABO T. ELY, PH.D.. LL.D.; Rxtrn H. Hxu. PH.D.; CRABLU K, LBITM, PH.D.; THOMAS NIXON CABVEB. PH.D.. LL.D. THE WORLD WAR AND LEADERSHIP IN A DEMOC- RACY. BY RICHABD T. ELY. PH.D.. LL.D. BUDGET MAKING IN A DEMOCRACY. BY MAJOB EDWABD A. FlTZFATmiCK. THE VISION FOR WHICH WE FOUGHT. BY A. M. SIMONS, B.L. CITY MANAGER IN DAYTON. BY CHESTEB E. RIGHTOB. B.A. THE MARKETING OF WHOLE MILK. BY HENBY E. EBOMAN. I'H.D. POPULAR GOVERNMENT. BY ABNOLO BENNETT HALL, B.A.. J.D- THE NON-PARTISAN LEAGUE. BY ANDBEW A. BBUCE. A.B.. LL.B. THE LAW OF CITY PLANNING AND ZONING. Bv FBANK BACL WILLIAMS. A.M.. LL.B. THE LAW OF CITY PLANNING AND ZONING BY FRANK BACKUS \yiLLIAMS, A.M., LL.B. Of the New York Bar got* IQ22 THE MACMILLAN COMPANY All rights reserved NUNTED IN TUI UiilTID STATED OF AMUUCA u> 1910. CorrviGRT, 1912, By THE MACMILLAN COMPANY. Set up and printed. Published NoTember, of J J Little * Ivr. C If*w York, f INTRODUCTION BY AUBREY TEALDI Professor of Landscape Design, University of Michigan. City Planning in its broad modern sense is a very recent development in America. Less than three decades have passed since the first conscious effort was made to prepare a compre- hensive plan for the improvement, embellishment and future development of a large city. However, only within the present century has the movement become at all general. During this time many cities, both large and small, in every section of the country have grappled with the problem of their economic, hygienic and aesthetic development. At first the movement in civic improvement was mainly confined to the idea of the City Beautiful so that the plans and reports dealt mostly with parks, civic centers and other specialized features that made their appeal through that idea, each one excellent in its way, but fulfilling only a narrow purpose too often totally unrelated to the city as a whole. It was not till later that the less showy but fundamental questions such as transportation, water supply, sewerage systems, etc., were taken into consideration as essential parts of civic improvement. Even then the reports too often illustrated and placed great emphasis upon city embellishment and improve- ment in other countries without making due allowance for the local conditions and specially for the legal status of city planning in those countries. In general it may be said that in the earlier planning reports the legal side of city planning was given little or no considera- tion. The result was a failure, either wholly or in part, to accomplish their purpose. This failure was easily traceable to the lack of legal foundation for carrying out the plans recommended in the reports. The need of a sound legal basis 74O150 rf INTRODUCTION for city planning in the United States soon became apparent. In fact it did not seem an exaggeration to say that the most important profession in connection with city planning was the law, and that the lawyer, at least for the time being, was the one most fundamentally concerned with its progress. While it is evident that city planning cannot be a one-man's concern, and that for the best accomplishment it must be the result of the united efforts of the lawyer, the engineer, the landscape designer, the architect, the economist and others, it is still true today that in most cases without the efforts of the lawyer the others would be helpless. And it will continue to be true until such time as that sound legal basis has become an accomplished fact. City planning as a science and as an art has been taught for some time at more than one American University, but gen- erally until quite recently the legal side of the question has not been given the prominence that is essential. It was this consideration that in 1915 suggested a course of lectures on city planning law in connection with the instruction in city planning at the University of Michigan, where one of the aims was to spread a knowledge of the elements of the subject more widely rather than confine it to the students of any one depart- ment. With this end in view Mr. Frank B. Williams of the New York Bar was invited to deliver a series of lectures at this institution. Mr. Williams was particularly well qualified to act as leader in this pioneering movement. As a student of city planning law his experience had been wide. He had founded and was Chairman of the City Planning Committee of the City Club of New York, he was director of the Municipal Art Society of New York, Member of the General Committee of the National Conference on City Planning, had been sent abroad by the City of New York in 1913, and again in 1914, to investigate and report on building regulation and zoning, and had drafted the New York City Planning Law of 1913. Mr. Williams accepted the invitation and was ap- pointed non-resident Lecturer in City Planning Law in the Department of Landscape Design ; the lectures were delivered INTRODUCTION vii in the spring of 1916. These lectures were the first attempt to present the subject of City Planning Law as an entity. Their immediate result was a much clearer understanding among the different colleges and departments of the University of the close interrelation of all the professions concerned in the development of urban and rural planning. The fact that Mr. Williams was invited to repeat his course of lectures at a number of other Universities was proof that the interest in the subject was by no means confined to this institution. In introducing his subject Mr. Williams said: "A free country is of necessity a country regulated by law. Rules, to do justice, must be not only inherently equitable but also cer- tain, the same for all, known in advance to all who desire knowledge of them. A government conducted under known mandates is a government of law ; any other administration may be benevolent but it cannot be just or free. Nor can the great nations of today be either intelligent or progressive in the conduct of their affairs unless directed in accordance with laws founded upon experience. An essential of justice and wisdom, however, is adaptation to things as they are, a fact which introduces into the law an element of change without which progress is impossible. "In free countries like ours one of the most important facts in any public undertaking is the existing law with relation to it. No public enterprise in the United States can be accom- plished or even actually begun, except by methods sanctioned by the law as it exists at the time in the jurisdiction where that enterprise is proposed. A failure to know and appreciate this fact, especially in new fields of endeavor like City Planning, is one of the commonest causes of failure of our officials and public-spirited citizens to obtain practical results. Scarcely less of an obstacle to ultimate success is the failure to appreci- ate the possibility of changing the existing law for the better. All too often the so-called practical man in a given city or state seems to regard the law as it is in that jurisdiction at the time as a fixed fact, and its inadequacy as an insurmountable barrier to the enterprise he wishes to undertake for the com- mon good. To dispel this illusion, a knowledge of the law Tin INTRODUCTION and practice with relation to similar undertakings elsewhere in sufficient accuracy of detail to ensure constructive change based upon approved modern practice, is necessary. "It is as an aid to the citizen and the administrator who sees that to planned achievement in public enterprises a com- prehensive, accurate knowledge of planning law is essential, that these lectures have been prepared." The lectures form the nucleus of the present book, in which the progress of the past six years has been recorded and the subject has been brought up to date. 1 Wherever City Planning is practised or studied this work should be an indispensable reference and guide both for the professional and for the lay- man, and as such it should be a powerful influence in the neces- sary widespread education in all matters pertaining to civic improvement. City Planning is a vital question ; there is no human endeavor that is not intimately affected by it. Its success in the United States, more than upon any other factor, depends upon the intelligent development of public opinion. It is evi- dently more and more necessary to educate not only those who are directly concerned with the work, but the legislative bodies who can do so much to forward or retard its progress, and above all the American citizen who is in the end the controller of his own destinies. AUBREY TEALDI rsity of Michigan. 12th January, 1922. 'As evidence of this prepress may be mentioned Mr. Willinms's Report on Legal Methods of Carrying Out the Changes Proposed in the City Plan for BriHn.-f.it. which accompanies Mr. John Xnh-n\ Utport of 1916, and Akron and Its Planning Law also by Mr. Williams in con- nection with Mr. Nolcn's Report of 1919 for that city. EDITORIAL PREFACE BY RICHARD T. ELY The purpose of this editorial preface is not to praise the present work by Mr. Frank B. Williams. If, as I believe, it is pace-setting and path-breaking, it needs no words of mine to assign it its proper place. "Good wine needs no bush." My purpose is rather to explain the position that this book occu- pies with respect to related books also published, or to be pub- lished, under the auspices of the Institute for Research in Land Economics. As the idea of Land Economics is a new one, the very phrase itself having come into use only within a few years, I venture to give definitions of Land Economics and Land Policies, with a few words of explanation : Land Economics is that division of economics, theoretical and applied, which is concerned with land as an economic concept and with the economic relations which grow out of land as property. As science, land economics seeks the truth for its own sake. It aims to understand present facts pertaining to land ownership in all their human relationships, to explain their development in the past, and to discover present tendencies of growth. As an art, it aims to frame constructive land policies for particular places and times. A land policy takes as a starting point the existing situation with respect to the land, land as here used being equivalent to all the natural resources of the country. It examines the processes of evolu- tion by which the existing situation has been reached and proceeds to develop a conscious program of social control with respect to the acquisition, ownership, conservation and uses of the land of the country and also with respect to the human relations arising out of use and ownership. Books have been published on many of the topics which fall within the scope of Land Economics, but they have ap- peared to lack close relationship with one another. This con- cept of Land Economics places these works in their proper x EDITORIAL PREFACE relations to each other and gives them a unity which, it is believed, will be helpful scientifically and practically. It will give a still clearer idea of the field if I mention the books already published by The Macmillan Company and also others for which plans have been made, which belong to this general field. The list of those already published is as follows : Agricultural Economics H. C. Taylor Marketing of Farm Products Theodore Macklin The Marketing of Whole Milk H. E. Erdman The Law of City Planning and Zoning Frank B. Williams The list of those planned is as follows, the names of authors being omitted where definite arrangements have not as yet been completed: Economics of Forest Land Henry S. Graves Outlines of Land Economics Richard T. Ely The Taxation of Land Richard T. Ely Economics of Marketing Economics of Mineral Land Irrigation Institutions Elwood Mead Rural Sociology G. J. Galpin Land Utilization Range and Ranch Land History of Federal Land Policies B. H. Hibbard Land Valuation Urban Land Policies Richard T. Ely and M. G. Glaeser Introduction to Agricultural Economics L. C. Gray Economics of Water Resources The Ownership and Tenancy of Agricultural Land B. H. Hib- bard and G. S. Wehrwein The Marketing of Manufactured Products The Single Tax F. B. Carver The Real Estate Business as a Profession R. T. Ely and asso- ciate* Land and Credit Farm Organization Agricultural Cooperation Farm Bookkeeping Special Assessments Land Problems of Planning Frontier Finance in the I'nitcd States Land Values in the Cotton States Land Values in the Grain States EDITORIAL PREFACE xi On reading this list it will be observed that the books in- cluded are all economic in character and that they all relate to the land. The two works on Agricultural Economics deal with the economic aspects of agriculture and are thus distin- guished from books on technical agriculture. The same holds true with regard to the book on the Economics of Forest Land. The unity is found in the idea of property in land; It is hoped that the present work will very greatly broaden out the interest in the subjects which fall within our field. Students of the economics of land problems have too generally failed to appreciate the fact that land planning, both urban and agricultural, is absolutely essential to their solution. On the other hand, city planners have too generally failed to appreciate that fundamentally their work must be based upon economics. Land Economics, then, as a concept opens up a large practical and scientific field. There is a great need for investigation in Land Economics. We are face to face with the gravest economic problems aris- ing out of landed property problems that lie at the very foundation of our economic life; and when we turn to economic treatises we find little to help us in their solution. Thoughtful men of affairs must realize the significance of landed property and all the arrangements that are connected with it as soon as these facts are called seriously to their at- tention. Some of them already show an appreciation of what land questions mean for the future of civilization. Especially significant is the following quotation from the late James J. Hill, whose greatness and experience in developing a vast inland empire entitle his words to careful consideration : "Land without population is a wilderness and population with- out land is a mob. The United States has many social, po- litical, and economic questions some old, some new to settle in the near future; but none so fundamental as the true rela- tion of the land to the national life." This relationship of the land to the national life is a ques- tion of property when we reach its heart, and all investigations of land problems which do not find their center in the institu- tion of property must be superficial and unsatisfactory, leading to no permanent solutions. xii EDITORIAL PREFACE The place and significance of the present work will be made more clear by some further information about the Institute for Research in Land Economics, in which the need for investiga- tion is emphasized. The Institute for Research in Land Economics was founded in October, 1920. It has a staff of resident research workers ami has the cooperation of a number of professors in universities and agricultural colleges, and members of federal and state departments of agriculture. A group of mature and experienced graduate students have joined in its studies. The Institute has begun a number of investigations, and will, as it expands, take up others for which the need is great. As a motto the Institute has taken the following words written by Professor Frank A. Fetter : My own conviction has long been that the land question far transcends any restricted field of economics and that it is funda- mental to national survival and national welfare. It is truly a prob- lem calling for statesmanship of the broadest type. The character of the Institute is further indicated by the Board of Trustees, which consists of the following gentlemen : Justice M. B. Rosenberry (Supreme Court of Wisconsin), President of the Board of Trustees Richard T. Kly (Professor of Economics, University of Wisconsin), Director of Research John H. Finley (late Commissioner of Education of the State of New York and President of the University of the State of New York. Now of the editorial department of the New York Times.) Colonel Henry S. Graves (Ex-Chief of the United States Forest Service) Henry ('. Taylor (Chief, Bureau of Markets, United States Depart- ment of Agriculture) W. S. Kies t Aldred and Company, New York City) Albert Shaw (Editor, Rn-iew of Rwiews) My, it may be said that the Institute for Research in Land Economics has no private aims. All the funds which are received are devoted to its work just as in the case of an endowed university. RK HARD T. KLY, ' ctor. Institute for Research in Land Economics. ACKNOWLEDGMENTS The author takes this occasion to express his gratitude to the officials and specialists who have so often in the past given him information and the benefit of their opinions in city planning and allied subjects. He wishes especially to thank Thomas Adams, Esq., former President of the Town Planning Institute of Great Britain, Secretary and Manager of Letch- worth Garden City, and Town Planning Inspector to the Local Government Board of England and Wales, and at present Housing and Town Planning Adviser to the Commission of Conservation of Canada; Albert S. Bard, Esq., of the New York Bar, who acted as secretary of the Mayor's Bill Board Advertising Commission, and has been for so many years a Director and twice the President of the Municipal Art Society of New York; Major George B. Ford, again in New York, after his work for the Red Cross and the Renaissance des Cites in reconstructing France; Dr. H. Lindemann, editor of Kommunales Jahrbuch and Director of the Institute for Social Research at Cologne; Hendrick W. van Loon, Esq., the his- torian in severe print and gayer but no less instructive pictures ; Dr. John Nolen, the planner of many cities; Frederick Law Olmsted, Esq., many times President of the National Con- ference on City Planning and the American City Planning Institute, and at this time President of the American Society of Landscape Architects ; Lawson Purdy, Esq., for many years the President of the Board of Tax Commissioners of the City of New York; M. Georges Risler, founder of the Societe des Habitations a Bon Marche and the Societe des Architects Urbanistes and President of the Musee Social, and Dr. Delos F. Wilcox, formerly Deputy Commissioner of Water, Gas and Electricity, New York City, for their kind criticisms of portions of this work; and especially Edward M. Bassett, Esq., eminent authority on the law of city planning and zoning, xir ACKNOWLEDGMENTS for his helpful criticism of the book as a whole; for the state- ments and opinions of which, however, the author assumes entire responsibility. The author wishes also to thank the Chamber of Com- merce of Akron, Ohio (for whom Akron and its Planning Law was written), the City Planning Commission of Bridge- port, Connecticut ( for whom the Report on Legal Methods of Carrying Out the Changes Proposed in the Plan of Bridgeport was prepared), D. Appleton and Co., publishers of City Planning (National Municipal League Series, New York, 1916), and the editors of the American City, Journal of the American Institute of Architects, Landscape Architecture, and the National Municipal Review, for their permission to use again material first printed by them. The author is greatly indebted to William C. Dickinson, Esq., for the making of the general index, and to the Economics Department of the New York City Public Library and the staff of the Library of the Harvard University School of Landscape Architecture, for invaluable assistance in the prep- aration of the bibliography. CONTENTS PAGE INTRODUCTION, By Aubrey Tealdi v EDITORIAL PREFACE, By Richard T. Ely ix ACKNOWLEDGMENTS xiii PART I. GENERAL PRINCIPLES CHAPTER I. SCOPE x CHAPTER II. FUNDAMENTALS n PART II. PLANNING THE CITY AS A WHOLE . . 27 PART III. PLANNING THE PUBLIC FEATURES CHAPTER I. ACQUIRING THE LAND 43 CHAPTER II. EXCESS AND ZONE CONDEMNATION AND REPLOTTING IN EUROPE 59 Note A ' Statutes of Excess and Zone Condemnation and Replot- ting in Europe. No. i. The English Unhealthy Areas Act. No. 2. The French Expropriation Law of 1841 as Amended by the Excess Condemnation Law of 1918. No. 3. The German Replotting Laws. CHAPTER III. EXCESS AND ZONE CONDEMNATION AND REPLOTTING IN THE UNITED STATES 128 Note B ' Excess Condemnation Provisions in the United States. Constitutional Amendments: No. i. Massachusetts. No. 2. Ohio. No. 3. Wisconsin. No. 4. New York. No. 5. Rhode Island. Stat- utes: No. 6. New Jersey, 1870. No. 7. Ohio, 1904. No. 8. Oregon, 1913. No. 9. Virginia, 1906-1916. Statutes under Constitutional Amendments: No. 10. Massachusetts, 1912. No. n. New York, 1916. No. 12. Rhode Island, 1917. CHAPTER IV. PUBLIC UTILITIES THE WATER FRONT , 161 CHAPTER V. STREETS SETBACKS TRAFFIC REGULATIONS 173 Note C: Setback Statutes in the United States. No. i. Massa- chusetts. No. 2. Indiana. No. 3. New York. xv xv, CONTENTS PAGE PART IV. PLANNING THE PRIVATE FEATURES CHAPTER I. THE PRINCIPLE OF BUILDING REGULATION AND ZONING . . 191 CHAPTER II. ZONING IN EUROPE 210 Nott D: Zoning Provisions in Germany. No. i. Housing in German Cities. No. 2. The Frankfort Ordinances. No. 3. The Dusseldorf Ordinance No. 4. Comparison of the Cologne, Frank- fort, Karlsruhe and Munich Ordinances. CHAPTER III. ZONING IN CANADA AND THE UNITED STATES .... 265 Note E: Zoning Provisions in the United States. No. i. The Massachusetts Constitutional Amendment. No. 2. The New York Law for New York City. No. 3. The New York Law for Cities. No. 4. The New Jersey Law for Cities. No. 5. The District of Columbia Law. No. 6. The New York City Resolution. No. 7. The Milwaukee, Wisconsin, Ordinance. No. 8. The Alameda, Cali- fornia, Ordinance. PART V. CITY PLANNING FINANCE 357 PART VI. PLANNING FOR THE PROMOTION OF BEAUTY 381 Note F-' Statutes for the Promotion of Beauty in Europe. No. i. The French Law for the Protection of Natural Beauty. No. 2. The French Law for the Protection of Places and Objects of His- toric and Artistic Interest. No. 3. The English Ancient Monuments Consolidation and Amendments Act, 1913. No. 4. The English Ad- vertisements Regulation Act, 1907. PART VII. PLANNING ADMINISTRATION CHAPTER I. PLANNING ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 443 Note G: The General Planning Laws of Italy, Germany and Holland. No. i. The Italian Expropriation Law of 1865. No. 2. The Prussian Street and Building Line Law of 1875 and Housing Law of 1018. No. 3. The Saxon Building Law of 1900. No. 4. The Dutch Housing Law of 1901. CHAPTER II. PLANNING ADMINISTRATION IN ENGLAND, CANADA AND FRANCE 498 Note It : The English and French General Planning Laws. No. t. The English Town Planning Acts, 1909 and 1919. No. 2. The French Planning Law of 1919. CHAPTE* III. PLANNING ADMINISTRATION IN THE UNITED STATES . . 535 Note I: General Planning Laws in the United States. No. i. Tb Minnesota Planning Law. No. a. The New Jersey Municipal CONTENTS xvii PAGE Plan and Art Commission Act. No. 3. The New York City and Village Planning Law. No. 4. The New York City Art Com- mission Law. No. 5. Planning Provisions of the Charter and Or- dinances of Cleveland, Ohio. No. 6. The Pennsylvania General Plan Act. No. 7. The Pennsylvania Planning Act for Third Class Cities; the Provisions for Approval of Plats. No. 8. Planning Provision of the Pennsylvania State Highway Act. No. 9. The Proposed Massachusetts Metropolitan Planning Act No. 10. The Pennsylvania Suburban Metropolitan Planning Act. No. n. The New York-New Jersey Compact for Planning New York Harbor. No. 12. The New Jersey County Planning Act. No. 13. The Cali- fornia Capital City Planning Law. No. 14. The Pennsylvania State Planning Bureau Act BIBLIOGRAPHY 607 TABLES OF STATUTES 631 INDEX OF CASES 641 INDEX OF STATUTES 649 GENERAL INDEX 659 THE LAW OF CITY PLANNING AND ZONING CHAPTER I SCOPE Definition of City Planning. City or town planning 1 is the guidance of the physical development of communities in the attainment of unity in their construction. Wherever in any locality a sufficient concentration of population has occurred to create complexity, here will be found a network of interests, each seeking its expression in the physical life of that locality; and it is the task of city planning, either by prevention or by cure, to bring these interests into harmony, in the unity of that locality. 2 1 In England, where the word "town" means any collection of buildings however large, the science is called town planning; while in the United States, where the larger aggregations are generally referred to as cities, the expression city planning is the one generally employed. The phrase town planning is in common use in Canada and Massachusetts. 'The extent to which city planning should go into detail, is gov- erned largely by practical considerations. The "Introductory State- ment" of the American City Planning Institute, based upon the report of a sub-committee of which Frederick Law Olmsted, Esq., was chair- man, says on this subject: "2. City Planning ... is concerned with the territory occupied or to be occupied by any community and with prospective physical alterations in that territory and the objects upon it, in so far as such alterations can wisely be controlled or influenced by concerted action in the interest of the community as a social unit. "3. No prospective physical alteration is so small, so localized, or so I a THE LAW OF CITY PLANNING AND ZONING Planning Small Places. In this country the planning of localities is usually referred to as "city" planning. This is no doubt due to the fact that until recently all our planning legis- lation, recognized as such, applied only to cities, and interest in planning was confined almost exclusively to large cities. In specialized in technique as to be excluded merely for that reason from the scope of city planning, provided it can wisely and effectively be controlled in the common interest. . . . "5 In theory there are no limitations to the extent of coordination desirable among the diverse planning activities which shape the physical growth of a community or to the desirability of estimating future con- tingencies and taking account of them in planning; but practically there are decided limitations upon the amount of time and effort which can be withdrawn from the vital business of getting things done for the sake of study and of planning what to do and how best to do it. "a. The so-called 'practical man' is apt to underestimate the value of far-sighted, deliberate and well-coordinated planning; while the so- called 'theorist' is apt to overestimate the extent to which such planning can profitably be carried and to underestimate its cost in delays and in dissipation of energy which might be producing more immediate prac- tical results. The well-balanced city planner, along with his broad grasp of underlying theories, recognizes that practical results year in and year out are the final test, and shapes his work accordingly. ' b. It is important therefore to apply sound, clear, penetrating com- mon sense to the problem of how far it will pay to go with investiga- tions and planning, under any given conditions, before proceeding to the execution of plans. "6. The classes of specific planning problems which are most dis- tinctively matters of city planning are: "a. Those which lie so much outside of the fields effectively covered by existing specialized planning agencies that the community is likely to suffer from their neglect. Such specialized fields include, for ex- ample, sewerage, water-supply, parks and rapid transit. "b. Those in which a close coordination of planning in separate fields of technical work is likely to secure advantages commensurate with the effort of obtaining such coordination. "c. Those in which the permanent interests of a community justify the framing of plans for specific improvements in such a manner as to meet not merely the immediate objects of the improvements but also the contingencies of a remoter future or community needs which arc only indirectly connected with those objects. Merely to deal with problems of the above classes as they arise in the course of community growth is city planning of an opportunist ort. But constructive city planning requires also that many such prob- lems, long before they become acute, shall be anticipated and consid- ered under the impulse of imagination applied toward the attainment of the larger social objectives of the community. . . . "o. Just as city planning must unite the points of view of many tech- nical specialists in approaching its problems and must balance a regard for immediate expediency with a far-*iihtr\\ pretty generally been altered so as to require compensation not only when property has been taken but when it has been "dam- FUNDAMENTALS 17 aged" or "injuriously affected," a doctrine which protects the owner in cases of change of grade and many similar cases. This is really a case of the correction of a mistake in legal decision by subsequent statute or constitutional provision an illogical, but convenient and effective, method of procedure. The Police Power. Only the smaller portion of the land within a city is needed for public uses. The rest is necessarily devoted to houses, stores, factories and other uses, private in their nature. It is conceivable that the public should own all the land within the limits of cities and thus control private as well as public use by right of ownership. Such certainly is not the case at present or likely to be in the near future ; and until that time comes the public must guide the private use of city land by regulations imposed by virtue of sovereignty. Regu- latory legislation is so general and of such wide application that there can, and should be, no obligation to compensate those affected by it. 2 Measures of this sort are imposed by what in this country has come to be referred to as the "police power." What, then, is the police power? The courts, in passing on this question, have repeatedly said that it could not be adequately defined. It is inherent in the states of the Ameri- can Union, and was not surrendered when the federal union was formed. Like all governmental powers, it must be exer- cised for the public good. Like the others, it must be used reasonably. Freund, in his standard book on the subject, de- fines it as the power which by restraint and compulsion aims to promote the public health, safety, morals, and general wel' fare. Court decisions have held that it may be used for the public convenience and the general comfort and prosperity. All this, however, does not amount to a definition of the police power; to obtain it, many activities of the state, such as the administration of justice, taxation, eminent domain, etc., must first be excluded, and the police power remains the undif- f erentiated residuum of legislative authority ; thus covering, as 'In some cases, as, for instance, the killing of tubercular cows, the statutes provide for a payment to their owners, which, however, is usually less than the value of the cows; thus mitigating the hardship and lessening somewhat the chances of concealment. ,8 THE LAW OF CITY PLANNING AND ZONING Judge Andrews of New York puts it," "a wide range of partic- ular unexpressed powers . , . affecting freedom of ?> action, personal conduct and the use and control of property Regulation and the Taking of Property Rights.- Regulation, if it is to have an effect at all, must necessarily c prive the persons affected by it of personal and proprietary r^hts whX. but for the making of it, they would lawfully enjoy The United States Constitution forbids the taking o property without compensation. Does it therefore follow t the police power for the exercise of which there is no compen- sation is superior to that Constitution? Not at all. Legisla- tion under the police power is invalid, which is contrary i only to the fifth and fourteenth amendments of the Const tion but to the commerce clause, the clause forbidding impairment of contracts or any other constitutional provision, or to state constitutions. But constitutions are to be mter- the profoundest of American jurists of our tinjj, in his Cases on ^ ^^^^^^^^^ other meaning than the general power of go minions belonging to every sovengnty. ^ oter meanng its and Se^owth of constitutional government came a differentiation of , her L F Suernal administration, such as civ 1 and criminal justice. Station, etc leaving the term >>lu. 10 -tan.l for the rema,n,, 1R un- dSerSated fv.ncti.5is. In Germany today there has been **** of the term. They have there not only safety police (the police in trie MDuIar cnse) but many oth< M ich ^ hvulding, fire, health, busi- 52. Mk! In other countries the same duti.-* arc performed by offi- of the iQth century. FUNDAMENTALS 19 preted not only logically but in the light of history and the common use of words. Governments always have regulated and always must to some extent regulate without compensa- tion the relations of one individual to others. It is not to be supposed that the makers of our Constitution intended to forbid such legislation. On this subject Justice Holmes, of the Su- preme Court of the United States says : 5 "If the fourteenth amendment is not to be a greater hamper upon the established practices of states in common with other governments than I think was intended, they must be allowed a certain latitude in the minor adjustments of life, even though by their action the burdens of a part of the community are somewhat increased. The traditions and habits of centuries were not intended to be overthrown when that amendment was passed." The Effect of Usage and Public Opinion. In fixing the limits of such powers as the police power and that of emi- nent domain, the courts have been influenced not only by past usages and customs, constituting what is already history, but by current usage and custom, which is history in the making. In this connection the Supreme Court of the United States says : "It may be said in a general way that the police power extends to all the great public needs. Cornfield v. United States, 167 U. S. 518. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare." Another instance, worthy of notice, of the recognition by the courts of the influence which public opinion rightly has in the decision as to what is for the general welfare, is furnished by the case of People v. Schweinler Press, 7 in which the New York Court of Appeals, reversing its previous opinion, 8 held that a statute regulating and limiting the hours of labor of women in factories was constitutional. In justifying this change the court says : 8 Interstate, etc., Railway Co. v. Commonwealth, 207 U. S. 79 at 87 (loo?)- "Noble State Bank v. Haskell, 219 U. S. 104 (1911). '214 N. Y. 395 (1915). In People v. Williams, 189 N. Y. 131 (1907). a, THE LAW OF CITY PLANNING AND ZONING "Especially and necessarily was there lacking [when rendering the feme dedsion] evidence of the extent to which during ^the inter- veningTears the opinion and belief have spread and strengthened Jhat uch night work is injurious to women; of the laws, as "fcating 'uch teHef since adopted by several of our own states and by large Europtn countries, and the report made to the legislature by own agencv, the factory investigating commission, based on mve Sn of ac ual conditions and study of scientific and medical opinion Sat night work by women in factories is generally mjunous and ought to be prohibited." The Effect of Local Conditions. In a country as large as ours physical conditions, usage, opinion and all the sur- rounding circumstances, so important in the determination of the necessity and therefore the validity of a statute claimed be for the public advantage, vary greatly in its widely separate- sections It cannot therefore be assumed that there is any one standard which can be set for the entire country in accord- ance with which all these questions should be decided; 1 local conditions must be studied and the question in each case settled in the light of these conditions. This fact the Suprcn Court of the United States has repeatedly recognized, in holding that the physical conditions in California may well make it for the public advantage there to take water rights for the purpose of furnishing water to irrigate privately owned land, the court says : 9 "It is obvious . . . that what is a public use frequently and largely depends upon the facts and circumstances surrounding the particular subject-matter in regard to which the character of the use is ques- "To provide for the irrigation of lands in States where there is no color of necessity therefor within any fair meaning of the term. and simply for the purpose of gratifying the taste of the owner or his desire to enter upon the cultivation of an entirely new kind crop, not necessary for the purpose of rendering the ordinary culti vation of the land reasonably remunerative, might be regarded by courts as an improper exercise of legislative will, and the use might not be held to be public in any constitutional sense, no matter many owners were interested in the scheme. On the other hand, in a State like California, which confessedly embraces millions of acres of Fallbrook Irrigation District v. Bradley, 164 U. S. 112 (1896). FUNDAMENTALS 21 arid lands, an act of the legislature providing for their irrigation might well be regarded as an act devoting the water to a public use, and therefore as a valid exercise of the legislative power." In a similar case 10 the same court in recognizing the import- ance of local custom and opinion in the right determination of such questions, says: "When we come to inquire what are public uses for which the right of compulsory taking may be employed, and what are private uses for which the right is forbidden we find no agreement, either in reasoning or conclusion. The one and only principle in which all courts seem to agree is that the nature of the uses, whether public or private, is ultimately a judicial question. The determination of this question by the courts has been influenced in the different states by considerations touching the resources, the capacity of the soil, the relative importance of industries to the general public welfare, and the long-established methods and habits of the people. In all these respects conditions vary so much in the States and Territories of the Union that different results might well be expected. . . . The pro- priety of keeping in view by this court, while enforcing the Four- teenth Amendment, the diversity of local conditions and of regarding with great respect the judgments of the state courts upon what should be deemed public uses in that State, is expressed, justified, and acted upon in Fallbrook Irrigation District v. Bradley, ub. sup., Clark v. Nash, ub. sup., and Strickley v. Highland Boy Mining Co., ub. sup." Province of Legislature and Court. In order to under- stand fully the decisions of the courts with regard to the limits of powers like the police power and the power of eminent domain, it is important to keep in mind the respective pro- vinces of the legislature and the State and United States Courts in the decision of such questions. In theory the legislature and the courts are separate and coordinate departments of government. It follows that the courts, in passing upon a legislative act, cannot inquire into the motive of the legislature in enacting it nor the wisdom of the course it chose to pursue, but only into its power to act as it did, leaving it entirely to the legislature itself to determine the time, manner and occasion of its exercise. Nor have the courts the right lightly to overrule the decision of the legisla- 10 Hairston v. Danville and Western Railway Co., 208 U. S. 598 (1908). 22 THE LAW OF CITY PLANNING AND ZONING ture; on the contrary the court, before declaring the statute void, must be convinced of its invalidity beyond a reasonable doubt. This principle is stated by Chief Justice Marshall in a leading case on the subject 11 as follows: "It is but a decent respect to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt." The same principle is expressed by the same justice, per- haps with more accuracy, in another connection. "It has been truly said, that the presumption is in favor of every legislative act, and that the whole burthen of proof lies on him who denies its constitutionality." * Attitude of United States Courts toward State Laws. The attitude just stated is, in theory at least, that of the courts, both state and national, toward the acts of state and national legislatures. Where the United States Courts are reviewing decisions with regard to state statutes and constitu- tions, especially where the question of what is a public use or what tends to promote the general welfare, is involved, this attitude is even more pronounced; for the local conditions, which are so important in the decision of these questions, are presumably better known to the local authorities than to the justices of the United States Courts. For this reason the dec- laration in a state statute or constitution that a given use of property is a public use or a given regulation of property is for the promotion of the general welfare, especially if held valid by the courts of that state, has great weight with the United States Court. This principle by which the courts of the United States should be guided, the Supreme Court of the United States has repeatedly stated. Thus in another part of an opinion already quoted ia that court says: "Ogden v. Saundcrs. 12 Wheat.. n (I S ) 213 (18- "Brown v. Mary-land. i_' \Yluat. .11 (U. S.) 419 (1827); for a late case citing many others to the same effect, see Erie R. R. v. Williams, 233 U. 5. 685 (1914) M Fallhrook Irrigation District v P.radley. FUNDAMENTALS 23 "The Supreme Court of California has held in a number of cases that the irrigation act is in accordance with the state constitution, and that it does not deprive the land-owners of any property without due process of law; that the use of the water for irrigation purposes under the provisions of the act is a public use, and the corporations organized by virtue of the act for the purpose of irrigation are public municipal corporations organized for the promotion of the prosperity and welfare of the people. Turlock Irrigation District v. Williams, 76 California, 360; Central Irrigation District v. De Lappe, 79 Cali- fornia, 361 ; in re. Modera Irrigation District, 92 California 296. "We do not assume that these various statements, constitutional and legislative, together with the decisions of the state court, are conclusive and binding upon this court upon the question as to what is due process of law, and, as incident thereto, what is a public use. As here presented these are questions which also arise under the Federal Constitution, and we must decide them in accordance with our views of constitutional law. . . . "The people of California and the members of her legislature must in the nature of things be more familiar with the facts and circumstances which surround the subject and with the necessities and the occasion for the irrigation of the lands than can any one who is a stranger to her soil. This knowledge and familiarity must have their due weight with the state courts which are to pass upon the question of public use in the light of the facts which surround the subject in their own State. For these reasons, while not regarding the matter as concluded by these various declarations and acts and decisions of the people and legislature and courts of California, we yet, in the consideration of the subject, accord to and treat them with very great respect, and we regard the decisions as embodying the deliberate judgment and matured thought of the courts of that State on this question." * In accordance with this principle the Supreme Court of the United States has said : "See also Welch v. Swasey, 214 U. S. 91 (1909), where the court says it ''feels the greatest reluctance in interfering with the well-con- sidered 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 [viz. statutes regulating the height of buildings in cities] are passed is more familiar with the par- ticular 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 judg- ment, plainly wrong." 24 THE LAW OF CITY PLANNING AND ZONING "We therefore content ourselves with saying that while this court has refrained from any attempt to define with precision the limits of the police power, yet its disposition is to favor the validity of laws relating to matters completely within the territory of the state enact- ing them and it so reluctantly disagrees with the local legislative au- thority, primarily the judge of the public welfare, especially when its action is approved by the highest court of the State whose people are directly concerned, that it will interfere with the action of such authority only u'hen it is plain and palpable that it has no real or sub- stantial relation to the public health, safety, morals, or to the general welfare." u In applying this same principle specifically to the power of eminent domain the same court calls attention to the fact that : "Xo case is recalled where this court has condemned as a vio- lation of the Fourteenth Amendment a taking upheld by the state court as a taking for public uses in conformity with its laws. . . . \Ye must not be understood as saying that cases may not arise where this court would decline to follow the state courts in their determina- tion of the uses for which land could be taken by the right of eminent domain. The cases cited, however, show how greatly we have de- ferred to the opinions of the state courts on this subject, which so closely concerns the welfare of their people. ... It remains for the future to disclose what cases, if any, of taking for uses which the state constitution, law, and court approve will be held to be forbidden hy the Fourteenth Amendment to the Constitution of the United States." " Much uncertainty has existed in the law of this country with regard to those rights which have always been regarded as most important, such as that of liberty, equality before the law, property and due process of law. There are two main reasons for this unfortunate fact: first, the litigant is entitled to invoke the protection of the guaranties of both the national and state constitutions, and these guaranties, although dealing with the same fundamental rights, often vary both in form and in substance in the various constitutions; so that it is diffi- cult to determine whether and to what extent cases with regard to the same general subject in different jurisdictions are in isack Co. v. Chicago, 242 U. S. 526 (1917). The italics are the autli M Hairston v. Danville & Western Railway, 208 U. S. 508 at 607 (1008). FUNDAMENTALS 25 accord or in conflict. Second, until recently appeals in such cases from the state decision to the Supreme Court of the United States, by which alone such doubts and differences can be eliminated, were permitted only in those cases in which the state provision was upheld by the state court. By a recent change in law 17 appeals are now allowed whichever way the state court decided the question, and in so far as uncertainty was caused by this phase of the law it may be expected with time to disappear. It is generally conceded that the decisions of the Supreme Court of the United States have been more favorable to meas- ures intended to promote social reform than those of the highest courts of the individual states. 18 This is due in part, no doubt, to the fact that as a rule the members of the Supreme Court of the United States, chosen from the entire country, have had a wider and more varied experience than the judges of the highest courts of any one of the states ; but in part it has been because heretofore invariably, in cases of conflict of opinion in such questions, only the decisions sustaining state action have come before the United States Court for review, and these decisions were supported by the strong presumption in favor of the action of the state authorities. Difference between Police Power and Eminent Domain. For a statute or other governmental act to be a valid exercise of the power of eminent domain or of the police power, it is evident from what has already been said that it must in either case tend to promote the public health, safety, morals or general welfare. What, then, is the line of difference be- tween these two powers? The analysis of the cases seems to show that it is largely one of degree. Is it reasonable and proper, under all the circumstances, that the public good sought should be attained without compensation to those whose rights are to be limited to this end? If, on the whole, those affected are benefited by the measure, if the right surrendered can no "See U. S. Comp. Stats., 1916, Vol. 2, Sec. 1214; (Judicial Code, Sec. 237 as amd.) 18 See on this subject, Goodnow, Social Reform and the Constitution (the Macmillan Company, New York, 1911) ; especially pp. 329 ff. 26 THE LAW OF CITY PLANNING AND ZONING longer, in the light of advancing public opinion, be retained in its fullness by its present possessor, if the sacrifice to him is slight or if the number affected is great, so that compensation is impracticable in all such cases compensation is not pro- vided for; otherwise the law demands it. In the decision, his- tory, custom, opinion, as well as surrounding circumstances, play their part PART II PLANNING THE CITY AS A WHOLE The City Plan. Since the purpose of city planning is the attainment of unity in city construction, there must be, in all the steps of city construction worthy the name of city planning, either definitely on paper or more vaguely and variably in the minds of the makers of the city, a plan, in outline at least, of the city as a whole, to which any part of that planning, however small, shall relate. The creation of such a plan, covering the entire area within the city's sphere of influence, is the first task of the city planner, to be followed from time to time, as neces- sity arises, by the planning of details, extensions, and such modifications of existing features as unforeseen changes or further experience and study seem to dictate. 1 Content of Plan. What, then, should the plan contain? The complexity of city life is great, the factors of its physical development, numerous. In order to secure unity, planning should include and harmonize as many as possible of these fac- tors, public, semi-public and private, such as the systems of streets with their building lines or set backs, the waterfront and its improvements, the parks and other public open spaces, the public and semi-public buildings and their sites, the transpor- tation systems, both local and long distance, with their respec- tive freight and passenger stations and terminals, the gas, water, electric and similar public utility systems, the subdivi- sion of building land and the regulation of the height, area with relation to the size of lot, and use of structures on it. There is more or less adequate precedent for the inclusion of all the above features in a city plan in this country. 2 1 With regard to the limitation, for practical reasons, of the field of city planning, see p. i, note 2. a See p. 562, note 32. 97 28 THE LAW OF CITY PLANNING AND ZONING The entire urban area, however, need not be planned in detail. Thus spaces for public buildings and parks should be reserved, to be devoted to more specific uses and laid out as required; in the newer parts of the city only the principal streets need be fixed, leaving the minor streets to be filled in from time to time as the necessity for them arises ; and, beyond the present city, the city of the future may be left unplanned except for the laying out of the main thoroughfares connecting the city with the cities and villages outside, and, perhaps, the imposition of provisional building and zoning regulations for the areas between them. Partial Planning. Very few cities in this country have comprehensive city plans, although in many of them certain features have been thought out and executed with care and with good results. This partial method of planning is open to grave criticism. New York, for instance, built an extensive system of subway and elevated transportation to relieve con- gestion in the older parts of the city, which, for lack of zoning restrictions, has been instrumental in adding to the city new congested areas without greatly relieving those already in existence. Nevertheless partial planning is not necessarily a mistake. The American public is not educated to the neces- sity of a comprehensive plan, but is sometimes alive to the advantage of some one feature of such a plan, as, for instance, transportation or zoning; and the planner, unable to do what he would, must do what he can. In such cases, however, the need of a general plan should always be kept in mind, and a* an incident to the smaller task, as much of the larger under- taken as is feasible. This is in fact the practice of wise city planners; for instance, all good zoning is based on preliminary surveys, which are partial planning studies. Enforcement of Plan. The city plan, in order that the many features included in it may in their development be made to conform to it, must be enforced. These features arc widely different in their nature, and the measures to be taken to secure thU con funnily must vary accordingly. The public features, such as the highways and open spaces, are constructed by the city, or, if built by private persons, become public only by ac- PLANNING THE CITY AS A WHOLE 29 ceptance by the city; and the city, by controlling its own acts, can see to it that to this extent these features are in accord with its plan. The semi-public features, such as the privately owned utilities, are planned and constructed by private inter- ests but their location, in so far as it is on, over or under city property, is usually subject to the city's consent, which may be made dependent upon conformity to the city plan. 3 The im- provements of private land for private use are made by the private owners of this land. To some extent these improve- ments may be controlled indirectly by the planning of the city's public features, to some extent directly by building and zoning regulations, which are a part of the city plan. The legal right of the city to pass such regulations seems clear. This subject is taken up fully in that part of this work devoted to the planning of the private features of the city. 4 A measure of public control over land which is, and is to remain, in private ownership and use is essential not only to the regulation of its planning for such use in the public interest, but also to the carrying out of the public features of the city. If feasible the city could insure the possibility of the construc- tion of its public features as planned by purchasing the land needed for them ; but prudent planning must always anticipate present needs by many years. Cities, for lack of the necessary funds, seem never able to purchase more land than is required for the immediate future; and to attempt to assess the cost of improvements on land so long before these improvements are needed would be most unjust. Unless, therefore, the city can, by some method, make adherence to the public features of the plan binding upon the owners of the land affected by it, this land is sure to be used in ways which will make it very expen- sive and therefore practically impossible, when the time comes, to construct these features as they were originally planned. 8 The state also has the right to grant or refuse a charter to a utility and to amend its charter; and also to prescribe, within certain limits, the character of service and the rates to be charged for it. A portion of this power the state usually delegates to the city; and could delegate more. All these powers could be used to obtain conformity to the city plan. 4 Part IV. 30 THE LAW OF CITY PLANNING AND ZONING This the history of many American cities only too clearly ^Foreign Methods and American Attempts to Attain Similar Results. In foreign countries where city planning has been most successful, adherence by the land owners to plan of streets, and in some cases a few of the other mam features, of the future city is secured either by forbidding 1 land owner, between the time of the official adoption of plan and the taking of his land, to make any improvements likely to interfere with the execution of that plan or by pr< viding that when subsequently his land is taken, he shall receive no compensation for any such improvements. 8 has been in operation for many years, not only in Roman Law countries, but in England and Canada, whose laws and tradi tions are so like our own ; and has not been found to be unju to the land owner. The street is essential to the land owner in the profitable use of his land. The only right of which the plan deprives him is the right to build in the bed of mapped streets between the time when the plan is adopted and the when it is carried out. In the vast majority of cases this righ is worthless both because if the plan is a good one it indicate where the street and the building should be for the besl ests of the land owner and because if the plan is carried ou seasonably the street will be built before there is an econor demand for the building. The need of protecting planned streets from the encroacl ments of land owners has always been appreciated in this coun- try and, at various times many of our states have passed laws for that purpose. Everywhere in the Tinted States, however, except in Pennsylvania, these laws have l.een held to l>e a t; from the land owner of a right of use in his land and, ther fore, to be contrary to the provision of our Constitutn ^S^B^SSSui of the rule; see pp. 3" and 453, n. PLANNING THE CITY AS A WHOLE 31 no man shall be deprived of property for a public use without just compensation. 7 The increased interest in city planning within recent years in this country has revived and strength- ened the demand for some method of establishing the street plan on a secure basis, as is done abroad; and many sugges- tions have been made for the accomplishment of this result in a constitutional manner. It has been proposed that the city, when the plan is adopted, purchase or condemn an easement or option in the land, to acquire it, when needed, at its unim- proved value; but the expense of the purchase of this right, with the proceedings to acquire it, added to the expense of taking the land, later on, would unquestionably make the land cost the city too much, and laws authorizing cities to adopt such a course would remain a dead letter. 8 It has been suggested that the land owner, intending to improve land in the bed of mapped streets, should be required to give the city six months' notice, within which to acquire the land; but this, instead of protect- 7 See report just cited (Erection of Buildings within the Lines of Mapped Streets, Dr. Robert H. Whitten, November 20, 1917). The law is settled to the effect as stated in the text everywhere in the United States where the question has arisen, except in Pennsylvania. The cases are given in Lewis, Eminent Domain, 3d ed., sec. 226; Nichols, Eminent Domain, Sec. 101 (at p. 282) ; See also Windsor v. Whitney, 95 Conn. 357 (1920), considered on page 36 of this work. Of interest in this connection is the dictum in State v. Carragan, Collector, 36 New Jersey Law Reports 52 (1872) that "If the improve- ments should be made in bad faith, with intent to throw an undue burden on the public, another element would enter into the consideration of the question which might, perhaps, produce a different result" ; but see, Matter of City of New York (Briggs Avenue), 118 Appellate Di- vision Reports (N. Y.) 224 (1907) ; and notes on same, 36 L. R. A. N. S. 273, and 17 Annotated Cases 1034. Lewis, in his book on Eminent Domain, Callaghan and Co., Chicago, 3d ed., 1909, Sec. 226, Note 23, says, in explanation of the Pennsylvania decisions : "Such an Act was held valid in New York on the ground that it was passed before there was any limitation in the Constitution of that State upon the power of eminent domain, and compensation for im- provements placed within the lines of a proposed street was denied, al- though the street was not actually laid out until seventeen years after the map was made. Matter of Furman Street, 17 Wend, 649. This case was followed in Pennsylvania without noticing the ground on which it rested. Forbes Street, 70 Pa. St. 125." See in this connection People ex rel N. Y. C. & H. R. R. R. Co. v. Priest, 206 N. Y. 274 at 288 (1912). ' There is such a law in Connecticut for the planning of towns ; Re- vised Stats. 1918, Sec. 391-396. There are also laws for zoning by eminent domain ; see Tables of Statutes. 32 THE LAW OF CITY PLANNING AND ZONING ing the city, would furnish the land owner altogether too easy a method of forcing the city to buy his land at his pleasure, instead of at the pleasure of the city. 9 In a number of states laws exist which provide that the owner of land, wishing to lay out streets with lots abutting on them for sale, shall submit his subdivision to the city for ap- proval before the plan shall be recorded ; and also forbid utili- ties in streets until such approval is obtained. 10 The private street, laid out by the land owner, all too often for his immedi- ate profit, with no regard for the interests of the city as a whole or those of the people who are to live on the tract in question, while by no means the only offender against the city plan, is probably the commonest one ; and when the lots on such a street are sold to innocent purchasers and houses built on them, the city is practically forced to accept the street as a part of its public system, giving up its own plan in that locality; the only alternative seeming to be to allow the street to remain in private control, 11 thus continuing one evil without lessening the others. The provision for approval as a prerequisite to record is effective ; it is impossible in this country to sell land without a record title. The provision is also constitutional; 12 record being not a right but a privilege which the law, for rea- sons of public policy, may withhold. 18 Evidently such a pro- vision can be used to the best advantage only in connection with an accepted city plan, as otherwise the planning of any given plot would not be related to the plan of other tracts of land and of the city as a whole. Useful as are the laws providing for the approval of the Sec the report on the Erection of Buildings within the Lines of Mapped Streets already referred to; and for a more radical sugg< see "A Survey of the Legal Status of a Specific City in relation to City PlnnniiiK" by Kdward M. Bassett, in the Proceedings of the Fifth Con- ference on City Planning (Chicago, 1913), pp. 46 at 48. 'l-'iT precedents sec pp. 32, 578, 583, 587. M Unquestionably the city has the legal right to condemn the land for its own system of streets regardless of tin- existing private - and the buildings abutting on them; but it would be seldom indeed that any city would exercise such a right. "Bauman v. Ross, 167 U. S. 48 (1897). "See cases cited in 18 Corpus Juris, p. 247 (Sec. 186) and 248, note 65, (a); also State v. Register of luU _< Mum. 521 (1880); Van Husan v. Hcamcs, 96 Mich. 504; Contra, State v. Moore, 7 Wash. 173 (1893). PLANNING THE CITY AS A WHOLE 33 subdivisions of owners desiring to sell land, as a prerequisite to record of the deeds, they do not prevent the owner who does not wish to sell from improving his land in such ways as often practically force changes in important features of the plan, and in some cases their entire abandonment; as, for instance, by encroaching upon a mapped street, or building a factory or a row of costly houses entirely across it. 14 In order that the plan may be adequately guarded its main features must be protected by the police power of the state. It has therefore been suggested that an amendment to our state constitutions be urged giving cities the right to adopt plans binding land owners, as in Pennsylvania. At best, such amendments could be passed only after a long struggle ; and it is to be feared that they would be held by the Supreme Court of the United States (which has not as yet passed on the question) to be contrary to the fed- eral Constitution. It is true that with proper city planning a good plan will be made for undeveloped territory and will be carried out seasonably; but in this country the probability of good administration is not regarded as a sufficient safeguard against injustice in exceptional cases, as it is abroad. And there are many cases, especially in portions of the city already more or less built up, where injustice might be done. Take for instance a lot, all or an undue portion of which lies in the bed of a future street. The owner has nothing to gain by the street; and if, as often happens, its construction is delayed beyond the time when the lot might with profit be built up, the owner for many years must pay taxes on the lot, but cannot get-any return on it. Again, suppose a deep lot on an existing street with a factory on the front portion of the lot and a pro- posed street planned to occupy its rear portion. The entire lot would hold with advantage perhaps two additional factory buildings. If the owner wishes to construct one such building, he can put it in the middle of the lot, and there is no loss to him in depriving him of the use of the bed of the mapped street; but if, in course of time, he needs a third building, the only land for it is the land devoted to the future street; and 14 See the Report on the Erection of Buildings within the Lines of Mapped Streets just referred to. 34 THE LAW OF CITY PLANNING AND ZONING it is unjust to deprive him of the only use he can make of that land for many years. It is no answer to his claim of damage that when the rear street is built his land will be benefited, for under proper laws he must pay for that benefit when it comes. And the city may change its mind and never build the street ; in spite of the fact that for years it has kept it on the map. A New Method of Protecting the Plan. As a method under the police power, of making a city plan of streets and perhaps a few other features binding upon property owners which, it is submitted, would be just to them and valid under our constitutions, it is suggested 15 that municipalities shall be authorized by state law to adopt plans binding upon them until amended in due form. If a land owner desires to locate an improvement in the bed of a mapped street or within mapped building lines (or perhaps on land destined, by the plan, for a small park or playground, or the site of a public building) he shall apply, in the building permit, for permission to locate an improvement contrary to the provisions of the city plan; and when, ultimately, the land is condemned he shall recover no damages for the improvement if it is so located without per- mission. The city, through its building department or other proper authority, shall grant this permission only when its re- fusal will unavoidably do the land owner substantial economic injury and in this connection shall take into consideration the possible uses of other land in the neighborhood belonging to the same owner and the possibility, in whole or in part, of changing the improvement or its location. From the decision of the building department refusing per- mission to locate contrary to the city plan, there shall be an appeal to a board of appeals, who shall have the power to grant the permission with conditions calculated to lessen or alto- gether to avoid the expense to the city due to improvements when, later, the city condemns the land ; no appeal to the courts "The suggestion was first made by the author at the session of the naj Conference on City Planning held at Pittsburgh in 1921 ; at which time Edward M. Bassett, Esq., suggested valuable improvements which, with his permission, are here adopted ; see the Proceedings of the Conference, and an article by the author in the National Muni* i>n with power to establish a street and building line plan for this territory; gives the land owner an appeal to the courts if he considers the plan for his land unreasonable, and forbids land development, the sale of lots and the erection of buildings not in conformity with the officially adopted or sanctioned plan. No compensation for the estab- lishment of the plan is provided for. In his brief in support of this act the attorney for the town of Wind- sor says: "We anticipate that the defendants will claim that a man has a right to build and use private ways on his own land, that that is all that the present scheme amounts to, and that the State cannot interfere with this right without compensation. Without denying the right of a land owner to maintain private ways on his own land which do not affect other prop- erty, directly r indirectly, we shall show that this is not the situation involved in the present case. "Section ii of this act provides that the provisions of the act shall not apply to the Windsor Fire District, in other words, to the village of Windsor. The growth of the City of Hartford toward the North is extending into the southerly part of the Town of Windsor and land development schemes like the one engineered by these defendants are now in progress and probably will be more numerous in the immediate future. The present act is intended to properly provide for the conditions which prevail in the outskirts of a city. "The complaint states that the defendants are endeavoring to sell a large number of building lots. The two parallel streets are 800 f If the building lots are 50 feet wide, the usual width, there will be i'> building lots on each side of each of these streets, a total of 64. In addition there will I* building lots on the cross street. It is obvious that in the natural course of events there will be a large number of h erect**! on this tract within a few years and that a considerable number of people will live in them. This is not only probable but is the result which the defend mt* contemplate and arc trying to bring about It i<; respectfully submitted that this enterprise is one in which the State of Connection h., late interest. "If within the next few years this tract contains numerous dwellings fd a 'le population, it will become the duty of the State of Connecticut and its agent, the Town of Windsor, to provide fire pro- PLANNING THE CITY AS A WHOLE 37 Illustrations, of the service which a board of appeals could render in the administration of this provision of the planning law are numerous and varied ; and of these illustrations I will cite three. tection and police protection. In the interest of safety and morality lights must be provided. In the interest of health a sewer must be in- stalled. Water must be furnished. The children must be provided with school facilities. In caring for all these essentials the State must use streets. We all know from experience that the normal result of such an enterprise is that the town sooner or later takes over such streets as public highways. If it does, grading, curbing, drainage, etc., become necessary and expensive. But whether these streets become public high- ways or not, the above public duties and many others will be eventually thrown on the Town of Windsor if the project of the defendants becomes a success. "We think further that the State and its agent, the town, are fairly entitled to take into consideration the relation of the tract in question to the general lay-out of highways in the town, both those already exist- ing and such highways as the future is likely to call for in the neighbor- hood. It is obvious that if one land owner lays out streets according to his notions and the adjoining owner adopts an entirely different scheme, when the town eventually takes both groups of streets, the performance of its public functions will be greatly complicated. Wide, straight streets are not merely beautiful they are the best streets for practical purposes. It is certainly not unreasonable that the town should have some control over the matter in advance. "It may be contended that the time for the town to take a hand in the matter is when the necessity for actual public care arises. But we respectfully maintain that the State is fairly entitled to look forward to probable conditions contemplated by the parties in interest with proper foresight for its future duties and that this is supported by common sense and by the authorities which we have cited above. It is ridiculous to 'say that the State must stand by and watch the defendants and their vendees build up a considerable community and then step in and straighten out the street problems at greatly increased expense to both the State and the parties then concerned. The prudent and sensible thing for the State to do is to have its say now. This is what the present act seeks to accomplish. It is clear from the above citations that the police power of the State would enable it to handle the situation when the community has once come into existence and we think it equally clear that the police power of the State is broad enough to enable it to antici- pate the future conditions indicated by the situation." In sustaining the Act, the Court says : "Unless this regulation can be supported as a legitimate exercise of the police power, the Act must fall. A town commission plan such as this Act contemplates is distinctly for the public welfare. Its theory is to lay out streets when and where the public need them, and of adequate width to meet the requirements of the community and of transportation. In such a plan each street will be properly related to every other street. Building lines will be established where the demands of the public re- quire. Adequate space for light and air will be given. Such a plan is wise provision for the future. It betters the health and safety of the community ; it betters the transportation facilities ; and it adds to the appearance and wholesomeness of the place, and as a consequence it 38 THE LAW OF CITY PLANNING AND ZONING If a land owner desires to erect a brick structure in the bed of a mapped street, the board of appeals could offer to authorize a wooden building, pointing out that such a building could be amortized in a given number of years, with a fair return to the land owner on the value of his land. No court could hold that (in the absence of other complications) the land owner was rightly aggrieved to whom such an offer was made, even if he could obtain a larger amount by violating the city plan, contrary to the general interest: for if the return is a fair one he is not unjustly deprived of his property. If a building were proposed a part of which only would project into the future street, the board of appeals could offer to consent to a building of which the projecting portion was only one story high ; backing up the proposal by plans showing the suitability and yield of such a building in such a location. reacts upon the morals and spiritual power of the people who live under such surroundings. The demands of a large city may excuse conges- tion, hut in a small city or a country town there is no excuse for such living conditions. But unless some authority controls and regulates the land development, we may look for too narrow streets, too few or n > building lines, and buildings erected, unstable in character, unsuitable in material, and inappropriate in construction. Our large communities all have their examples of the unregulated layout of streets and buildin-,- lines and buildings ; of instances of land development so as to yield the last penny to its promoters regardless of the public welfare: of com- munity eyesores; of streets made over, whole sections changed, because at the beginning no reasonable provision was made for the safety, health or welfare of the community. "Such an Act as this is conceived in public wisdom and serves great public ends. Courts will be reluctant to destroy it and with it its benefi- cent purposes " 95 Conn. 362-3. It should be noted that there is a material difference between the Connecticut statute and the statutes for the establishment of city plans sustained by the courts of Pennsylvania and held invalid in all the other states in which the question has been raised. The Connecticut statute, unlike the others, provides for a modification of the plan to suit special circumstances and remove special hardships, granting the land owner feeling himself aggrieved an appeal to the regular courts for the pur- pose; and it is for this reason that the Connecticut judges, in the case under examination, in which the owner did not avail himself of this method of relief, arc justified in assuming that "the regulations as to the t of the streets and building lines, and as to the issuance of huildinn permits, arc reasonable for that section and location." It may well In- that, under Connecticut law and procedure, provisions for mdit of the plan by appeal to the regular courts, especially in admini- 1 an act which applies only tn outlying territory, would work well ; when-a- under acts to be made applicable also to city land, provisions for a board of appeal, more or less as suggested in the draft act given above, would be more appropriate. PLANNING THE CITY AS A WHOLE 39 If the city intended to build the street within, perhaps, five years, the board could be authorized, with the consent of some proper city authority, to agree with the land owner that the city would build it within that time. This agreement would usually make it certain that the location of the building with relation to the future street, so soon to be built, was the most profitable one, especially if the building was to be expensive. A provision, under the police power, making a few of the essential features of the city plan binding upon the land planned is essential to the success of city planning in this coun- try. The provision here suggested would seem to accomplish everything which is secured by the provisions, for the same purpose, of foreign laws, by methods already familiar in this country, and therefore more likely to win the approval not only of city planners, but of our courts. The Control of City Development. The purpose of city planning is the attainment of unity in city construction. To that end the power to establish and protect a city plan is neces- sary but not sufficient. In addition some measure of power to determine the order and time of development of outlying land is necessary. In this country, and in most parts of the British Empire, the land owner may convert his agricultural land into prospective building lots wherever and whenever he pleases. The result is often a premature subdivision of land, with a re- sulting economic waste, and always an undirected city growth. German Methods of Control. The development of out- lying land is controlled, to a considerable extent, in some of the German states by imposing upon it zoning regulations allowing only low, detached residences, covering a small percentage of the lot, in other states by forbidding all subdivision of land and construction of permanent improvements until the city decides that the land should be developed, and establishes a plan and building or zone regulations, thus fixing the direction and character of city growth. In England, the English speaking colonies, and this coun- try, vacant building land abutting on more or less improved streets, with many if not all the city utilities, is to be found here and there throughout the city, the amount of it increasing 40 THE LAW OF CITY PLANNING AND ZONING greatly as the outlying portions of the city are reached, and the city gradually and irregularly fades out into the open coun- try, or, sometimes, jumps considerable areas in its progress. In continental European cities the development is more uni- form, with fewer vacant lots, especially as the city's outer edge is approached, where abruptly the city ends and the open coun- try begins. In Germany this tendency toward uniform development is strengthened by the German method of "city extension," en- forced by prohibition of improvements in advance of it ; 18 new streets there being planned and constructed only in a narrow strip of land immediately beyond the solidly built existing city, as immediate necessity for building land from time to time arises, building lots being forbidden elsewhere. The strips of land thus improved do not necessarily, or usually, extend around the city, but only in the directions where growth is considered most advantageous. It should be noted that the city plan for the purposes of "city extension," since it covers only areas nec- essary for immediate use, is usually supplemented by another plan indicating the city's proposed lines of growth for many years to come. Our "laissez faire" method of city construction, the Ger- man orthodox planner objects to, first, because it unnecessarily swells the expenses of administration, such as police, postal delivery, etc., and of furnishing the utilities, such as gas, water and transportation; secondly, because it increases the cost of land development and ultimately land prices and rents by adding to them interest and maintenance charges for unused and partly used improvements; thirdly, because it hastens unduly the turning of agricultural land into building lots which remain unused for long periods, thus again augmenting land prices and rents. Land speculation, however, still continued in Ger- many in H)i4, before the War, and many German economists thought that the limitation of building to a narrow strip of land created monopoly values. It has been pointed out that the vacant lot furnishes light and air to structures on neighboring land, and tends to K " There are other causes for the solidly built German city ; see p. jOO. PLANNING THE CITY AS A WHOLE 41 congestion. A more uniform development, however, may be secured by limitations on the height and area of structures, by zones, if desired, and thus light and air and relief from con- gestion obtained. A Suggested Canadian Method of Controlling City Development. The German method of controlling city con- struction just referred to, would be impossible in this country not only because it would be held to be a taking of property rights without compensation, but because it would be considered unjust. In Canada a method of obtaining in a measure at least the advantages of the German system without its disad- vantages, has been independently worked out. 19 In some of the Canadian cities land booms, now partially at least collapsed, have unduly stimulated the cutting up of agricultural land within city limits into building lots. Some of these cities are making rules 20 allowing these owners to classify this land as 18 See on this subject an article by Thomas Adams in the National Municipal Review for March, 1919, entitled "Town Planning in Relation to Land Taxation." "Typical of these regulations is the following: CITY OF EDMONTON Resolutions passed by the City Council at a special meeting, September 29, 1919, dealing urilh the problem of assessment and taxation on out- lying stibvisions in the City of Edmonton. 1. That no portion of the City be excluded from the present limits of the City, except certain portions which may be excluded by the City for topographical or engineering reasons. 2. That the City be divided into an inner or residential area, and an outer or agricultural area. 3. That the line separating and defining these two areas be fixed by the City with a view to the development of the City at the present, day and the probable development in the near future, this boundary as so denned to be fixed by the Utilities Board and subject to change only upon recommendation of the city and the consent of the Board. 4. No new plans of subdivision to be allowed in the outer or agricul- tural area, except in cases where land is ripe for development for resi- dential purposes, when it shall be brought into the inner area in the manner above provided before being subdivided, the idea being to en- courage cancellation of existing subdivisions in the outer area by allow- ing reduced assessments, so soon as plans are cancelled. 5. No utilities, except as required for trunk lines or other engineering reasons vo be extended into the outer area. 6. The lands in the outer area to be assessed at their real value for agricultural, horticultural or such other purpose for which they may be used provided that lands actually being used for agricultural purposes shall not be assessed at an amount in excess of Two Hundred Dollars ($200) per acre for a period of five years. 42 THE LAW OF CITY PLANNING AND ZONING agricultural, on condition that they cancel all existing subdivi- sion and agree, as long as this classification is retained, not to make any new subdivision. In return, the city agrees to tax the land at a low rate. It is understood that no city improve- ments, except such as are appropriate to agricultural land, shall be made in agricultural areas. When the owner wishes to obtain a classification of his land as building land, he must at once pay an increment tax of fifty per cent on its increased value and thereafter is liable for taxes at the regular rate. It is calculated that the city will not lose in taxes more than it saves in interest and administration ; and that the present owners of the land and the final owners of it and the homes on it, will be greatly benefited, thus again benefiting the city. Such an arrangement would be entirely possible in this country in any case where it seemed desirable; for, entered into voluntarily by the land owner, it is neither unconstitutional, under our legal system, nor unjust. 21 7. That a reduction of not more than forty per cent, be made in the mill rate for lands in the outer area. 8. No compromise for back taxes, but an extension of the time for payment not over ten years. 9. That there be paid to the City in respect of any land located in the suburban area that may hereafter be assessed on the basis of assess- ment for lands in an unsubdivided state on the first sale thereof after the date of assessment on the said basis, one-half of the increase in value, if any, as shown by the sale price thereof, and the average of the assessments of the said land from the said first assessment to the said sale and on each subsequent sale thereof the same proportion of the in- crease in value, if any, as shown by the sale price thereof and the average of the assessments since the preceding sale, until the said land shall be brought into the urban area, or shall be assessed on the same basis of assessment as lands in the urban area, whichever shall first happen. 10. That there be a penalty or a wild lands tax imposed on all agri- cultural lands in the outer area not put under cultivation 11. That the Board of Public Utility Commissioners be asked to use their powers to reduce the costs of cancelling plans of subdivisions. * More or less similar to the Edmonton, Canada, rules is the system of taxation for manv years in vogue in Philadelphia. In that city land is cd as rural, suburban and urban, rural land paying one li.ilf and suburban lands three-quarters the full urban rate. It has not been the practice in Philadelphia to make any improvements in the rural areas. In many cities, as, for instance, Hartford, Connecticut, certain areas arc, or at one time were, taxed as agricultural. Laws are not uncommon separating rural land fiom cities at the request of the owners. PART III PLANNING THE PUBLIC FEATURES CHAPTER I ACQUIRING THE LAND The City's Need of Land. One of the greatest needs of the modern city is land. The city requires land for its many public features, such as streets, parks and playgrounds, docks, reservoirs, sites for public buildings, and many miscellaneous uses. These features are essential to the growth and prosperity of the city, to the happiness and physical and moral health of its inhabitants ; and they all require land for their construction. Probably at a moderate estimate 40 per cent of the total area of the city of today should be devoted to public uses. Unfor- tunately very few cities have anything like this percentage for such uses. It seems impossible for the modern city to obtain a sufficient supply of land to keep up with its ever augmenting need of it; and the more the supply lags behind the demand, the higher the land is in price and the harder it is to catch up. The City's Difficulties in Obtaining Land. In its efforts to obtain the land it requires the city encounters many difficulties. Usually it lacks capital for the constantly increas- ing plant and equipment, including land, necessary today for success in all great business enterprises; generally its methods of obtaining its income are faulty, and less productive and more burdensome than they should be ; and almost invariably it does not acquire its land at a reasonable cost. Effect of Legal Restrictions. It is a well-known fact that public improvements cost more than similar private enter- 43 44 THE LAW OF CITY PLANNING AND ZONING prises. There are many causes for this. Public officials are sometimes less honest than private administrators, or less capable, or less devoted. 1 Invariably, however, the conduct of public business is hampered by legal restrictions from which private affairs are free. This is especially the case with the purchase of land. Price Governed by Cost in Condemnation Proceedings. A city has the legal right to obtain land by agreement with the owner ; but in this country and in England land is acquired only for a use specifically stated at the time in accordance with plans announced in advance. The owner, therefore, knows that his land is essential to the city and could usually extort an extravagant price for it, but for the fact that the city, under eminent domain, can take it without his consent. For this reason the cost of land to a municipality is its cost as obtained under the power of eminent domain ; and it is only in so far as that power is suitable for the purpose that the city can obtain land at a reasonable price and, therefore, in a sufficient quantity for its needs. Legal restrictions upon the exercise by a public body of a power like eminent domain are an expense to the public in two ways: they decrease the power of the city to act effectively, and they increase the number of required formalities with their attendant delays and expenses. There is, however, a necessity for a measure of such restriction. A municipality, for instance, should be required to give the public due notice of its plans, and time to examine them, so that they may more surely con- form to public wishes. The individual also needs protection in his private interests against the arbitrary use of governmen- tal power. Restrictions on this and similar powers should, therefore, be imposed, but they should be examined and analyzed with great care in order that only those which are useful may be retained and that these may be made as simple as is consistent with the fulfilment of their purpose. *Lawson Purdy, Esq., for many years President of the Board of Taxes and Assessments of the City of New York, has said, however, "In my opinion public officials arc usually mors honest than private adminis- trators, and more devoted, hut often less capable." ACQUIRING THE LAND 45 Duplication of Constitutional Limitations. Through- out the civilized world the power of eminent domain is very properly subject to the limitation that it shall be exercised only for the public advantage, on payment to the owner of just com- pensation. The power of taking private property without the consent of the owner is one from the arbitrary use of which the individual citizen should be protected. In other countries property, in common with life and liberty, seem to be sufficiently safeguarded by statute, or at most a constitutional provision, interpreted by the legislature; but in this country these rights are guaranteed by both state 2 and national constitutions, con- strued and upheld by the state and national courts. This dupli- cation is easy to explain historically. The so-called bill of rights, containing these guaranties, was a valued part of the state constitutions long before the creation of the national government. The federal constitution has always defended the citizen against federal oppression, but it was not until the fourteenth amendment was passed in 1868, as a result of the Civil War, that the United States, to any extent, attempted to protect the citizen from his own state. Meanwhile, the state bill of rights had become sacred in popular estimation, and in none of the many revisions of state constitutions has it been omitted. . Time-honored as it is, there is nevertheless reason to doubt whether there is sufficient cause for the continuance of this duplication, often enabling the litigant to appeal first to state and then to national courts for relief and delay. As passed on by the Supreme Court of the United States, it is true that these provisions are more favorable to modern social reforms than * From some of the early statutes and decisions with regard to the taking of land for roads in a few of our states it might seem that there were exceptions to this rule. In these states, in early times, it was customary to give with every grant of land, a certain excess to pro- vide for public roads. In these cases, therefore, it was not a taking without compensation to require the grantees to surrender the land for roads without payment, and the decisions allowing such a practice are not contrary to the accepted doctrine. The opinions do not in these cases always make this fact clear. For references to the statutes and the cases under them see Lewis, Eminent Domain (3d ed.), Sec. 674, Nichols, Eminent Domain (2d ed.), Sec. 204. 46 THE LAW OF CITY PLANNING AND ZONING when construed by most of the state courts. 3 Few, however, will deny that every essential right of the individual is pro tected by the United States Courts; and the abolition of bills of rights and similar guaranties in the state constitution would certainly simplify procedure and lessen delay an "The national constitution provides, in effect, 4 that private property shall be taken by authority of the United States or of any state only for public use, on payment of just compensatu Not content with this amount of protection to the private prop- erty of their citizens, or even with inserting a like protection n their own constitutions, many states have provided additiona safeguards. Thus in some states compensation is required by the constitution for property which, although not actua ly taken, is "damaged," "injured," or "injuriously affected authority of the state, and in some states there are statutes the same effect. This, as will appear in the chapter with rel tion to street construction, 5 is no more than just. Some state require that in all cases or in all except where the state or municipal corporation is the taker, the compensation shall paid, or secured, before" the property is taken. This, in any event where a private individual or corporation is the taker, i: a proper protection of the property owner. To some ex decisions under the simpler provisions supply the prote which these additional clauses expressly grant. 8 Just Compensation. The provision in the national the state constitutions that the private owner shall be paid a "just compensation" for his property has occasioned much c< troversy. In the various states this clause, in this simple has been interpreted by the courts in various ways, states there are additional constitutional provisions on the su ject ; in others there are more or less similar statutes. 'jftAJS^l* amendment) that no state shall deprive any person of property without < -f law; and the cases hold that without just compensation is due process. l Lew's, Kmintnt D*~i* (3d ed.), Ch. VIII. * held that the compensation must be in money; Nichols, Domain, (zd ed.), sec ~'u5 ACQUIRING THE LAND 47 additional constitutional and statutory provisions, in their turn, have been passed upon and interpreted by the courts. What is the result in the different states to the property-owner and the public ? Taking Entire Tract. Where the entire tract or parcel of land of a given owner is taken, the question of what con- stitutes a just compensation is comparatively simple. Univer- sally in this country it is held to be the fair market value of the land and whatever improvements there are on it. In some countries a percentage is added as compensation for the fact that the taking is compulsory. 7 In this country such is not in theory the case, although in fact juries often increase awards on this account. The subdivision of the title also may increase the amount which must be paid for the land, especially where, as in England, long leases are common, and the profits and good will of the business conducted on the leased premises, are evidence of the value of the lease. 8 It is not the land, but the interest of the various owners in the land which, in most juris- dictions, the state takes ; 9 and evidently the sum of the values of these interests may exceed the value of -the land itself. In this country, where long leases are rare, and profits and good will are not evidence of their value, subdivision is seldom a serious matter. It remains substantially true, therefore, that where an entire tract of land is condemned, the amount which the state must pay for it is the amount of its improved value. In calculating the value of an entire tract the increase due to the improvement for which it is condemned is not taken into account; for it is not a part of the value of which the owner is deprived, but a gain produced at the expense of the maker of the improvement for which he should not be compelled to 1 This, known as "Compensation for Disturbance," was formerly com- mon in England. See Cripps, Law of Compensation (4th ed., London, 1900^, p. 103; Ministry of Reconstruction, Report of Committee on Ac- quisition and Valuation of Land for Public Purposes, 1918, parts i and 2. In condemnation by public bodies it is no longer the practice ; Acquisi- tion of Land (Assessment of Compensation) Act, 1919. It is not the law or practice in Canada; K. v. MacPherson, 20 Dominion Law Reports, 988 (1914). "Ibid. * This is the law in England, and considered the better law in this country; Nichols, Eminent Domain (2d ed.), Sec. 118. 48 THE LAW OF CITY PLANNING AND ZONING pay twice. Sometimes, however, this increase is brought indi- rectly to the attention of the jury; for unquestionably the value of the property must be based not alone on its present use, but on its suitability for any use, including, of course, that for which it is actually taken. This is one reason why awards are high. Indeed, there is a very general feeling and belief that the public usually pays too much for the land it condemns. Many suggestions for fixing rules or standards for the price of the land in condemnation proceedings have been made, few if any of which seem likely to secure a fair valuation. Taking Part of Tract. It is where a part of the tract of an owner is taken for a public improvement that the differences in the rules determining what constitutes just compensation are most numerous and acute. All are agreed that, in addition to the value of the part taken, the owner shall be credited with the damage, if any, which the improvement causes to the rest of his tract. Should he not also be debited with the benefit due to it from the same cause? If not, will he not receive from the public more than is due him, and a public improvement to that extent be made unduly expensive ? In so far as the bene- fits are general there is no sufficient reason why he should be compelled to pay when the others are not, no injustice in taxing all the land owners for this element in the improvement by which all gain. To the extent, however, that the benefits which he receives are special to him, it seems manifestly just and expedient that the value of these benefits should be a charge against him in condemnation, as the assessment of local benefits makes them such in taxation. 10 This, however, is not the pre- vailing rule, although, with the spread of local benefit taxation, it is becoming more general. 11 10 With regard to local benefit taxation see p. 363, fT. 11 In England, neither the debit of the value of the improvement, in condemnation proceedings, nor benefit taxation, are common; hut both are increasing; and both are the rule in Canada and Australia. See Cripps, Compensation, p. 96, and the Report of the Commission on Acquisition and I'aluation of Land for Public Purposes, already cited. For a state- ment of the law in the various states in this country with references to the constitutional provisions, statutes and decisions see Lewis, Eminent Domain (3d ed.), sees. 687-693; Nichols, Eminent Domain (2d ed.), Ch. XVI. Lewis (sec. 687) summarises the law in this country as follows: ACQUIRING THE LAND 49 Importance of Procedure. The property owner, if he is to be protected in his rights, must be guaranteed not only a just compensation for his land but a reasonable opportunity to obtain this compensation. Substantive rights without adequate "THE QUESTION OF BENEFITS "While the authorities are agreed that, where part of a tract is taken, just compensation includes not only the value of that which is taken, but damages, if any, to the remainder, there is great diversity of opinion as to the right to take into consideration the benefits which may accrue to the remainder by reason of the appropriation of a part to public use. In some States the consideration of benefits is prohibited by the constitution. Sometimes the statute conferring authority to condemn prohibits any deduction for benefits in estimating the compensation or damages. In the absence of any such constitutional or statutory provisions, it becomes a question of construction as to the meaning of the phrase 'just compen- sation' in the constitution. The decisions may be divided into five classes, according as they maintain one or the other of the following propositions : "First. Benefits cannot be considered at all. "Second. Special benefits may be set off against damages to the re- mainder, but not against the value of the part taken. "Third. Benefits, whether general or special, may be set off as in the last proposition. "Fourth. Special benefits may be set off against both damages to the remainder or the value of the part taken. "Fifth. Both general and special benefits may be set off as in the last proposition. "It will be observed that these propositions pass from one extreme to the other." The fourth result seems to be the correct one. The arguments for it are convincingly stated in Lewis, sec. 693, as follows : "CONCLUSION AS TO THE QUESTIONS OF BENEFITS "The law in regard to benefits is now pretty well settled in every State, either by the decisions of its courts, or by its statutes, or its con- stitution. While different and conflicting rules prevail in the different States under precisely the same constitutional provisions, it is evident that there can be but one absolutely correct rule. In taking private prop- erty for public use the State acts rightfully and not as a wrong doer. It guarantees just compensation, and nothing more. In arriving at what is just compensation the matter is to be viewed in the same light as though the State had bargained with the owner for a portion of his land and had agreed to make him just compensation therefor. It is self-evi- dent that, where a part of a tract is taken, the just compensation cannot, be determined without considering the manner in which the part is taken, the purpose for which it is taken, and the effect of the taking upon tint which remains. All the authorities concede this so far as damages ti the remainder are concerned, and the justice of so doing may be taken for granted. But what justice is there in considering the effect in so f'M- only as it produces damage? If a railroad is constructed through a farm and drains a valuable spring whereby the remainder is depreciated five hundred dollars, it is conceded that just compensation must include this five hundred dollars. But if, instead of draining a valuable spring, it drains a marshy tract so as to make it worth five hundred dollars more for actual use, the same sense of justice requires that this five hundred dollars of benefits should be considered." 50 THE LAW OF CITY PLANNING AND ZONING means of defending them are of no value. This fact our con- stitutions recognize. Under the fourteenth amendment to the Constitution of the United States, "no state shall . . . deprive any person of ... property without due process of law." A more or less similar provision is also contained in the constitu- tions of most of the states. In eminent domain this clause has been held to affect the substantive rights of the property own- er, and due process must include provisions for the payment of just compensation. The main purpose of the clause, however, is to regulate procedure. It guarantees the property owner a method of obtaining his compensation calculated to obtain jus- tice and in accordance with the spirit of our institutions and law, as shown in our history. The clause does not prescribe any particular procedure, but, on the contrary, is satisfied by a great variety of methods. There are, however, certain requi- sites which are essential. The courts have held that there must be provisions for ascertaining fairly the amount of compensa- tion, for reasonable notice and for a hearing of those interested. Any procedure which fulfills these requisites is due process under these constitutional guaranties. There has been a growing feeling of late that our condemnation procedure is not well suited to the attain- ment of its purpose. Frederick Law Olmsted, the well-known landscape architect and city planner, said a few years ago on this subject 12 and there has been no considerable change in law or practice since that he had discovered an "astonishing variation in the practical efficiency of methods actually employed and prescribed by law or legal custom in different parts of the United States in acquiring land for public purposes, in dis- tributing the cost of public improvements, and in other proceedings ^cntial to the proper shaping of our growing cities to. the needs of their inhabitants. Mere variation in method would be of little more than academic interest in itself, but variations that result in obstructing the path of progress in one community and clearing it in another are of large practical importance. The extent and signifi- cance of these practical variations have impressed themselves more and more strongly on the writer in the course of an extended prac- "In his Introduction to Carrying - r.ulir.il than the one recommended in the report, was inaugurated by the Acquisition of Land (Assessment of Compensation) Act, 1919, referred to there. ACQUIRING THE LAND 55 Change of Attitude Toward Procedure. Valuable in itself as is the study of procedure in eminent domain under the auspices of the Russell Sage Foundation, it is most significant as an indication of a change of attitude toward such problems. Hitherto we have been chiefly concerned with the objects to be attained in our legislation and have not sufficiently realized the importance, in their attainment, of the methods to be employed for the purpose. It is not until comparatively recent times that we have begun to give serious thought and study to procedure. The first result of increased attention to methods has been an increase in the complexity of our laws. This has been espe- cially so in eminent domain, where, more perhaps than in most subjects, technicalities and delays involve expense which must be paid for by the public as a part of the price of the land it acquires. The study of procedure, for which we are so much indebted to the Russell Sage Foundation, indicates that we are beginning to realize that complicated and cumbrous ma- chinery in eminent domain is an evil which must and can be remedied. Few reforms would more aid the cause of city planning and efficient city government generally than a reform in the procedure in eminent domain, in which studies such as this one are a necessary first step. Condemnation for General Public Use. Several recent American writers on municipal government have advocated for our cities the policy of acquiring a large amount of land within the city limits and in its environs, and cite German practice in support of it. A few German cities own very large amounts of land. In so far as this land is acquired in excess of the city's own needs, the purpose of the acquisition is as a rule to con- trol the price of building land, and thus enable the citizen to buy land or rent a house at a low cost. This policy has by no means been uniformly successful in Germany and, just before the War, was still regarded in some quarters as a doubtful experiment. It is only in certain directions and certain parts of the vast periphery of our cities that development will be rapid and the increase in land prices great. In Germany the growth of the city in the direction of the publicly owned land can be made certain by forbidding improvements in other direc- 56 THE LAW OF CITY PLANNING AND ZONING tions ; 1T yet land ownership by the city has by no means always been profitable. As a general policy the extensive purchase of land by German cities is too recent as yet to be judged by its results. Certainly at the prices at which suburban land is held in this country, such a policy cannot be conservatively advo- cated, even if legal; and many city planners in England believe the same to be true there. Cities in Germany that do not buy land to control or influ- ence the realty market, do nevertheless purchase land for many purposes, such as the erection of workmen's houses, not here regarded, until very recently in any event, as public. This, however, is by no means the only reason why such cities own more land than cities in this country. In Germany the city acquires land for its ordinary needs in advance. In this way land may be selected best suited for the various public uses. Under such a system, too, planning may be made better to suit land used for public purposes. This policy of acquiring land in good season we are, in a measure at least, prevented from adopting by the way in which we, in practice, interpret the requirement that property shall be taken only for a public use. This we regard as meaning that each separate piece of property must be taken for a specific public use named at the time of the taking; 18 whereas in Ger- many this is not considered necessary. It is undoubtedly easier for us by our method to prove the city's case; but, it is sub- mitted, there is no legal reason why, under a statute drawn for the purpose, we in this country should not take land for any legitimate public use to be determined later, 19 and no insuper- able difficulty in proving such a case for the city, especially since we are beginning to recognize that there is a certain proportion 9 See pp. 39- 457- M This is in part due to the desire of the courts that the relevant facts should appear dearly and specifically in the pleadings. See in this con- nection Nichols, Eminent Domain (zd ed.), ch. XXIII; Noell v. Tennes- see, etc., Co, 130 Tenn. 24? at 250 (1914). "The policy of taking land for general public use was advocated by the recent "Land Enquiry Committee" in England; see their report The Land, Vol. II, p. 289 and ff. (Hodder and Stoughton, London, 1914). Apparently such a taking is legal in Saskatchewan, Canada; see its Stats. 1915, Ch. 16, sec. 204, par. 80. ACQUIRING THE LAND 57 desirable between population and public land. It is a significant fact in this connection that, although under present practice in this country property is always condemned for a specific public use, it may nevertheless be diverted to other uses. 20 20 Sometimes a state statute forbids a city which has obtained the fee or absolute and complete title to land for a certain purpose, as for in- stance for park use, to employ this land for any other purpose ; some- times the purpose for which the city acquires the property is specified in the statute under which it is acquired. In this case a statute author- izing a change of use is necessary; but such a statute is unquestionably valid. Brooklyn Park Commissioners v. Armstrong, 45 N. Y., 234 (1871) ; Brooklyn v. Copeland, 106 N. Y. 496 (1887) ; Curran v. Louis- ville, 83 Kentucky, 628 (1886). If, however, only an easement for a given use has been obtained, there can be no change of use except by means of the condemnation or purchase of additional rights in the land. Ibid. Where, however, the city has acquired absolute ownership, without any such limitations, and takes land for a given purpose, it may divert it to other uses. See, generally, McQuillin, Munic. Corps, Vol. Ill, sees. 1140, 1141, 1155. Where land is acquired for a given purpose, and paid for in whole or in part by the assessment of benefits on neighboring property, it is the better opinion that the city may, nevertheless, divert this land to other uses. The levy and payment of the assessment does not constitute a contract; and cities, as they change and grow, must be allowed to change the use of their real estate accordingly. Nichols, Eminent Domain (2d ed.) sec. 116, citing cases pro and contra; see Seattle etc. Co. v. Seattle, 37 Wash. 274, (1905), also contra. In Germany the power of cities to expropriate realty is more limited than with us, but their power to acquire it with the consent of the private owner is greater. Cities in Austria cannot expropriate for any purpose; but must even obtain the land for the construction of streets by agree- ment with the land owners ; the method employed being to establish a plan' and refuse permission to the land owners to build on their land until that portion of it needed for the streets is ceded to the city. In Bavaria until recently the law was the same; but on May 9, 1918, a statute was passed authorizing communes of more than five thousand inhabitants to condemn land for highways and for the construction of houses for people of small means. German cities, as a rule, obtain land for streets by condemnation; but acquire only at private sale land for parks and sites for public buildings, which our cities may condemn; and land f-or housing and for the pur- pose of keeping the market price of building land within reasonable limits, for which purposes our cities cannot get it by any method. Prus- sia, however, in her housing statute of 1918 (see p. 466 of this work) now allows cities to condemn land for small paries and playgrounds, and, until December 31, 1926, for housing people of limited means and sani- tation of unsanitary blocks or districts. There is a growing belief that the housing of people of limited means in this country may be held by our courts to be a public purpose for which land may be condemned ; and Massachusetts has passed a consti- tutional amendment (art. 43) to authorize it. Land may in some cases be acquired with the consent of the owner when it cannot be acquired for the same purpose against his will; see p. 134- 58 THE LAW OF CITY PLANNING AND ZONING Condemnation of Land Already Devoted to Public Use. Land condemned for one public purpose may subse- quently be taken for another such purpose, which the legisla- ture has come to consider more important. 21 * Nichols, Eminent Domain (2d ed., Matthew Bender and Co., Albany, N. Y., 1917), sees. 351, 352, 361, ff. CHAPTER II EXCESS AND ZONE CONDEMNATION AND REPLOTTING IN EUROPE Excess condemnation, zone condemnation and replotting are related extensions of the power of eminent domain and of the police power. Only one of these extensions, excess con- demnation, has been employed in this country; but the others have proved so useful in Europe that it is well worth our while to examine them in the light of their history and con- sider to what extent they would be serviceable and legal here. Excess Condemnation. Excess condemnation is the somewhat unfortunate name in the United States for a develop- ment of the power of eminent domain exercised under various names in most European countries. There, as here, private land can be condemned only for a public use. 'It follows that land only in an amount sufficient for that use can be so taken. The advocates of excess condemnation, so called, claim that there are many cases in which land just outside the physical limits of the principal enterprise should be appropriated for purposes incidental to, and thus a part of it. To call this "excess" condemnation, is to admit that the claim is unfounded and the taking illegal. A better name would be "incidental" condemnation ; but it is probably too late to make the change. An illustration of excess condemnation is the laying out of a new street and the possible taking of land on each side of it, outside the proposed street lines. For what reasons would the city planner wish this extra land ; would a taking of it be so related to the construction of the street as to be for street use? If so, this land may be obtained by eminent domain. Excess condemnation is most often urged either for the cutting of a new business street, or the widening of an old one 59 60 THE LAW OF CITY PLANNING AND ZONING through a low class development in the center of the city; or for the laying out of a boulevard in the outskirts through un- improved land. In either case one or more of three effects may be expected: First, the adjacent land may be raised in value. In this event the building of the street and the taking of the extra land to sell again in order to help pay for the street may well be regarded as included in the one business enterprise. The in- creased value is produced not by the local land owner but by the city. If the city does not obtain the profits resulting from this and similar enterprises which it undertakes, the net cost of these enterprises will be increased. No private business could long neglect such incidental gains and escape bankruptcy. Cities which adopt such a policy must either lack needed facili- ties or be burdened with ever increasing debts. Secondly, the cutting of the new street may leave remnants of lots on each side of it not large enough for independent im- provement, which shut off the land immediately back of it from the street and preclude the possibility of its development. If proper building on the street is delayed until private initiative unites the remnant and the land back of it in common owner- ship, the delay will be a long one. The result will be that the city will lose much in taxes, and the new street, by reason of its ugly appearance for so many years, will be given perhaps a character that will permanently impair its usefulness and lower values on it. A third effect may be that the use of the adjacent land, even if not cut into remnants, may lessen the usefulness of the principal improvement. A boulevard with cheap houses bor- dering it is no longer the beautiful boulevard that the city spent its money to create ; a view which the boulevard was planned to exhibit to those using it may be spoiled by a solid row of tall buildings or by buildings at wrong points. If the adjacent land is taken wherever necessary and resold with covenants against such uses of it, the boulevard is improved for the pur- poses for which it was built. Street construction is not the only connection in which ex- EXCESS CONDEMNATION ETC. IN EUROPE 61 cess condemnation may be employed. On the contrary, it is expedient in carrying out most public improvements. A new municipal building of any pretension raises neighboring land values, and if the city does not appropriate the resulting profit, an asset of value is neglected. An inappropriate use of adja- cent land mars the effect of the building on which public money was spent. This is bad business as well as bad taste. For the same reasons condemnation of land adjacent to a new park or similar public undertaking may be in the public interest. For much the same reason, land bordering on a public or quasi pub- lic industrial enterprise should generally be publicly controlled. 1 Thus the location of appropriate industries on land bordering on a municipally owned railroad would raise the value of that land; and the related development of road and industries would increase the efficiency and profits of both, or, with governmen- tal control, would lower transportation rates and the prices of goods to the consumer. If the road were built and run by private capital, the city or state could obtain its profits by the sale or taxation of the franchise given for such a quasi public enterprise, or enforce lower rates and prices by control in the public interest. In the same way most if not all industrial im- provements, public in their nature, could be made to serve the public more efficiently or yield additional public revenue. In fact, it is difficult to conceive of a wisely planned and executed public or quasi public work in which the improvement and the land near it, whether that land is ultimately in public or private ownership, should not be used in harmony and, therefore, de- veloped under common control with that end in view. Zone Condemnation. Zone condemnation is the con- demnation of an entire zone or district. It is usually employed in the built up parts of cities where the tract in question con- sists partly of private land, partly of public areas, and is espe- cially useful in the elimination of slums. In such cases it is 1 In Prussia (Gesetz Sammlung, or Collection of Laws, for 1905, p. 179, No. 13, Sec. 16) under the "Law with regard to Construction of Canals, of April i, 1905," the State is given the right to condemn land on each side of certain state canals within a zone on each side not to exceed one kilometer in width. 62 THE LAW OF CITY PLANNING AND ZONING not one street with the land abutting on it as in excess condem- nation, but a network of streets with the included land that is taken. In zone condemnation the land in the district selected is taken with all its improvements, puBlic and private, the private owners are paid the value of their property at the time of its condemnation, the improvements, so far as necessary, destroyed. all the land thrown into a common mass, the land for public uses withdrawn, the tract replanned and re-subdivided, and the land destined for private uses resold. The destruction of buildings, streets and similar improvements is expensive but necessary. The bad conditions are usually due not alone to the state of the buildings, but to the fact that buildings as a whole occupy so large a percentage of the area as to leave insufficient space for light and air; that block and lot divisions are faulty ; and that streets and other public open spaces are badly planned and located, or insufficient for local needs. Complete replanning in such cases is essential. Replanning of this sort must be done under the power of eminent domain because the only practical way of financing it is by condemnation and resale. The heavy cost of such a pro- ceeding cannot be imposed upon the private owners. Often the increment is slow in accruing and, when it comes, is too small to pay all the costs; sometimes the land is better suited to new uses with lots of different sizes and shapes, and cannot profitably be so subdivided as to be returned to the former owners. It is only the state that can recoup, and it is only by recoupment that the state can recover what can be thus saved. Replotting. Replotting is the re-subdivision of building land. The size and shape of building lots and their relation to each other and to neighboring streets and other public fea- tures, greatly affect the character of buildings erected on these lots. It is for the public interest that the plotting should be such as to encourage the construction of healthful dwellings and con- venient stores and factories. Proper subdivision is also essen- tial to economical real estate development; and such develop- ment, tending to make building lots cheap and abundant, is a EXCESS CONDEMNATION ETC. IN EUROPE 63 public advantage. It is, therefore, proper that it should be done under public supervision. In publicly guided replotting, the land is thrown into a com- mon mass, replanned and re-subdivided, as in zone condemna- tion; but the authorities, instead of paying for and reselling the land destined for private uses, return it to the original owners in the proportions, so far as possible, in which it was contributed. The expenses of the improvement are charged to the land. Replotting, like zone condemnation, is re-subdivision; but while zone condemnation is a use of the power of eminent domain under which the land must be taken and paid for, thus tying up public funds for a considerable period and involving the public in complicated real estate transactions, compulsory replotting is accomplished by means of the police power, with- out either of these disadvantages. This difference of procedure is rendered possible by the difference in the task to be accomp lished. Where land is highly improved, the costs and losses of re-subdivision, involving the destruction of expensive improve- ments, met slowly and perhaps only partially by the accrual of increment in value from replanning, would be an intolerable burden upon the private owners; whereas if the land in ques- tion is only slightly improved, the cost is small and the incre- ment immediate. It is the absence of costly structures to be demolished which makes re-subdivision by replotting, under the police power, appropriate and fair. The object sought to be attained by the use of the power of eminent domain in excess and zone condemnation and of the police power in compulsory replotting, is the proper devel- opment of the territory involved. To the city planner this result, whether achieved with or without the consent of the owners of the land in question, is equally acceptable. The prac- tical planner recognizes the fact, however, that without compul- sion this can seldom be accomplished with the same promptness,, fullness and economy, since almost invariably a few of these owners do not realize that the enterprise is in the interest of all, or they see in it opportunity to seize an unfair advantage; and a resort to compulsion is, therefore, necessary to avoid 64 THE LAW OF CITY PLANNING AND ZONING undesirable compromises, intolerable delays or even entire failure. In law the differences between compulsory and voluntary action may be said to be in the point of view. To the city the question is whether the property will serve a public use, and it is immaterial whether it is obtained by compulsion or by con- sent. Accordingly, in England no "excess" or "zone" land can be taken by a municipality by agreement except under circum- stances justifying its condemnation. To the property owner, however, in all cases, a voluntary transfer is unobjectionable; and in this country it is settled on authority that excess acqui- sition with the owner's consent is legal even where excess con- demnation is not. There are many statutes authorizing cities to purchase excess land ; and it should be noted that they are not statutes of excess condemnation. 2 Under many statutes, both here and abroad, the public au- thorities, if they condemn a part of the lot of a given owner, are authorized and often compelled also to purchase the rest of it, if the owner desires to sell. This is a species of excess acquisi- tion just considered, and not excess condemnation; and it should also be noted that it is more in the nature of a rule of damages in favor of the land owner than a city planning power conferred on the public. It has been stated that compulsory replotting is a regulation of land under the police power, and excess and zone condemna- tion are a taking of land under the power of eminent domain. What then, precisely, is the difference between excess condem- nation on the one hand and zone condemnation on the other, and wherein do they both differ from condemnation usually so called? Excess condemnation and zone condemnation are both extensions of condemnation into fields in which it had not previously been employed. In excess condemnation, as already noted, the taking is conceived of as incident to another and main taking, while in zone condemnation the taking is conceived of as independent. This, however, does not constitute a funda- 1 I'Or a r ferine*.- to the decisions and statutes, see p. 134. EXCESS CONDEMNATION ETC. IN EUROPE 65 mental difference between them; for both are cases of taking for a public use. Indeed, but for a mischance of legal develop- ment due to lack of vision, condemnation would logically have covered both these extensions, and excess and zone condemna- tion as such would never have been known. Both are clumsy methods of broadening the law to meet city planning needs and conceptions. Origin of Excess Condemnation, French. Excess con- demnation and zone condemnation, related in their growth, have had a long history. To their development from condem- nation proper many countries have contributed. Condemnation may be defined as the regulated taking of property for public use. From time immemorial governments have seized private property, and more and more, as governments grew to be just and free, compensation followed. The regulation of such tak- ing, however, came only with the modern conception of gov- ernment as the rule of law. In France it first appeared during the revolution; and excess and, later, zone condemnation fol- lowed. Long before excess and zone condemnation, or even con- demnation itself properly so-called, manifested itself, France was obtaining many of the results of excess and zone condem- nation by somewhat different methods. For centuries France has endeavored to make its capital beautiful, and in so doing has seen the need of harmony in the development of public and neighboring private property. A method of obtaining this harmony, early adopted in Paris, was to sell this neighboring land subject to a covenant entered into by the purchaser, to erect buildings on it, within a given number of years, in accord- ance with plans furnished by the State. In this way Henry IV as early as 1605 created what is now known as the Place des Vosges. 3 Many of the beautiful squares and streets of Paris and other cities in France and other European countries were planned and constructed under similar contracts. 3 The contract is given on p. I of Recueil cFActes Administratifs et de Convention Relatifs aux Servitudes Speciales d 'Architecture, VUle de Paris, 1905. 66 THE LAW OF CITY PLANNING AND ZONING In 1789 France in her "Declaration of the Rights of Man" laid the foundation for a modern condemnation law by pro- viding that : "Art. 17. Property is an inviolable and sacred right; no one can be deprived of it unless a public necessity, legally established, requires it, and upon just previous compensation." This provision was confirmed by the constitution of 1791,* and subsequently embodied in the civil code 5 with the modifi- cation that public utility and not public necessity was required. For a time taking for public use continued to be arbitrary for lack of statutory regulation, but on March 8, i8io, a a statute was passed setting up the necessary procedure. This statute was almost entirely superseded by the Statute of July 7, i833, 7 which, in turn, was practically replaced by the Statute of May 3, 1 84 1. 8 The law of 1841 containing the substance of much of the earlier statutes, with modifications and additions made from time to time by later laws and decrees, is still in force, and is the general condemnation or expropriation law of France. Land, however, is acquired (and paid for) as an incident to the fixing of street and building lines for the rectification and wid- ening of highways, under the law of September 16, 1807, and similar statutes subsequently passed. 9 4 Preamble, Art. 3, 4. Art S45- 'Bulletin des his, IV* sir., Bull. 273, No. 5255. f Bulletin des lots, IX s ser., Bull 107, No. 241. Bulletin des lots, IX' ser.. Bull. 808, No. 9285. The law of September 16, 1807 (Bulletin des lois, IV sdr, Bull. 162, No. 2797) is known as the "Law for the Drainage of Swamps, t Onstruc- tion of Streets, etc." When existing streets are widened under this law. the land needed for the purpose must be paid for when acquired (see sec. 50) ; but between the time of laying out the wider street and the taking of the land for the widening, the owner of this strip is deprived of rights in it for which, everywhere in this country except in Pennsylvania (see p. 30), the authorities must pay. If there are buildings on it, the owner may use them, but can make no substantial repairs or renewals on them or replace them. If. therefore, the city, having laid out its wider street, is willing to wait until buildings on it are worthless, it may do so with safety, and can then take the strip of land needed for the purpose on payment of its value without buildings. The law is much the same in Germany. In France, prior to the planning statute of 1919 (see p. 529), the city acquired no rights whatever in land by the laying out of new streets. To establish a plan of such streets, or fix any lines of such streets, so that EXCESS CONDEMNATION ETC. IN EUROPE 67 It Was the statute of 1807, just mentioned, which intro- duced the principle of excess condemnation in France. That statute (sec. 53) gives the land owner the right, on payment, to take remnants left by the relocation of street lines which cut him off from the new street, and empowers the public authorities to expropriate his entire lot if he does not do so. The conditional right given by this statute to the authorities to take land outside the lines of the street, is a limited right of excess condemnation; and excess condemnation, thus made a part of the law of France, has remained so ever since; but for many years there was no extension of the principle. The law of 1807 (sec. 51) and subsequent laws, provide that the owner of a lot, a part of which is appropriated for public use, may require the authorities in certain cases to take and pay for his entire lot. Provisions more or less similar to this are in the laws, of later date, to be found in many other countries. 10 property owners must observe them, the city may now resort to the planning statute ; and must, now as before, take the land by resort to the condemnation law. In Germany, it will be remembered, the planning law is also, in most of the states, authority for condemnation of land or any interest in it which is needed under the plan. (See p. 452.) In this country, except in Pennsylvania, street widenings if not done at once when planned, can be insured only by establishing a building line under eminent domain; with relation to which see p. 177; or perhaps by creating a building line under a zoning plan ; with relation to which see p. 279. The French law of 1807 also provides for the collection of local bene- fits due to public works, or their deduction from the compensation to be paid for land taken for such works ; but the procedure for their col- lection proved to be so cumbrous that it is only within very recent times that any attempt has been made in France to obtain them. 10 French expropriation laws of July 7, 1833, and May 3, 1841. A translation of the law of 1841, as subsequently amended, will be found on p. 91 of this work. The provision referred to is art. 50. Similar provisions will be found in general expropriation laws of Prussia (June ii, 1874, in Gesets Sammlung or collection of laws for that year, p. 221, sec. 9) ; Wiirttemberg (Dec. 20, 1888), art. 11 as amended by the Ausfiihrungsgesetz zum biirgerlichen Gesetzbuch of July 28, 1899, art. 209; Belgium (in which the French expropriation law of March 8, 1810, with minor amendments is still in force) ; England (Land Clauses Consolidation Act, 8-9 Viet. ch. 18, 1845, sec. 92, and subsequent acts. See Cripps Law of Compensation (4th ed., 1900, Stevens & Sons, Lon- don), p. 32; Canada, Revised Statutes, 1906, vol. 3, ch. 143; Prussian "City Planning" Law of July 2, 1875, sec. 13; Italy (Law of Expro- priation for Purposes of Public Utility, of June 25, 1865, sec. 23, Raccolta Ufficiale, v. 12, 1865, No. 2359) ; United States, Dunn v. City Council of 68 THE LAW OF CITY PLAXXIXC, AND ZONING General Expropriation Law of France. To an under- standing of excess and zone condemnation in France, some knowledge of procedure in condemnation in that country and the differences between it and such procedure in this country, may prove helpful. Inn the United States, at common law, the condemnation statute is a complete grant of the power to take land for public use. In France and other Latin countries, under the civil law, the power given by the statute is inchoate, and cannot be exercised until the state, in each case, completes it by a declaration that the particular undertaking, falling within the general provisions of the law, is such as will prove useful to the public ; and officials of the state indicate the particular pieces of land which may be acquired for the purpose. Subsequently, in France as in this country, the courts pass title to the land and fix the indemnities, unless the parties can do so by agree- ment. The requisites to condemnation for public use in France are therefore : 1. A law granting that right generally. 2. A law, administrative decree or ordinance declaring that the specific improvement for which the land is desired is in the public interest, and directing that this improvement be carried out. 3. A designation by the prefect of the locality where the land is situated, stating the location of that improvement, unless the law or ordinance of public utility, already passed, suffi- ciently indicates, in a general way, its future location. Where an extensive enterprise, like a railroad, or a national highway, is contemplated, a further designation is usually necessary. 4. A subsequent decree of the prefect describing by metes and bounds the specific land required for the work. This desig- nation cannot be made until the proprietors of the lands in Charleston, 16 South Carolina Law Rep. sometimes cited as Har- per's Law Rep. (S. C.) 189 (1824): Roulat v. Municipality No. i. 5 :.ma Annual Kcimrt- Ma\or, etc. of Raltimore v. Clunct, .? Mil .; ; <"li. -4U: '\ Statutes Manit' ' 1>. I'M;. / Munic. lust., ch. i.vv -re. (><>i ; KtvJMil Statutes ( hit. i>>\4. Mimic. Inst., cli. i<)2, sec. 322, sub-st EXCESS CONDEMNATION ETC. IN EUROPE 69 question have received notice and been given an opportunity to be heard. 5. A judgment of a court, with a jury, passing title to the lands and fixing the indemnities. This process has been summarily characterized in a stand- ard French treatise as follows : ll "The procedure in expropriation may thus be divided into two periods : in the first, the government orders the work to be constructed, and determines its location; in the second, the courts give the state title to the lands necessary for its execution. The first period the one which may be called the administrative must itself be divided into two successive phases, which result, the one in the declaration of the public utility of the enterprise, the other in the designation of the lands to be expropriated. Each of these acts must be preceded by an inquest." "Each of these two inquests has its distinct object. Before the declaration of public utility is made, the expediency of the work in relation to the general interests of the community must be deter- mined ; and it is with relation to this point that individuals are notified to give their opinions, as citizens, and not as land owners. But once this decision has been reached, it remains only to discover the means of execution most suited to the reconciliation of the interest of pri- vate property with those of society; and this is the object of the second inquest." Of great importance is article 52 of the law of 1841, the substance of which first appeared in the law of July 7, 1833. This article provides that: "Improvements give rise to no claim for reimbursement if, by reason of the time at which they were made, or of any other circum- stance brought to the attention of -the jury, it believes that such improvements were made in order to obtain increased indemnity." This article makes the plan of an improvement for which ex- propriation is sought, binding on property affected by it; for if the land owner, with knowledge of the plan, disregards it, he does so at his peril. A similar clause is now found quite gen- erally in European and American expropriation laws, the American provision being narrower than those to be found in 11 Pandecies Francoises (Paris, 1899), Vol. 31, p. 21, " Public hearing. TO THE LAW OF CITY PLANNING AND ZONING European statutes. It is the inclusion of more or less similar provisions in European city planning laws which may be characterized as condemnation laws in which the plan of con- demnation is to be executed at intervals over a considerable period of years that make city planning laws in Europe effec- tive, as, in the absence of such provisions, our statutes cannot be. 18 Beginning of Excess Condemnation in the United States. It was in the United States that the practical use, to any considerable extent, of excess condemnation first oc- curred. In 1812 the State of New York passed a statute 14 al- lowing New York City to condemn remnants left in cases of street and park openings. The land thus acquired was in prac- tice sold promptly. The owner of adjoining land was given the first opportunity to purchase. Excess condemnation was regarded not as a revenue measure but as a method of securing a desirable development of abutting land. In 1834 the New York courts declared this statute unconstitutional 15 and the practice stopped. Extensive use of this procedure was made in New York City, but it did not spread to other states. It was not revived in the United States until 1904, when the re- nascence of city planning in this country had already occurred ; and this revival was probably due to the influence of foreign experience. Excess Condemnation in England. The first European country to make any considerable use of excess condemnation was England, where the practice began about 1845. England, like other countries, possesses and uses the power of eminent domain. As in other civilized countries, private property can be taken only for a public purpose on payment of just compen- sation, 18 but, unlike most such countries, she has nowhere for- "See pp. 28. 453. ff. "Laws N. Y. 1812. ch. 174. 'Mauer of Albany St., n Wendell (N. Y.) 140. *As to whether in some cases, as for instance thnt of the Irish land legislation, the compensation to the land owner was just, in the legal ense of the word, see Lecky, Democraf\ and Liberty (Longmans, Green and Company, 1899), Vol. i, pp. 67, 182, 209 and ff.; Montgomery, Land Tenure in Ireland, and similar books. EXCESS CONDEMNATION ETC. IN EUROPE 71 mally guaranteed the property owner this protection. His actual immunity from the unjust seizure of his property is due to the fact that under the law no one can interfere with any property right without authority from Parliament, and in prac- tice Parliament gives permission for such interference only for a public purpose, on condition that due compensation is paid. Until comparatively recent times all power to condemn private property for any particular purpose in England was granted by a special or private act of Parliament, stating spe- cifically what property could be taken for that purpose. Grad- ually various classes of general laws were passed giving this authority. At present local governments have the general right to take land for most of their needs. 17 Sometimes they can do this without, more often with, the consent of the local gov- ernment board, ratified, practically as a matter of course, by Parliament. All these laws limit the taking to the lands neces- sary for the specific enterprise. Rarely does the law give any general authority of excess condemnation; practically all such authority is by special law. If the power is desired for any particular improvement, the practice is to apply for a special law granting the right not only of ordinary but of excess condem- nation, and designating the land that may be taken, both within and without the lines of the main undertaking. 18 Until 1845 eacn act granting the power of condemnation for any given enterprise deemed and thus declared to be public, contained clauses stating in detail what property should be taken and what rules for determining the compensation should be followed. The clauses for fixing the compensation, as they multiplied, became precedents, and were called the "common clauses." In 1845 these clauses were codified in an act called the "Land Clauses Consolidation Act," 19 now referred to, 17 For the construction of new streets and the widening of old ones in the built-up parts of cities, the special authority of Parliament is almost always necessary. 18 The Development and Road Improvement Funds Act, 1909, (9 Ed- ward 7, ch. 47) gives the board the right, with some limitations, to take land on either side of a proposed road, within 220 yards of its centre; and there are similar laws in Canada; see p. 74. 19 8 and 9 Viet., Ch. 18, 72 Till. I.A\V OF CITY PLANNING AND ZOXING with its amendments and supplements, as the "Land Clauses Act." 20 This codification of 1845 was made to avoid the neces- sity of drawing up special clauses to incorporate in each con- demnation law. It is deemed a part of every such law except in so far as that law impliedly or specifically excludes it. In the Act of 1845 were inserted rules with regard to "superflu- ous lands," or lands not needed for the main improvement. Thus the Act of 1845, although it did not authorize excess con- demnation, nevertheless recognized and provided for it; and the granting of this power in England by special and private acts dates from about this time. Land in the neighborhood of a public improvement is thus condemned in England both to guide its development and to profit by its rise in value. The main purpose of this practice in England, however, is profit, so that a part at least of the cost of the enterprise may be recouped. As a method of guid- ing neighborhood development excess condemnation seems to have been fairly successful in England; as a means of recoup- ment its success is harder to determine. 21 In many cases the bookkeeping is misleading. For instance, the initial cost of the land is sometimes in part written off ; and in some cases inter- est is not charged on the cost of land not as yet sold. Never- theless, there has been a decided saving by the use of this method, in spite of the fact that English law and practice impose upon its exercise many conditions which interfere with its financial success. Some of these onerous conditions are the following : i. Under the Land Clauses Consolidation Act, superfluous land must be sold within ten years of the time named in the act of condemnation for the completion of the work, unless that act fixes a different time for its sale. This period is often too short to allow the increment to accrue. Moreover, the nearer the expiration of the time limit is, the greater the dis- advantage of the city in its negotiations with purchasers. "See Cripps Law of Compensation (4th ed.). p. i. 11 For a latr opinion mi the subject see the English Ministry of Re- construction: AV/'frf c/ ( nnimittcc c Acqttttition and I'aluatwn of Land for Public f'urposts, 1918. EXCESS CONDEMNATION ETC. IN EUROPE 73 Often, too, the time when a sale becomes imperative proves peculiarly unfavorable for disposing of real estate. This clause is frequently modified in later acts. 2. The English cities did not make it a practice to lease superfluous lands pending their sale. In this way carrying charges and interest accumulated without any income to meet them. This is sometimes concealed by the failure, already mentioned, to charge interest; but such bookkeeping methods do not prevent the actual loss they attempt to cover. 3. The Act of 1845 provides that if the scheme involves the demolition in any one parish of twenty houses or more inhabited by persons of the laboring class, there must be pro- vision made, if it is lacking, for their rehousing in the vicinity. This is often expensive, especially when the land condemned is better suited and more valuable for purposes other than hous- ing. This clause also is now frequently modified or excluded. 4. It was, until 1919, the custom to allow the land owner, on condemnation, 10 per cent over and above the market price; but in takings by public bodies is so no longer. 22 5. In some cases, as, for instance, that of the well-known Kingsway improvement in London, architectural conditions to enhance the dignity of the street have been imposed on pur- chasers of land. This, if carried far, tends to decrease net returns by deferring sales of land or lowering its price. Much as such restrictions may improve the city's appearance, they may be a source of serious financial loss if they go beyond a moderate minimum. 23 In Canada, Australia and India, the law of excess and zone condemnation is based upon English precedent. 24 23 Acquisition of Land (Assessment of Compensation) Act, 1919. 28 In England the hearings and inquiries incident to the passage of a private act or the granting and confirmation of an order for condemna- tion now required, give to the proceedings much the character of the French expropriation. For a good account of the English procedure see Ministry of Reconstruction; Report of Committee on Acquisition and Valuation of Land for Public Purposes, 1918. 24 Thus in these countries will be found provisions that land desirable for the use, convenience or enjoyment of any public works, may be con- demned. (New Zealand, Public Works Act, Consol. Stats. 1908, vol. IV, no. 160, sec. 29; Queensland, Public Works, Land Resumption Act of 1906, Statutes, 191 1, vol. Ill, p. 3608. British Columbia has passed 74 THE LAW OF CITY PLANNING AND ZONING Changes in Method of Assessing Compensation. Re- cent changes in methods and principles of assessing compensa- tion for land compulsorily taken in England, although much less thoroughgoing than advocated by a recent Royal Commis- sion which investigated the subject, 25 are certain to be of great importance in this connection. These changes are embodied in an act applicable to all land condemned by public authorities 26 and in an amendment to the Housing, Town Planning, etc., Act, lo/X). 27 The provision in the Town Planning amendment for the compensation of owners of slum areas taken, although it is similar to recent Dutch 28 and French 29 legislation in this respect, is to us startling in its novelty. Under this new Eng- lish law 30 the amount to be so paid "for the land," including any buildings thereon, shall be the value at the time the valuation is made of the land as a site cleared of build- ings" and available for development in accordance with the require- ments of the building byelaws for the time being in force in the dis- trict : * a "Land Gauses Consolidation Act," based on the English statute. See also Revised Statutes Brit. Columb., 1911, vol. 2, ch. 128, p. 1469). Sas- katchewan allows "adjoining" land to be taken (The Town Act, Stats. iyi6, ch. 19, sec. 208). See also Ontario, Revised Statutes, 1914 (Munic. Corps.) ch. 192, sec. 322, (2) amended, 1921, ch. 63. Very generally it is expressly provided that land not needed may be sold, or leased. In New Zealand (Public Works Act, Consol. Stats, vol. IV, p. 879, sec. 85) and Saskatchewan, the court may award easements and surplus land in lieu of cash. See also Halifax City Charter, 1914, sec. 683. 698; Mont- real Charter, Art. 421 as amended by Stats. P. Q. 1912 (3 Geo. V), ch. 54, sec. 20; Toronto Charter as amended by Stats. Ont. 191 1, ch. 119, No. 12; see also Revised Statutes, ch. 192, sec 322. "The Ministry of Reconstruction Report on Acquisition and Valua- tion of Land for Public Purposes, 1918, already referred to. "The "Acquisition of Land (Assessment of Compensation) Act," 1919, already referred to. Housing, Town Planning, etc. Act, 1919; see p. 499 of this work. "Holland, Housing Law of June 22, 1901; see p. 495 of this work. "Law of June 17, 1915, see p. 76 of this work. " Sec. 9 and first schedule. 11 1. e., the slum land ; where adjacent land, in a sanitary condition, is included to secure the efficiency of the scheme as a whole (as it may be, see this section in full, p. 518 of this work) it, and the buildings on it, are paid for in full. "I. e., no payment is made for the insanitary buildings, to be de- stroyed. "I.e., for buildings to be constructed in accordance with tin- structural regulations, and with the open spaces now required for the access of light and air. EXCESS CONDEMNATION ETC. IN EUROPE 75 "Provided that, if in the opinion of the Local Government Board it is necessary that provision should be made by the scheme for the re-housing of persons of the working classes on the land or part thereof when cleared, 34 or that the land or a part thereof when cleared should be laid out as an open space, the compensation . . . shall be reduced" by an amount equal to the necessary expenses of such rehousing and of laying out such open spaces. 35 It seems clear that this provision of the English statute is just to the land owner, and that the former statutes in England or elsewhere giving him a greater compensation are unjust to future tenants of such land and to the public. The land with the buildings on it are taken by the state because the buildings are unsanitary in themselves and occupy an undue proportion of the lot, thus leaving an amount of open space for the access of light and air insufficient for health; the state is therefore in duty bound to prevent the further use of the prop- erty in its present condition; as a prerequisite to such use it may therefore with justice to the owner, and must in justice to the community, require him to put the premises into sanitary condition, and in taking the property to make it sanitary, has the legal and moral right, as a method of making the owner pay for so doing, to deduct the cost from the compensation paid him for his realty. 36 Excess and Zone Condemnation in France Since 1850. The movement in France which resulted in an enlargement of the limited right of expropriating remnants first to be found in the law of 1807, already mentioned, and also in zone condem- 84 The "principal act" (Housing of Working Classes Act, 1890) re- quires such rehousing in certain cases, it being considered wrong to tear down the slum-dweller's home without providing him with another. K With regard to this section see, generally, p. 386 of Law and Prac- tice of Housing (Hodder and Stoughton, London, 1921) by Sir Kingsley Wood. 38 In this connection the following provision of the Acquisition of Land (Assessment of Compensation) Act, 1919 (9 and 10 Geo. 5, ch. 57) is of importance : 2. (4) "Where the value of the land is increased by reason of the use thereof or of any premises thereon in a manner which could be restrained by any court, or is contrary to law, or is detrimental to the health of the inmates of the premises or to the public health, the amount of that increase shall not be taken into account :" [in fixing the compensa- tion to be paid the owner, etc.] 76 THE LAW OF CITY PLANNING AND ZONING nation, originated in the desire of Napoleon III to improve Paris ; as a result of which he caused two statutes to be passed in aid, one of the sanitation, the other of the beautification, of the city. The statute of Napoleon III, for the sanitation of Paris and other cities in France, was passed April 13, i85O. 37 It provides that where the unhealth fulness of a dwelling for hire situated on a given lot is the result of permanent causes outside the building, or where the causes cannot be removed except by an improvement embracing both dwelling and outside con- ditions, the commune may, under the general condemnation law of the state, 38 expropriate the entire lot, selling remnants at public auction. 39 This statute, which did not materially enlarge the right of condemning remnants, relates only to lots abutting on a public highway with dwellings for hire on them, and proved to be of little use. It was, therefore, repealed and re- placed by the statute of February 15, 1902.* This law (sec. 18) reenacts, practically word for word, the law of 1850, except that it is made to apply to realty for hire or occupied by the proprietor, built up or not, whether abutting on the highway or otherwise. The statute of 1902 proved to be no more useful than its predecessor and has been invoked only in two cases of comparatively small importance, for the reason that the pro- visions of the general condemnation law and the traditions gov- erning the conduct of juries under it involve too heavy an expense. The law of June 17, 1915 41 was accordingly passed, which enlarges the scope, simplifies the procedure and lessens the cost of expropriation for sanitation. This statute is the first zone condemnation law of real importance in France. 42 The law gives communes the right to condemn entire insani- " Bulletin des his. X' serie, Bull. 252, No. 2068. "The law of May 3. 1841 ; sec p. 91, ff. ** As a rule, in such cases, the former owners are given, under Art. 60-61 of the Act of 1841. the preferential right to acquire such rem- nants. The sale in the present case, however, is free from this prefer- ential risht. * Bulletin des his. XII' ser.. Bull. 2348. No. 41496. * Bulletin dts his, nouv. sir. Bull. 156, No. 8736. "The statute is not called a statute of zone condemnation in France; the first law there to he so considered being that of November 16, 1918, mentioned below. EXCESS CONDEMNATION ETC. IN EUROPE 77 tary tracts or districts, in which lots in themselves sanitary may be included if necessary for the success of the undertaking as a whole. The price of the insanitary lots is fixed at their market value less the cost of making them sanitary ; or, if this cannot be done, at the value of the land cleared of buildings, plus the value of the materials in the buildings. The future use of lots not put to public use, and the conditions subject to which the) shall be sold, are also fixed. In no case shall the value placed upon a piece of realty expropriated be less than that of the land without buildings; in no case shall compensation be in- creased because dispossession is involuntary. If any tenant deprived of his property is carrying on an offensive industry under special license, and that industry is a cause of the existing bad sanitation, his damages shall be reduced by a sum equal to the profits obtained at the expense of the public health. The indemnity of the other tenants for eviction shall be a sum equal to three months' rent, but in no case less than f3O or more than fioo. For expropriation under this statute a simplified pro- cedure of its own is provided. The decree-law 43 of March 26, 1852 44 was promulgated by Napoleon III, as an independent provision, to escape from the narrow limits of the general power of excess condemnation under the law of 1841, 45 which the Emperor found such a hindrance in his plans for the beautification of Paris. The law, which applies not only to Paris but to such other French cities as have asked that it be extended to them, provides (art. 2) that in the enlargement, rectification or laying out of streets, the city shall have the right to take the whole of a lot, any part of which is within the new street lines, if the remnant is not of a size or form to permit of the erection on it of healthful structures, and also if necessary for the suppression of old highways. These remnants falling outside the new lines may be reunited with the neighboring properties by private con- tract or under the provisions of the law of 1807 already referred to. Originally under this statute the city was the 45 Decret. ** Bulletin des lots, X e ser, Bull. 514, No. 3914. "Bulletin des lots, IX e ser, Bull. 808, No. 9285. 78 THE LAW OF CITY PLANNING AND ZONING judge of the expediency and propriety of appropriating rem- nants; but a decree of December 27, i858, 48 provided that in case the person expropriated objected, a decree of public utility from the state authorities was needed as in other cases of ex- propriation; and on June 14, 1876 47 a second decree made the same requirement even if there was no such objection. As originally interpreted by the city authorities in their own favor, the law of 1852 gave them a fairly ample authority ; and under it large tracts of land were taken on the ground that they were remnants upon which healthful structures could not be built. In this way, also, the policy of taking land for resale at a profit was followed with some success. It was during this period that practically all the applications by cities other than Paris for the extension of the law to them were made. The decisions of the state authorities under the decrees of 1858 and 1876, however, greatly restricted these powers. The maximum size of the remnants that could be condemned as compared to those that were formerly taken became very small ; and resale at a profit, never a legal ground for expropriation, became prac- tically impossible. In consequence, a demand for a further revision of the statute of 1852 arose, and the amendment of July 13, 1911 48 and law of April 10, I9I2, 49 were passed. Under them, cities may condemn remnants not only when they are not of a size or form permitting the erection of a sanitary building, but when the building would not be in keeping with the importance of the highway or with its aesthetics; a rem- nant may, in any case, be taken compulsorily when it is not more than 150 square metres in size and whenever the public works occupy more than half the lot; and with the consent of the owner remnants of any size may be acquired. The statutes of 1911 and 1912, except for the greater lati- tude granted when the owner consented to the excess taking, were merely a meagre enlargement of the previous right all that France in law had ever possessed to condemn remnants on the ground that they were not suitable sites for buildings. "Bulletin des lots, XI' ser, Bull. 656. No. 6111. "Bulletin des lots, XII' ser, Bull. 305. No. ' "Being Article 118 of the so-called "Loi des Finances" (No. 2933). "Bulletin des lois, nouv. sir. Bull. 79, No. 3950. EXCESS CONDEMNATION ETC. IN EUROPE 79 A recent statute, passed November 6, 19 18, 50 transforms a power which was smaller in France than that of most European nations into one greater than that to be found in any other country. 61 The statute of 1918, unlike the previous statutes, is an amendment of the general condemnation law. It provides (amended art. 2) that not only land within the lines of pro- posed public works but all land recognized as necessary to assure to these works their full value, immediate or future, may be declared of public utility and expropriated ; especially land in a city outside street lines, interfering with a rational subdivi- sion into lots or not susceptible of use as the site of structures in accord with the general plan of the public works contem- plated; also (art. 2 bis} land which, by reason of its proximity to a proposed public work, should yield an increased value of more than 1 5 per cent. The owner of land to be taken for its increased value may retain it by paying a sum equal to that increase. A decree of the state authorities declaring its public utility is necessary in all cases of excess taking. 52 Excess and Zone Condemnation in Belgium. The law of Belgium on the subject of excess and zone condemnation was for many years distinctly in advance of that of France. The Belgian law of July i, i858, 53 allowed excess condemna- tion for sanitation in connection with street construction. On November 15, 1867, that law was amended so as to permit zone condemnation in aid of practically all plans for city con- struction and improvement. 54 The amended law provides that: "Art. I. When a plan for the improvement, as a whole or in part, of an old section of a city, or the construction of a new section, is "Bulletin des lots, nouv. ser, Bull. 237, No. 13222. 81 Important, but too special to interest us, are the reforms made by this law in the jury system as applied to condemnation proceedings in France. M In France condemnation under the law of 1918 is called zone con- demnation because a belt or zone of land may be taken on each side of a proposed improvement; and taking under the law of June 17, 1915, is not so referred to ; but to save confusion the definitions already given in this work have been adhered to in all cases. 63 Pasinomie des Lois, 1858, p. 217. 84 See the reports accompanying the law when proposed in "Pasinomie des Lois" for 1867, p. 287. 80 THE LAW OF CITY PLANNING AND ZONING proposed, the government, on petition of the Communal Council, may authorize the expropriation under the laws of March 8, 1810, and April 17, 1835, of all lands destined for highway or other public uses, including lands for structures which are a part of the general plan. . . ." There are provisions for the condemnation and sale of remnants. The project is subject to the approval of the king. 55 Zone Condemnation in Italy. At about this time, June 25, 1865 Italy passed its expropriation la\v, : ' tl which is also a zone condemnation and city planning act. This statute states perhaps more happily than any other the purpose of zone con- demnation, as follows : "Art. 22. There may be included in the condemnation not only the land that itself is necessary to the execution of the public work, but also the lands lying within a given zone, whose inclusion directly helps to accomplish the chief object of said work. The right to condemn the contiguous lands must be stated expressly in the decree which establishes the public use or be given by supplemental royal order." Influence of English Housing Reforms. In the adop- tion of her excess and zone condemnation laws Belgium was evidently influenced by the similar but more conservative and restricted legislation of France. England, however, contrib- uted in no small measure to this result. The English zone con- demnation law was not passed until later, but her endeavors to secure housing reform had begun long before. Modern indus- trialism started in England. The conditions of modern indus- trialism produce the large city, which in its unregulated growth seems inevitably to produce the slums. England, being the first nation brought face to face in its slums with modern hous- ing evils in an acute form, was the first conscientiously to inves- tigate and attempt a solution of the slum problem and of mod- ern housing problems generally. This movement profoundly influenced industrial Belgium, and all Europe. "In Germany minor remnants are eliminated and petty readjustments of boundaries obtained under the police power, the owner heitiR required to consent as a condition to the issuance of a building permit. See p. 488 of this work. "Sec pp. 465, ff of this work. EXCESS CONDEMNATION ETC. IN EUROPE 81 The first of the long series of modern English laws for the elimination of insanitary housing 57 were the Lord Shaftesbury acts, two in number, both passed in 1851. The earlier of these laws (14 and 15 Viet. ch. 28) deals with the occupancy of what we in America call lodging houses. The later one (14 and 15 Viet ch. 34) provides for the building by municipalities of houses for the working classes, and the purchase of land, if necessary, for that purpose. An investigation, begun in 1844, had shown unmistakably the intolerable overcrowding, the great lack of light and air, the wretched construction and repair of whole districts in the large cities. A sufficient supply of new houses, it was thought, would remedy these evils ; and the second Lord Shaftesbury act was passed for that purpose. Whatever benefit the new municipal houses the few that were built proved to be to those who succeeded in securing them to inhabit, they did not make unnecessary the use of the old slum houses, nor better their condition. An improvement was attempted in the Torrens Act of 1868 (31 and 32 Viet. ch. 130). That law required the owner to repair, or tear down and rebuild, houses declared by the authorities to be uninhabit- able. But the Torrens act was not a sufficient remedy and still the slum remained. The repairing or tearing down of a house here and there, even the permanent removal of some houses that most obstructed the light and air of the rest, was not enough to do away with the slum evil; for a cause of the persistence of the slum was the condition of the district as a whole with its narrow, crooked streets and small shallow lots. This could be remedied only by tearing down all the houses, throwing lots and streets into a common mass and replanning the district entirely. The first legislation to deal with slum areas in this way was the well-known Cross act (38 and 39 Viet. ch. 36) passed in 1875. Under it the municipality could take title to any such tract as an unhealthy area, destroy all existing buildings, relo- cate the streets, lay out proper house lots on them, and provide 87 Only a few of the principal acts are cited in this brief summary. 82 THE LAW OF CITY PLANNING AND ZONING for suitable houses there. The act is popularly called the "Unhealthy Areas Act" and is now included in Part I of the "Housing, Town Planning, etc., Act, 1909." 58 It is the first English zone condemnation law. It contains provisions which specifically authorize the condemnation of land, not perhaps it- self insanitary, which renders contiguous land unhealthful or prevents its proper sanitation. The English act is not the first to accomplish this result. Such land could undoubtedly be in- cluded in the condemned area under the Belgian act of 1867; indeed, that act was passed in part for that very purpose. 69 Nevertheless, the specific provisions of the English law have had their influence. Another widely copied clause in what is now Part I of the act of 1909, authorizes the destruction of an "obstructive build- ing" which is defined to be a building that "although not in itself unfit for human habitation, is so situate that by reason of its proximity to or contact with any other buildings it causes one of the following effects, that is to say : "(a) It stops or impedes ventilation, or otherwise makes or con- duces to make such other buildings to be in a condition unfit for human habitation or dangerous or injurious to health; or "(&) It prevents proper measures from being carried into effect for remedying any nuisance injurious to health or other evils com- plained of in respect of such other building.'" The elimination of insanitary areas in English cities is much too large a subject to be treated adequately here. There can be no question of the existence of the evil or of the fact that the remedies used have improved conditions in the section of the city where they were applied ; but to what extent were conditions bettered in the city as a whole? A vast amount of money has been spent, and it is generally believed that the result has not been in proportion to the amount expended. To what extent have the methods adopted been responsible for this fact ? In the first place, for many years insanitary housing condi- "The English Unhealthy Areas Act is given in full on p. 88 of this work. ' See p. 79 *Such a building may be pulled down under Part II of the act of 1800, as an "unhealthy dwelling house" (53 and 54 Viet ch. 70). EXCESS CONDEMNATION ETC. IN EUROPE 83 tions were removed at public cost with no adequate legal methods of preventing a recurrence of the evil. The result was much useless expense; for under these circumstances no per- manent cure could be expected. Slum removal without proper regulation of building and of lot subdivision is of little lasting value. Secondly, slum removal was tried without a proper consid- eration of the interests and resources of the city as a whole. The slum district chosen should have been studied and put to the use for which it was most valuable and best suited; the location for rehousing should have been selected where land was cheap and healthful and proper transportation to it, if nec- essary, provided. Thus the city, instead of being burdened with debt, might have been made more prosperous by additional facilities and population where they could be made useful. Instead, the law required the rehousing of the people dispos- sessed near their old homes, and the former slum area was predestined to be used again for housing. Certainly there is no presumption that a use for which the area has proved a failure is that to which it is best adapted, much less that it is the best area that can be selected for the purpose. Of course, such districts may always be made suitable for housing, just as they may be converted into botanical gardens or marine parks by a tour de force. Private capital will not undertake such an enterprise; therefore, municipalities in many cases have done so. Is it strange that they have spent a great deal of money, obtained a financial return disproportionate to the outlay, and, relatively to the size of the slum evil in Eng- land, done very little good? Slum elimination without city planning is expensive and ineffective. 61 Replotting in Switzerland and Germany. The plot- ting, and consequently the replotting, when necessary, of build- ing land under governmental supervision, is a logical extension of the public regulation of the planning of streets and buildings. To a considerable extent the form and area of a lot determine the form of the building which will be erected on it, and the 81 Statutes and ordinances of excess and zone condemnation, are to be found in Germany; for references see p. 87, Note 74. 84 THE LAW OF CITY PLANNING AND ZONING amount of light and air that those who live or work in it will receive. To a considerable extent the street system of a city is, or should be, laid out in order to obtain blocks that will sub- divide into lots of proper form and area. To some degree building regulation, by requiring vacant spaces on the lot in certain locations and proportions with relation to structures, also determines the size and shape of lots. The actual sub- division of the block into lots under public supervision is the next step, and, like the block division resulting from street planning and the area requirements of building regulation, its object is the improvement of housing and working conditions. To some extent European law regulates the plotting of building land. Thus in some of the German states lots may be declared unsuited to building 62 and the authorities may require the land owner, as a prerequisite to the issuance of a building permit, to buy or sell small remnants, necessary to round out his or his neighbors' lots. 68 The next step is the direct control of subdivision, which exists in a few places. Thus in Vienna fl4 a plat or plan of lot subdivision must be filed with the authorities and receive their approval before subdivision is allowed; in Zurich, Switzer- land, 65 the owners of land between main streets are required to submit a local plan showing minor streets and the plotting of all land in the locality; and if they do not do so, the authori- ties establish such a plan after the land owners have been given an opportunity to be heard with regard to it ; and in Sweden e6 the subdivision of building land into lots is an essential part of the city plan made by the authorities, required in advance of building development. 67 "Htiffner, Wiirttcmberg Building Ordinance (Tubingen, 1912), p. 84, note 4. end. "Dresden, Strassenbauordnung, sec. 29; Leipsig, Ortsbauordnung, 1897. sec. 34, Saxony, General Building Law of July I. 1900, as amended May 20, 1904, sec. 66, a translation of which will be found on p. 474 of this work; \Yurttemberg, Building Ordinance of July 28, 1910, sec. 26 'Building Ordinance of January 17, 1883, sec. 3, (L. G. Bl. No. 35). Building Law of April 23, 1893. ** Planning Law of August 31. 1907. "The schemes under the British planning acts, and the acts modeled on them, in Canada, Australia and India more and more include pro- EXCESS CONDEMNATION ETC. IN EUROPE 85 If it is for the public interest that building land should be properly subdivided, evidently the public should not only super- vise plotting, but require and aid replotting when plotting is found to be faulty. In a few jurisdictions this may be done by eminent domain ; 68 but when so accomplished the public au- thorities must take and pay for the land to be replotted, recover- ing the money by its resale. This involves a serious disturb- ance of private rights, and commits the public to a long and expensive real estate transaction. When, however, replotting is done under the police power, the owners retain title to an un- divided share of the common mass, and are reimbursed by a new lot equivalent to the lot contributed by them, thus avoiding the disadvantages incident to replotting by eminent domain. The prerequisites to the starting of the proceeding vary, a petition signed by a given percentage of the owners reckoned in proportion, sometimes to their number, sometimes to the area of their land, sometimes to its value, being required. Almost invariably, however, it is essential that the public authorities find the proceeding to be in the public interest ; the profitable and economical development of building land, tend- ing to produce cheaper and more abundant building lots, being in all cases regarded as sufficient public advantage. Replotting is especially useful in the outskirts of cities. This is peculiarly the case in Germany. In many Continental countries, Germany among them, agricultural land came in the course of centuries to be subdivided minutely or into long, very narrow strips. This made cultivation difficult and expensive; and for many years before replotting of building land was resorted to, agricultural land was replotted to overcome these difficulties. Often the object sought was not the mere reloca- tion of boundaries so much as the aggregation of small hold- ings into lots of reasonable size. 69 German cities in their visions for a greater or less amount of replotting. For references to these Acts see pp. 498, ff. 63 Thus in Hesse (arts. 16-18 of the law of July 15, 1895, with regard to the extension of the city of Mayence; and General Building Ordinance of April 30, 1891, Art. 13, 59, 69) the city may forbid all building on land faultily subdivided and has the right to expropriate, replan and sell it. 80 See, for instance the Saxon laws of June 14, 1834 and July 23, 1861. Similar laws were enacted in Prussia and other German states. This 86 THE LAW OF CITY PLANNING AND ZONING growth have now encroached upon surrounding agricultural land, which often has not been replotted for agricultural pur- poses. Where the replotting of building land under govern- mental supervision has not as yet been introduced, great expense is incurred by developers in aggregating small holdings -so as to obtain lots large enough to divide and sell as building lots. This expense is, of course, added to the selling price of the land ; and the avoidance of this waste has been one of the great advantages of replotting statutes, both to land owners and to the public. Replotting is sometimes useful in the more central parts of the cities. This is especially so when some disaster has de- stroyed the buildings and given an opportunity, not otherwise available, for much needed replanning, and the readjustment of private property lines without which replanning would be im- possible. In this way, the Hungarian city of Szegadin, partly destroyed by flood, was replanned by a state commission in 1879, and the Prussian city of Brotterode, ravaged by fire, was replanned by royal order issued October 30, 1895. It is sel- dom possible to undertake work of this sort without general legislation, 71 in the absence of which, opportunities that prob- ably will never return are wasted, and gains that might have been wrested from the catastrophe escape never to be recovered. Perhaps the first jurisdiction to make use of the police power for replotting building land and enact an adequate, com- prehensive law to accomplish it, was the Canton of Zurich, Switzerland. This it did as a part of its Building Law of April 23, 1893. Under this law replotting of the tract in question, if for the public interest, may be undertaken by the uniting of small holdings and replanning them has been very extensive. Emil Klar. in his pamphlet (printed for him by Gebriider Kna'tu-r. Frank- fort on the Main) states that in Prussia twenty and one-half million hektars, or three-fifths of the territory of the kingdom, the property of over two million owners, was thus replanned. See also a recent French law. cited on p. 514 of this work : and. Kent-rally, an article by Dr. Richard T. Ely in the American Economic Review, March, 1911, entitled "Rus- sian I-and Reform " *Gescts Sammlung or Collecti"n r,f Laws of Prussia for 1895, p. 551, approved by the law of April 26, 1896 ((it-sets Sammln 38. 39. 4<> []. the ""Stricken out by law of 1021. EXCESS CONDEMNATION ETC. IN EUROPE roi fourth paragraph of article 48, and articles 78, 79 and 80. Such pro- ceedings must be begun within a period of fifteen days, and shall be brought, notice given and decided as provided in article 20 ; this period shall begin on the day on which the verdict is rendered. 88 *Arts. 43-47. Procedural provisions. Chapter III. Rules to Be Followed in Fixing Compensation ART. 48. The jury is the judge of the genuineness of title deeds and of the effect of contracts which may vary the estimate of the amount of the compensation. ^Paragraphs 2 and j. Criminal procedure in cases where any document produced is thought to be fraudulent or forged. Damages for expropriation shall include only actual and certain damage caused by the eviction itself; it shall not include injury which is uncertain or contingent and not the direct consequence of the expro- priation. If in the progress of the trial any act of the expropriant is shown which he considers as the basis of a claim of this nature, the jury shall pass on this claim by a separate finding." ART. 49. In case the authorities contest the right to compensation of a party in possession expropriated, the jury, without suspending proceedings on account of the contest, which it shall leave to be deter- mined in another proceeding, shall fix the compensation as if due, and the magistrate director of the jury shall order the deposit of such compensation until the parties have come to an agreement or the litigation is terminated. ART. 50. Buildings a part of which it is necessary to acquire for public use shall be bought entire, if the owners so require by formal demand addressed to the magistrate director of the jury, within the periods named in articles 24 and 27. This shall also be done in the case of every tract of land which by reason of the taking, is reduced to a quarter of its former total area, provided the owner does not possess any land immediately con- tiguous and the tract thus reduced in size is less than ten ares. 88 ART. 51. If the execution of the work will produce an immediate and special increase in value to the remainder of the property, this increase shall be taken into consideration in fixing the amount of compensation. ART. 52. Structures, cultural additions, and improvements shall not give rise to any right to compensation when by reason of the * Summarized; see laws of 1918 and 1921. t Summarized. 88 The amendments were made by the laws of April 21, 1914, and July 21, 1921. "Paragraphs 2 and 3 were added by the law of November 6, 1918; paragraph 4 by the law of April 21, 1914. "An are is equal to 100 square metres. 102 THE LAW OF CITY PLANNING AND ZONING time when they were made, or any other circumstance coming to the knowledge of the jury it believes that they were made with a view to obtaining an increased compensation. TITLE V. OF THE PAYMENT OF COMPENSATION ART. 53. The damages awarded by the jury shall be paid into the hands of those entitled to receive them before possession is taken. If any person refuses to accept the amount awarded him, pos- session shall be taken after tender and deposit. *Paragraphs 3-5, method of payment. The person expropriated, designated in the verdict of the jury as owner and not inscribed in the communal roles, must, in order to obtain payment of the compensation awarded to hint, prove his title to the property. Every farmer, tenant usufructuary or other person having a claim against the expropriating authorities, or intervening under the con- ditions laid down in article 21, in order to obtain payment of the com- pensation awarded to him, is equally under the obligation to prove his right to it. The sums awarded as compensation for which no sufficient title, is established, shall be deposited by the authorities expropriating at the deposit and consignment office and remain there on deposit as pro- vided in article 49. f ART. 54. Method of paying incumbrancers. ART. 55. If within six months from and after the rendering of the judgment of expropriation the expropriating authorities do not proceed to the fixing of compensation the parties may demand that these authorities proceed to such fixation. When the compensation is fixed, if it is neither paid nor deposited within six months from and after the rendition of the verdict of the jury, those interested shall, after the expiration of that period, be vested with the full right to the same. TITLE VI. VARIOUS PROVISIONS fARTS. 56-59. Procedural provisions. ART. 60. If the lands acquired for works of public utility are not so employed or if realty acquired by virtue of articles 2 and 2 bis is not used in conformity to the law or decree declaring it of public utility, the former proprietors or their assigns shall be entitled to demand its retrocession. The price of land retroceded shall be fixed by agreement, or, in lack of agreement, by a jury in the manner above prescribed. The * Summarized ; see laws of 1918 and 1921. t Summarized. EXCESS CONDEMNATION ETC. IN EUROPE 103 amount fixed by the jury shall not in any case exceed the sum for which the lands were acquired. ART. 61. A notice, published in the manner provided in articles 6, shall make known the lands which the authorities are about to resell. Within three months of such publication the former owners who wish to reacquire the ownership of such lands shall give notice to that effect ; and within one month of the fixing of the price, by agreement or by the court, they shall execute the contract of repur- chase and pay the price; all on pain of forfeiture of the privilege accorded to them by the preceding article. ART. 62. The provisions of articles 60 and 61 are not applicable to lands acquired on the demand of the owner by virtue of article 50 and which remain undisposed of after the execution of the work. ART. 63. Concessionaires of public works shall exercise all the rights conferred upon the authorities and shall be subject to all the obligations imposed upon these authorities by the present law. ART. 64. Owners of tracts or parts of tracts of land surrendered or expropriated for public use shall continue to be considered such [for electoral purposes for one year from the time of parting with the property] for the purposes of taxation and similar purposes until the first day of January following the cession or judgment pronounc- ing expropriation?* TITLE VII. PROVISIONS FOR SPECIAL CASES Chapter I *ARTS. 65-74. Summary procedure in cases -of urgency. Chapter II fARTS. 75-76. Expropriation for military, temporary, etc., pur- poses. ART. 77. The administrative decree giving the right to take the properties in question, provided for in article n, may be preceded by a decree for the calling of the jury of expropriation, made by the prefect on motion of the authority expropriating, based upon the statement of such authority that it will not proceed with the expro- * Summarized. t Summarized ; see laws of 1918 and 1921. w The amendment is due to the fact that there is no longer a property qualification for voting in France ; and the desire to have a convenient rule on the subject. 894 This title is added by the law of 1921, title VIII, art. 77 of the old law becoming title IX, art. 84. 104 THE LAW OF CITY PLANNING AND ZONING priation until the total amount of the damages therefor has first been fixed. ART. 78. The decree for the calling of the jury shall be trans- mitted by the prefect to the president of the court which win hear the case. He shall move for the appointment by the court in cham- bers of the nuigistrate director of the jury. The jury shall be con- stituted and convoked in the manner provided in articles 29, jo and j/. // shall fix the damages to which the parties shall be entitled on final expropriation, as provided in articles $2 to 40, inclusive, in accord- ance with the provisions of title IV , chapter III, and shall render a verdict fixing, with regard to each of the parties to the proceeding, the damages which will be due him if the authority expropriating discontinues the expropriation proceeding; in which event damages shall not, with respect to any party, exceed one per centum (/%) of the full amount of the damages fixed in his case, nor more than five hundred francs (f 7500). ** b ART. 79. The decree for the calling of the jury shall be published, posted and served as prescribed in article 15 for a judgment of expropriation. Notice imposes upon each owner notified and upon the expropriating authority, the obligations provided for in articles 21 to 28, inclusive. ART. 80. The verdict of the jury shall be signed by the members of the jury who concur in it. The magistrate director shall tax the costs as provided in article 41. ART. 81. Within the month following the verdict of the jury, the prefect shall give the expropriating authority notice of the same, and notice that it is required to state within the time fixed whether it will continue the proceeding. If the said authority does not give its decision within three months from and after the date of the verdict of the jury, it shall be deemed to have discontinued the pro- ceeding. ART. 82. // the expropriating authority declares that it will pursue the expropriation, the prefect, by a decree giving his reasons, shall designate the properties which shall be taken, as provided in article II, and thereafter the expropriation shall proceed as provided in articles 13 to 20, inclusive, the president of the jury shall declare the verdict of the jury to be a true verdict, and put the expropriating authority in possession of the properties, subject to the obligation to comply with the provisions of articles 53 and 54. ART. 83. The above provisions shall apply, with the modifications hereinbelow stated, in all cases of expropriation by reason of increase in value. Within eight days from the date of the verdict of the jury, the owner shall elect between the indemnity for the increase in value and the damages for expropriation; in default of which election the ** So in original. EXCESS CONDEMNATION ETC. IN EUROPE 105 indemnity for the increase in value shall be deemed to have been chosen. If the owner elects to accept the damages for the expro- priation, the authority may, within eight days from and after the date of the notice of such election, give notice that it discontinues the expropriation, and such discontinuance shall not give the right to special damages provided for by article 78. In default of such discontinuance within the time fixed the prefect shall pass the decree giving the right to take the properties in question, and the proceeding shall continue as provided in article 82. TITLE IX. FINAL PROVISIONS ART. 84. The laws of March 8, 1810, and July 7, 1833, are repealed. NO. 3. GERMAN REPLOTTING LAWS The most widely known of the German replotting laws are those of Hamburg, Saxony, Baden, and especially Prussia. 90 The Prussian law is the most complete. It is called the "Lex Adickes," after its author, the famous chief Burgermeister or mayor of Frankfort-on- the-Main. It applied at first only to Frankfort; but was from time to time extended to other cities in Prussia and was finally in the Housing Law of 1918 (see p. 466) made applicable to any com- mune adopting it. It was originally passed in 1902; but section 13 of the law as it then read compelled the city to pay for a larger percentage of land taken for public use than the city con- sidered just, and the city, by refusing its cooperation, succeeded in preventing a resort to the statute to any considerable extent. In 1907, therefore, this section was amended in this respect, and the period of usefulness of the statute began. A translation of the "Lex Adickes," with references to the principal provisions in the other 80 The full references to these statutes are as follows : HAMBURG, sec. 9 of the Law of December 30, 1892, with regard to the Building Plan for the Suburbs on the Right Bank of the Elbe, as amended from time to time thereafter. BADEN, Street Statute of October 15, 1908 (G. u. V. O. Bl., p. 605, ff.) with relation to which see Fladt, Das badische Ortsstrassengesetz, 1909; SAXONY, General Building Law of July i, 1900 (G. V. Bl., p. 381), as amended May 20, 1004 (ib., p. 163, sec. 54 ff., a translation of which will be found on p. 474 of this work; and PRUSSIA, "Lex Adickes" (Law with regard to the Replotting of Building Land in Frankfort-on-the-Main) of July 28, 1002 (G. S., p. 273), amended July 8, 1907 (G. S., p. 259) ; extended first to a number of Prussian cities specifically, and later, by the Prussian Housing Law of 1918 (see p. 466), to all Prussian cities deciding to adopt it. The statute as extended to Cologne, July 28, 1911, was amended, in so far as that city was concerned, by the (Prussian State) law of March 28, 1919. See in this connection Emil Klar, Die erste Bauerschliessung na-ch dem Frankfurter Umlegungs- gesets, 1911. Im Selbstverlage ; 12 p. io6 THE LAW OF CITY PLANNING AND ZONING statutes referred to above, in which they differ from the "Lex Adickes," follows: THE "LEX ADICKES" Law with regard to the Replotting of Building Land in Frank fort- on-the-Main FIRST PART PREREQUISITES TO REPLOTTING; PRELIMINARY PROCEEDING SEC. I. In Frank fort-on-the-Main lots of land belonging to vari- ous owners in parts of the city that are for the most part not built up, for which the building plan is finally established, may, in the pub- lic interest, be replotted, for the purpose of obtaining building land and securing a suitable subdivision of building lots,* 1 in accordance with the following provisions. SEC. 2. The replotting shall include only a single part of the ter- ritory within the city limits" (replotting district). The limits of the replotting district shall be so fixed that the replotting can be suitably carried out, and shall not be greater than the purposes of the replot- ting require; in which connection especial attention shall be given to the topography and the streets in existence or established by the building plan (sec. i). Particular lots in the replotting district built up or used in special ways (such as market gardens, nursery gardens, park land and the like) may be wholly or partly excluded from the replotting.* 1 Lots which are designated for the permanent exercise of sovereign rights shall on the demand of the competent authority be excluded from the replotting. SEC. 3. The replotting may be authorized : * The other laws do not expressly limit the replotting to parts of the city "for the most part not built up" ; but they each declare their pur- pose to be the obtaining of building land; and all but the Hamburg law provide that wherever possible an improved building lot, if not excluded from the replotting, shall be reassigned to the original owner. It is evident, therefore, that the. statutes wefe intended for application to the parts of the city not built up. The Saxon law (sec. 55) expressly applies to "lots of land whose buildings by fire, water, or other elemental disaster, have been de- stroyed," but it is clear that such land has become "for the most part not built up." * The other laws do not limit replotting to "a single part" of the citv. "The Hamburg law, which is by far the shortest, does not expressly provide for the exclusion of lots devoted to special uses, etc. Under the Saxon law (sec. 56), "special lots of land may be ex- cluded from the replotting on the petition citlur of the owners of such lots or of the other land owners" in order to avoid expense. See Rum- pelt's edition of the law, Leipzig, 1911, -p. 181, note, citing an authority. EXCESS CONDEMNATION ETC. IN EUROPE 107 1. On the petition of the executive branch of the local Council,** pursuant to a joint resolution of the executive branch and the com- munal council; or 2. On the petition of the owners of more than half of the area of the lots to be replotted, as appears on the land and building reg- ister, provided the petitioners include more than half the owners. 9 " For the purpose of this calculation, when land is held by several in common, a fraction of the area of the common land equal to his pro- portion of ownership therein is to be credited to each such owner. Restrictions against transfer are not a bar to replotting. Under par. I, no. 2, the petition shall be filed with the executive branch. If in this case the replotting district is so delimited that the munici- pality, in accordance with sec. 13, must award compensation in money, the consent of the executive branch is necessary. Paragraph I, no. i, is not applicable when the greater part of the area proposed for replotting is cultivated by the owners themselves as market gardens. SEC. 4. If the executive branch has decided, in pursuance of the previous joint resolution of the executive branch and the council, to petition for the replotting (sec. 3, par. i, no. i) or if the petition of owners, provided for in sec. 3, par. i, no. 2, has been presented to it, then it shall notify the building police authority M of the proposed replotting. It shall also without delay, provided it has not yet been done, draw up a schedule in which the lots to be replotted, with the names of their owners and their register, and land record description, are separately entered and in which shall be stated also the per- centage of the land thrown into the common mass by the parties to the replotting, which is to be surrendered and devoted to public streets and squares (sec. 10, par. 2), and within what period the streets and squares established by the building plan in the replotting district shall be finished and ready for public traffic and for the building of struc- tures on the land abutting on them. To the schedule a map is to be annexed on which shall appear the location, size, permissible inten- sity of building and particular use of the lots to be replotted. The executive branch shall throw open the schedule and map to public "The legislative branch of the city government consists of a council and an upper board called "magistral," whose duties are for the greater part administrative. 95 Under the Hamburg law the proceeding can be begun by the city authorities or by a petition of the owners of more than half the area involved. Under the Saxon law (sec. 54) the petition may be brought either by the city authorities or by more than half the owners of the lots involved who together own more than half the area in question. Under the Baden law the proceeding must have the support both of the city authorities and of more than half of the land owners who also own more than half the area in value. "The building police are state officials. io8 THE LAW OF CITY PLANNING AND ZONING inspection, the time and place of which shall be made public in the manner usual in the locality, with notice that objections may be pre- sented to the executive branch within a fixed time not to be less than one month. A notice of the contents of their objections shall be served on the land owners. If the map includes lots of the kind specified in the last sentence of sec. 2, the authority concerned shall be specially notified. SEC. 5. The executive branch shall, so far as possible, dispose of the objections raised, by consent, and then without delay transmit the petition for replotting, together with the papers relating to the matter, to the supervisory (state) committee." The supervisory committee decides, after hearing the local police authorities, with regard to the existence of the conditions precedent to the replotting stated in sees, i to 4, and the validity of the objections not disposed of. With the consent of the petitioners it may decide that under sec. 3, par. i, no. 2, the costs of the proceedings shall be borne in whole or in part by them. The resolution shall be served on the executive branch, the owners, and the parties (sec. 57) who have joined in the proceeding; and the executive branch shall make it public, with a reference to the con- tents of sections 7, 27 and 50, in the manner usual in the locality. SEC. 6. The petition may be withdrawn (sec. 3) at any time prior to the rendering by the supervisory committee of its decision (sec. 5, par. i), but not thereafter. Under the circumstances provided for in sec. 3, par. i, no. 2, the demand of the owners of more than two-thirds of the land area to be taken into account, under the provision in question is sufficient for the withdrawal of the petition. The costs shall be paid by the withdrawing petitioners. Under sec. 3, par. i, no. 2, the costs are fixed by the executive branch with- out appeal and may be collected by the municipality by coercive administrative proceedings. SEC. 7. If, under sec. 3, par. i, no. i, an agreement" with regard to the replotting is made in binding legal form between the munici- pality and the owners, then, on petition of the executive branch and a majority of the owners, reckoned in accordance with the provisions of sec. 3, par. i, no. 2, the replotting proceeding (sec. 8) shall not be inaugurated. If the agreement embraces only a part of the replotting district, the replotting proceeding may be dispensed with as provided in par. i, provided that the object of the replotting can be substantially * Bczirksausschuss. Prussia is divided into provinces, the provinces into Bezirke, or large administrative units, and the Bezirke into smaller unit-;, called Kreise, translated "districts." "A translation of an agreement of this sort, made shortly before the war, will be found on p. 123 of this work. EXCESS CONDEMNATION ETC. IN EUROPE 109 attained although limited to the lots included in the agreement, and the owners of the remaining lots have agreed to such limitation or a later replotting of their lots is not thereby precluded. In this event the lots of the owners who have not joined in the agreement are excluded from the replotting. In order to facilitate the making of said agreements, pars, i and 2, the supervisory committee may fix a suitable period prior to the expiration of which the replotting proceeding shall not be inaugu- rated. It shall fix such a period on petition of the executive branch, or of at least such a majority of the owners, as in the judgment of the supervisory committee under the conditions of par. 2, would together with the executive branch be authorized to present such a petition. The decisions under pars, i to 3 shall be rendered by the super- visory committee in administrative proceedings. The decision under par. 3 shall be final. SECOND PART THE REPLOTTING PROCEEDING /. The Preliminary Resolution: The Replotting Commission SEC. 8. When the statutory prerequisites to the beginning of the replotting proceeding are finally established, then the president of the District " orders its beginning and names a commission to carry out the process. 1 The commission shall have as members two deputies of the dis- trict president, of whom one shall be made chairman and the other vice-chairman, as well as at least one member who shall be an expert in building matters, one an expert in law and qualified to be a judge, one a certified surveyor, and one an expert in the appraisal of land. Members of the executive branch cannot be members of the com- mission. Before the naming of the members of the commission the executive branch and the owners shall be given an opportunity to nominate and be heard with regard thereto. The members are entitled to repayment of actual disbursements and to fees as established in the existing provisions for experts in legal proceedings. The commission is l without prejudice to the provisions of sec. 36 par. 2, legally qualified to render its decisions when all the members are notified to be present for the purpose and the chairman or vice- 89 In this case the larger administrative district is meant. The president is chairman of the supervisory committee. 1 The "Lex Adickes" is the only law which provides for a special com- mission; in the other laws the work is done by the regular authorities. no "THE LAW OF CITY PLANNING AND ZONING chairman and at least half of the members are present; the decisions are by majority vote ; in cases of tie the vote of the chairman decides. The commission is in legal and other proceedings represented by its chairman. The records of the commission are public; their register and the plan of division shall be deemed to be judicial records. The beginning of the proceeding and the naming of the commis- sion shall be made public in the manner usual in the locality. 2. Entry of Pendency of Replotting SEC. 9. On the request of the commission the land record office shall enter in the land books of the lots to be replotted, the fact that the replotting proceedings have been begun (Entry of Pendency of Replotting). It shall be the duty of the commission to obtain authentic infor- mation with regard to the contents of the land books. When neces- sary it shall require the land record office to give it abstracts for this purpose. Even when certified abstracts are furnished, only actual disbursements shall be charged. The entries subsequent to the entry of the Pendency of the Replot- ting shall be communicated by the land record office to the com- mission. In so far as the land book has not yet been established, the above provisions are applicable to the other legal books. j. Principles of Replotting SEC. 10. The lots noted for replotting shall be united in a single mass. In the mass shall be thrown also the existing public roads and squares. From the common mass there shall at once be excluded in the division and assigned to the municipality or other party whose duty it is to maintain thoroughfares, the land necessary for public streets and squares. By such assignment the municipality and the other parties whose duty it is to maintain ways, shall be deemed to be com- pensated for the surrender of the public ways and squares. The rest of the mass shall be divided among the owners. SEC. II. Full compensation in accordance with the provisions of sees. 12 to 21 shall be made to the parties (sec". 57, pars. 2 to 5) con- cerned in the replotting. SEC. 12. The division of the rest of the mass mentioned in sec. 10, par. 3 shall be made in a suitable and equitable manner and, as far as possible, so that the total area shall be assigned to the owners in the proportion in which the former total mass was divided among EXCESS CONDEMNATION ETC. IN EUROPE in them. 1 In so doing the lots shall, as far as possible, be laid out at right angles to the streets and squares and in the same location in which they were before the replotting. Especial endeavor shall be made that built up lots and lots to which under sec. 14, a special value must be given, shall (except as they come within the lines of streets or squares, or must be otherwise bounded) be assigned to their former owners. If the land thrown into the mass is, in its different parts, dif- ferently encumbered, or if the lots of the same owner differently encumbered are thrown into the mass, then for each of these parts, or for each lot, or in each case for the greater part of lots which are encumbered in the same way, at least one new lot shall be assigned. SEC. 13. The owners shall be compensated in money for the land necessary for public ways and squares in excess of the area of such ways and squares thrown into the mass, [in so far as the land exceeds 30% of the land thrown in by the owners] in so far as, under sec. j, par. i, no. I, the land exceeds 35%, and under sec. 3, par. I, no. 2, it exceeds 40% of the land thrown in by the owners.* The compensation is to be reckoned as a fraction of the total value of the land destined for streets and squares. SEC. 14. In addition to the right to the assignment of land, the owners have also the right to compensation in money : 1. For buildings and other parts and appurtenances of the lot thrown in. 2. For the loss of value by reason of special qualities of it or investments made on it, in so far as an adequate compensation is not afforded by the lot assigned. 3. For the loss of income from the use of buildings or the spe- cial condition or use of the lot (factories, truck gardens, nurseries, clay and loam pits and the like). An increase in value resulting from the anticipation or beginning of replotting shall not be taken into consideration in this connection. SEC. 15. If the lot thrown in is subject to claims which, in accord- ance with sec. 42, par. i, and 2, are extinguished and for which in accordance with sec. 20 compensation must be accorded, then the commission may impose upon the owner the obligation to pay a sum of money not to exceed the amount by which the value to him of the lot thrown in was diminished by the encumbrance (contribution). The contribution shall be paid to the municipality. On demand, 2 Under the other laws the basis of reassignment is the ratio of value of the lot thrown in to the value of the replanned area, exclusive of streets, squares, etc. 8 By an amendment passed July 8, 1907 (G. S., p. 259), the words in brackets were omitted, and the words in italics inserted in their place. The ratio which is appropriated without payment varies in different laws. ii2 THE LAW OF CITY PLANNING AND ZONING however, the owner shall be allowed to postpone settlement, on pay- ment of 3J^% interest, until the sale of the lot or building on it. SEC. 16. In so far as the value of the allotments, on the basis of sees. 1 1 to 14, for any reason is less than the worth of the lot thrown in, the owners shall have a claim for a further compensation in money. A greater value which the lot thrown in obtains by reason of the proposed or inaugurated replotting shall in this connection be dis- regarded. The lot assigned shall be appraised at the value which it has attained, after the replotting, at the time at which it is transferred in accordance with the declaration of transfer (sees. 40 to 42). SEC. 17. Lots thrown into the mass whose areas are so small that by themselves they could be replaced only by lots that are unfitted for building purposes are, when they belong to the same owner, to be combined. If they belong to different owners, then, with the consent of their owners, they are to be united in common ownership, so that in their place lots capable of building development can be assigned; and the assignment is to be made with a fixing of the proportion of the ownership as held in common. The commission shall use their best efforts to bring about the necessary agreement. If the lots which are to be united (par. 2) are differently encum- bered, then the provisions of sec. 12, par. 2, shall apply. SEC. 18. If the agreement mentioned in sec. 17, par. 2 is not reached, the full compensation for the lot thrown in shall be paid entirely in money: 1. On the petition of the executive branch, when the area of the lot is so small that for it only a lot unsuited for building develop- ment can be assigned, and when in this case the purpose of the replot- ting would fail of accomplishment or would be materially impaired. 2. On petition of the owner when the area in consequence of the replotting would be so lessened that the lot assigned would no longer be fitted for building purposes. In the fixing of the compensation the provisions of sec. 16, par. 3, shall apply with the limitation that the amount of compensation shall be diminished by the amount of the contribution to the replot- ting that would otherwise be imposed upon the owner. Parts of the remaining mass (sec. 10, par. 3) which would be equivalent to a lot such as is described in the first paragraph (sec. 12) may be excluded from the division to all the owners and in whole or in part, with their consent, on compensation, be assigned to one or more owners. With their consent, on payment of compen- sation by them, the payment of this compensation shall be imposed upon the owners to whom the assignment is made (recompense). The provisions of sec. 16, par. 3 shall apply. EXCESS CONDEMNATION ETC. IN EUROPE 113 SEC. 19. The commission decides as to suitability for building development (sees. 17, 18) after hearing the building police authori- ties. SEC. 20. Parties whose rights in a lot are extinguished (sec. 42, par. 2 sentence 3 or in connection with par. i, sentence 3) or changed by order of the commission (sec. 25, pars, i, 2), as well as tenants and leaseholders whose rights, under sec. 42, par. 4, are extinguished, shall be specially compensated for the damage they suffer through the replotting, in so far as the indemnity is not included in the dam- ages accorded them under sees. 14, 16, 18 and 31. SEC. 21. In other respects the provisions of sees. 7 to n and 13 of the Law of Expropriation of Land, of June u, 1874 (G. S., p. 221), in so far as provision therefor is not made in this law, apply as to damages, except that the municipality shall be considered the person undertaking the enterprise. 4 SEC. 22. The building plan for the replotting district shall not be changed during the replotting proceeding without the consent of the commission. The commission may, however, as an aid to the carrying out of the replotting, petition the executive branch for a change in the building plan in the manner prescribed in the Statute with regard to the Laying Out and Change of Streets or Squares in Cities and Country Places, of July 2, 1875 (G. S., p. 561)." SEC. 23. The commission, after hearing the street building police authorities, shall decide within what time the streets and squares in the replotting district shall be made ready for public traffic and for building on abutting land. A merely temporary construction may, however, be allowed for these purposes, and recognized as sufficient. The delay allowed may be different in different parts of the replot- tirfg district. After the expiration of the period, the building permit cannot be refused on the ground that the construction has not yet been done.' Under sec. 3, par. I, no. i, the delay, without prejudice to any other agreement between the municipality and the owners interested, shall not exceed the period of four years. In so far as the planned streets and squares, up to the time of the replotting, are not constructed and the lots thereafter need temporary approaches or ways, existing public ways that are destined to be abolished or shifted may be temporarily maintained. In so far as this is not done, it shall be the duty of the municipality to construct temporary approaches and ways. * The law referred to is the general law of Prussia for the con- demnation of private property for public use ; and the provisions with regard to damages are very much like the laws on the subject in this and other countries. 5 A translation of this statute will be found on p. 466 of this work. 8 Under the Prussian law and that of a number of other states, the city can pass a local statute forbidding building on unfinished streets. The reason and effect of such a law are explained on p. 455 of this work. ii 4 THE LAW OF CITY PLANNING AND ZONING On petition of the municipality this duty shall not be so imposed, and the interested owners shall receive compensation in money when the construction would be too expensive under the circumstances. This provision shall not apply when without such construction the access to a built up lot or a lot used for trade purposes, which remains in the possession of the owner, would be prejudiced. SEC. 24. The expenditures necessary under sees. 13, 14, 16 to 23, shall be met by the municipality. SEC. 25. In order to attain the object of the replotting proceed- ing the commission may maintain existing easements or change them or impose new easements. Other real rights which, under sec. 42, par. 2, sentence 3, in con- nection with par. i, sentence 3 would be extinguished may, reserving any claim for indemnity (sec. 20), be transferred by the commission to the lot assigned, in so far as they can be exercised with relation to the lot without material loss to those interested in that right and do not conflict with the objects of the replotting. So far as necessary the commission shall also dispose otherwise of the public burdens existing on the lots as at present owned or the burdens to be imposed on its future ownership. SEC. 26. The commission shall, so far as possible, decide upon the provisions in the plan of division, particularly those with regard to the division of the land (sec. 12), in concert with those interested, and shall use special efforts to bring about agreements through which the payment of indemnities in money shall be lessened or avoided. It shall also take care that the procedure is directed against the right parties. SEC. 27. If an agreement, as provided for in sec. 7, par. I, is reached, then the commission is bound by its terms. If an agreement, as provided for in sec. 7, par. 2, is reached, then the district committee shall decide whether the object of the replot- ting can be substantially attained with its limitation to the lots affected by the agreement. If this is so and if the owners of the remaining lots agree to the limitation, or if a later replotting of their lots is not thereby prevented, then the district committee shall exclude from the replotting the lots not included in the agreement. With regard to the lots affected by the agreement the provisions of par. I, shall apply. Agreements made by the owners of the lots in one or more blocks with regard to the replotting of their lots shall be respected, in so far as the accomplishment of the replotting in other respects in accordance with the provisions of this law shall not be prejudiced. These provisions also hold good when the agreements are not put into a form binding in law. SEC. 2.S. If the municipality, under sec. 13, is liable for compensa- tion, or if an allotment falls to it under sec. 18, par. 3, and in these EXCESS CONDEMNATION ETC. IN EUROPE 115 cases its interest is in serious conflict with the common interests of the owners, then the district president shall appoint for the owners an attorney and administrator. The owners as a whole are to this extent to be regarded as legally capable of being made parties. The attorney and administrator shall be considered a statutory attorney. He can be chosen from among the owners. On demand he shall receive, in addition to repayment of actual expenses, a rea- sonable remuneration for his services ; the amount shall be fixed by the commission; payment shall be made by the municipality. The expenses, including those involved in legal proceedings (sec. 39), shall be advanced by the municipality to the attorney and adminis- trator on demand. The attorney and administrator shall receive a formal appointment to that position. SEC. 29. Expenditures that the municipality is obliged to make in payment for the value of property coming to it cannot be included in any apportionment among the owners. This applies especially to the compensation to be paid under sec. 13, to the payment for which the municipality is liable in case of an allotment to it (sec. 18, par. 3), and to the damages to be paid by the municipality where the pro- visions of sec. 9, par. i, of the Law with regard to the Expropriation of Land, of June n, 1874, are applicable (sec. 21).' The remaining expenditures for which the municipality, under sees. 24, 28, par. 2 and 36, par. i, sentence 2, is liable (distributable expenditures) shall be divided among the owners in so far as the executive branch petitions therefor (replotting quota). On the other side of the account and to be deducted from the total of the expendi- tures that can be distributed are : *i. The contributions and recompenses (sec. 15, sec. 18, par. 3) to be paid to the municipality, and the other payments to be made it under sec. 36, par. i, sentence 2. 2. The compensation to be paid by the municipality under sec. 13, as well as the recompense which it must make in case of an allot- ment to it (sec. 18, par. 3). SEC. 30. The distribution of the distributable expenditures of the municipality (sec. 29, par. 2) is made in proportion to the gain accruing to each owner from the replotting or in so far as the application of this standard of distribution does not appear to be possible or appropriate in proportion to the frontage, the area and location or the value of the lot assigned. On petition of the owners, the payment of the replotting contribu- T The paragraph of the expropriation law referred to reads as fol- lows : "When only a part of a lot is taken, the owner has the right to demand that the expropriator shall take and pay for the whole of it if the lot is so divided, that the remnant can no longer be suitably em- ployed for its former use." ii6 THE LAW OF CITY PLANNING AND ZONING tion shall be postponed until the sale or the building up of the lot, on payment of interest at the rate of 3 l /2%. In so far as by reason of the distribution of the replotting con- tributions the value of the assignment under sec. n to 14, less the replotting contribution, would be smaller than the value of the lot thrown in, the owner shall not be taken into account in that distribu- tion; and the rule shall be the same with regard to the owners to be compensated under sec. 16. SEC. 31. In so far as the total amount of the payments men- tioned in sec. 29, par. 2, nos. i, 2 is in excess of the total amount of the replotting contributions that can be distributed, the owners shall receive recompense from the municipality therefor. The recompense shall be made in accordance with the provisions of sec. 30, par. i. SEC. 32. The petitions mentioned in sec. 15, sec. 18, par. I, sec. 23, par. 3, sec. 29, par. 2, must be made at latest as objections to the plan of distribution (sec. 37). SEC. 33. The parties concerned shall enforce their claims, as soon as they can be ascertained, if possible before the commission or the supervisory committee. If this is not done, then the commission or the supervisory committee may impose upon those concerned the cost arising from their belated enforcement. 4. Making and Establishing the Plan of Distribution SEC. 34. In conformity with the provisions of sees. 10 to 31, 33, the commission shall make a plan of distribution with map annexed. This plan and map shall show the old ownership and the new distribution. In this connection it shall show the individual lots with their size and their owners, the public ways to be discontinued and those to be changed in location, the approaches and ways to be con- structed under sec. 23, the arrangements to be made under sec. 25, pars. I, 2, and the compensation to be provided for under sees. II to 14, 16 to 24, as well as the payments to be required in accordance with sees. 15, 18, par. 3, sees. 29, 30, 33. It must also appear in what way under sec. 12, par. 2, sec. 17, par. 3, these requirements are met. SEC. 35. The commission shall hold a hearing witli regard to the plan of division and the map (sec. 34) for the benefit of those concerned. To it the municipality, the owners, and those who have given notice of adhesion to the proceedings, shall be summoned by personal service; the notice to be present and make their claims shall be given to the others interested in the manner customary in the locality. The notices shall contain an abstract of the provisions ^2, 33, and give notice that if they fail to appear, the decision on the plan of division, the fixing of any money payments, contributions, recom- penses and distributable expenditures, the payment or deposit of the EXCESS CONDEMNATION ETC. IN EUROPE 117 fixed money recompenses and the necessary arrangements under sec. 25, will occur in their absence. At the hearing everyone interested may appear and urge his interests. If necessary the hearing shall be adjourned to another time or place. The local police authorities shall be given an opportunity in the proceeding to urge the interests of the local police. It shall be given special notice of the hearing and may send a representative to it. The provisions in the plan of division, so far as they are of local police interest, shall be determined, so far as possible, in agreement with the local police authority. SEC. 36. The commission shall decide with regard to the plan of division with map annexed, especially with regard to the petitions of those interested for changes or additions, and when necessary shall correct and complete the plan of division and map in accordance with these decisions. At the same time the results of agreements which the parties have reached with regard to the founding, release, maintenance or change of real rights shall be made a part of the plan, in so far as they are not in conflict with the purpose of the replotting proceeding. In the decision, in addition to the chairman, at least one of the expert members provided for in sec. 8, par. 2, must take part. SEC. 37. After the decision has been rendered, the commission shall place the plan of division with map annexed on public exhibition and, at a time appointed therefor, shall show the owners the lots assigned them on the spot. The provision of sec. 4, sentence 5 shall apply in this connection, with the modification that, in the notice of the opportunity to inspect, the chairman of the commission shall be designated to receive objections to the plan of division. In addition, a copy of the plan of division with map annexed shall be sent the municipality and the owners, and notice of the opportunity to inspect shall be given to the other parties with regard to whom a decision has been made in the plan of division, or who have joined in the proceeding. The time within which objections may be raised begins to run against the parties mentioned in the foregoing paragraph upon serv- ice, against the others upon the public exhibition of the plan of division. If the discontinuance of public ways is under consideration, then the road police authority shall be notified. Objections to the discon- tinuance shall be disposed of as a part of the replotting proceeding. SEC. 38. If objections are raised to the plan of division, then the commission shall endeavour to dispose of them by negotiation. If they are not successful in disposing of them, then the papers and negotiations, with a report in detail, shall be laid before the district committee. It shall give a final decision with regard to the objections, n8 THE LAW OF CITY PLANNING AND ZONING If objections are not raised, or when they have been decided, then the establishment of the plan of division shall take place through final decision of the district committee. To the executive branch the owners and the attorney and adminis- trator (sec. 28), a copy of the established plan of division, with map annexed, shall be sent, to the other parties with regard to whom a decision has been rendered therein or who have taken part in the proceeding, a notice of the establishment of the plan of division shall be given. The executive branch shall make public the establishment which has occurred, in the manner usual in the locality. 5. Legal Remedies SEC. 39. In so far as the demands for compensation in money under sees, n, 13, 14, 16-23 are concerned, the parties in interest may bring legal proceedings in opposition to the plan of division from and after the time of its establishment. The complaint may be in- stituted at any time within two months after the day of replotting (sec. 40, par. i). As against parties to whom a notice of transfer shall be given (sec. 40, pars, i, 4) this period ends in any case not earlier than two months after service of notice. If under sec. 13 an attorney and administrator is appointed (sec. 28), his complaint shall be brought against the municipality, and that of the municipality against him; in the other cases it is to be brought by the owners and the parties named in sec. 57, par. 2, nos. i, 2, Against the municipality and by it against said parties. Under sec. 15 the above provisions apply, except that action can be brought only by the owners whose land is burdened. 6. Carrying out the Plan of Division. SEC. 40. The carrying out of the plan of division shall not be stayed by legal proceedings. It is effected by a declaration of trans- fer to be issued by the district committee by final decree. In it the day on which the legal changes with regard to lots to be replotted shall take place, shall be stated (the day of the replotting). The day of the replotting is to be so fixed that between the day of notice of the declaration of transfer and the day of the replotting, an interval of at least one month shall occur. The declaration of transfer shall not be made until it appears that the compensation fixed in the plan of distribution under sees. 14, 16-23, 31. ha* been paid or deposited. This declaration may be made at the same time as the establishment of the plan of division (sec. 38, pars. 2, 3) and made a part of it. EXCESS CONDEMNATION ETC. IN EUROPE 119 In addition to the executive branch, the owners and the attorney and administrator (sec. 28), the other parties with relation to whom a decree has been passed in the plan of distribution or who have taken part in the proceeding shall receive notice of the declaration of transfer. The executive branch shall without delay make the declaration of transfer known in the manner usual in the locality. SEC. 41. Upon the making public of the declaration of transfer the municipality obtains the right to lay out any temporary ap- proaches and ways (sec. 23, par. 2) to be constructed in accordance with the plan of division. SEC. 42. When the declaration of transfer is made public in the usual manner, then, on the day of the replotting, the provisions of the plan of division become effective. The former rights of owner- ship in the lots thrown into the mass are extinguished. At the same time the lots thus thrown in are freed from all private land encum- brances and limitations; especially trusts, entails, feudal obligations and liens for money lent. The municipality or other authority obliged to maintain ways becomes owner of the land assigned to public streets and squares under sec. 10, par. 2. In so far as land is assigned for land thrown in under sec. 12, the lot assigned, so far as ownership and other pri- vate right relationships mentioned in par. i, sentence 3 are concerned, takes the place of the lot thrown in. From such transfers to the lot assigned are excluded, however, in so far as not otherwise provided in the plan of division, building leases, 8 servitudes, the right of re- purchase and of preferential purchase and the real encumbrances not consisting solely of the obligation to pay money or render the fruits of the soil or personal services. The money compensation fixed in accordance with the provisions oLsecs. 14, 16, 18, pars, i, 2, sees. 23, 31, 39 takes the place of the lot thrown in, in so far as the legal relations mentioned in the pre- vious paragraphs are concerned. The same is true when under sees. 14, 1 6, 18, pars. I, 2, sees. 23, 31, the fixation occurs by reason of an agreement. The relationship of landlord and tenant and leasehold relation- ship, by reason of which the tenant or lessee holds the lot thrown in, are extinguished, except in so far as the holding remains undiminished and the plan of division does not otherwise provide. SEC. 43. On request of the commission the land book office shall enter in the land book the legal changes that take place, in accordance with the provisions of the plan of division and of this law, with relation to the rights entered in the land book or secured by entry, and shall cancel the entry of pendency of replotting; and shall also enter in the land book that the lot, in accordance with the provisions 8 Erbbaurecht. 120 THE LAW OF CITY PLANNING AND ZONING of sec. 15, par. 2, or sec. 18, par. 3, is liable for a contribution or recompense, and, in accordance with the provisions of sees. 29, 45, is liable for a quota. With the request are to be submitted the before mentioned abstracts from the land registry book. The request is to be made without delay and shall indicate ac- curately the entry to be made. In so far as the land book is not to be considered as yet estab- lished for lots of land, the previous provisions shall be applicable with respect to the other legal books. SEC. 44. The provisions of sees. 37, 38, 47-49 of the Law with relation to Condemnation of Land, of June n, 1874, and arts. 35-41 of the Law carrying out the Imperial Law with regard to Compulsory Sales at Auction and Compulsory Administration, of September 23. 1899 (G. S., p. 291), applies with regard to the deposit and care of indemnities in money in case lots are subject to trusts or entails or leases or are burdened with real obligations, mortgages, ground debts or claims for rent. 7. Supplemental Plan of Division SEC. 45. If the expenses of the municipality (sec. 29, par. 2) are increased by reason of the result of the rise of legal contro- versies, then the commission, on the petition of the municipality, shall by supplemental action impose upon the owners each his proportionate share of such additional amount. The petition shall be made within one month of the final judgment of the last pending legal controversy. If the expenses are lessened for the reason stated in par. i, sen- tence i, then the saving is to be credited to the owners on their con- tributions, or to be repaid them. If an agreement in this matter is not reached, then the executive branch shall petition the commission to prepare a supplemental plan of division. The petition may also be made by an owner. The expenditures arising under sec. 23, par. 2, in so far as they are not already divided under sees. 29, 30, 34, ff., may be taken into account in the supplemental plan of division. The provisions of sees. 16, 29, 30, 34-38, shall apply to the supple- mental plan of division. SEC. 46. In so far as the assignments under sees. 11 ff., less the replotting contributions (sec. 45), would no longer equal the value of the lot thrown in, according to sec. 16, pars. I, 2, the owner may bring legal proceedings against the municipality for the cancellation of the replotting contribution or the repayment of the amount paid. The complaint may be brought within three months of the day on which the replotting contribution is finally fixed. The replotting contributions which cannot be recovered under par. i, can be dis- EXCESS CONDEMNATION ETC. IN EUROPE 121 tributed by a supplemental plan of subdivision. The provisions of sec. 45, pars, i, 5 apply. 8. Service SEC. 47. The provisions of the General Administrative Law of July 30, 1883, with regard to the service of notices by the super- visory committee (G. S., p. 195 ff.) and the regulations rendered for the carrying out of the above laws, shall apply to service by the commission. p. Particular Provisions SEC. 48. The payments to be made to the municipality under the plan of division may be collected by it by coercive administrative proceedings. The contributions (sec. 15), recompenses (sec. 18, par. 3) and replotting contributions (sees. 29, 30, 45, sec. 46, par. 2) shall be deemed to be ordinary encumbrances. SEC. 49. If the obligations to make contributions, recompenses and obligatory contributions are extinguished, then the executive branch shall apply to the land book office or the lower court for can- cellation of the record of the pendency of the same. THIRD PART FINAL PROVISIONS SEC. 50. If the agreements provided for in sec. 27 are entered into in a legally valid form and if the supervisory committee is of opinion in the case mentioned in sec. 27, par. 2 that the conditions mentioned in the second sentence of said paragraph 2 have been ful- filled, then the committee shall by decree end the proceedings, in so far as the executive branch and a majority of the owners reckoned in accordance with the provisions of sec. 3, par. i, no. 2 petition for such ending. SEC. 51. The supervisory committee may also stop the proceed- ings by decree on petition of the executive branch when on account of the position of affairs, especially in the light of claims for com- pensation advanced or of the danger of the raising of such claims, there is the fear that the carrying out of the replotting proceeding will be uneconomic or involve an unreasonable burden for the mu- nicipality, or when the carrying out of the proceeding for other rea- sons than those provided for in sec. 50 appears to be needless. Be- fore such a decision is made an opportunity shall be given to the other parties in so far as they have taken part in the proceeding, to be heard with regard to the petition. Such a petition must be brought before the issuance of the decree of establishment (sec. 38, par. 2). 122 THE LAW OF CITY PLANNING AND ZONING In the case provided for in sec. 3, par. I, no. I, the municipality shall repay the owners the necessary disbursements they have incurred. SEC. 52. If the proceeding is discontinued under sees. 50, 51, then on request of the commission the land book office or the lower court shall cancel the notice of pendency of the replotting. SEC. 53. After the building police authority has been notified of the intended replotting (sec. 4), the permit for the erection of buildings on lots for the replotting of which a petition has been filed shall not be issued without previously hearing the executive branch with relation thereto. The building police authority may refuse the permit, or issue it conditionally if by the erection of the building the replotting would be made more difficult. No compensation will be allowed for such limitation of the free- dom to build. SEC. 54. The costs of the proceeding, without prejudice to the provisions of sees. 5, 6, 33, shall be borne by the municipality. With regard to the costs, dues, and stamps, in so far as in this law it is not otherwise provided, the provisions of sec. 43 of the Law with regard to the Condemnation of Ownership in Land, of June II, 1874, shall also apply. SEC. 55. In so far as expenditures of the municipality which cannot be distributed (sec. 29, par. i) or which although distributable (sec. 29, par. 2, sec. 45, sec. 46, par. 2) cannot be distributed on ac- count of the lack of a legal prerequisite, or the costs of the procedure (sec. 54, par. i) which fall to the municipality, are concerned, they cannot be shifted or specially imposed in whole or in part on the owners of the replotting district, whether by imposing liabilities or requiring contributions. SEC. 56. The periods named in this law for the performance of the acts named, are the full periods allowed therefor. SEC. 57. Parties within the meaning of sees. 4-6, are, in addi- tion to the municipality, the owners, the mortgagees, and ground rent creditors and those parties who are entitled to usufruct or an inheritable building right in the lot to be replotted. As parties within the meaning of sees. II, ff., are reckoned in addition to the municipality, the owners and the attorney and adminis- trator (sec. 28) the following: 1. Those in whose favor a right has been entered in the land book or any other legal book, or a right is secured by such entry. 2. Those who have any other right in a lot to be replotted, or in a claim which is a lien on the lot, the tenant or lessee who has IH m given possession of the lot by reason of the lease, and, in case of compulsory sale at auction or receivership, the creditor bringing action. The rights of the person having the right of possession are the same under this statute as the rights of the owner. EXCESS CONDEMNATION ETC. IN EUROPE 123 Parties whose right is not entered in the land book or any other legal book must, on the demand of the municipality, an owner, the commission or other authority before whom the proceeding is pend- ing, establish their right; prior to such establishment such parties may be excluded from participation in the proceeding. If a lawsuit is pending with regard to a right upon which a claim to participation in the proceeding could be based, then both parties to the suit shall be deemed parties to the proceeding. SEC. 58. This statute goes into effect January i, 1903. The Minister of Public Works and of the Interior shall see to the enforcement of the law. Dated July 28, 1902. REPLOTTING AGREEMENT UNDER LEX ADICKES Replotting and Division agreement by and between the munici- pality of Frankfort-on-the-Main, represented by the City Treasury, party of the first part, and [here follow the names of the land owners] parties of the second part, subject to the ratification of the Superior City authorities, as well as (by way of supervision), of that of the supervisory committee at Wiesbaden, as follows : SEC. i. The above mentioned parties hereby unite into a single common tract their lots of land between the Nordring, the Eschers- heimer Landstrasse, the Klettenbergstrasse, the Cronstetten Strasse and the Eckenheimer Landstrasse, described in a certain proposed plan of replotting, drawn up by the survey office of the Department of Streets and Sewers and dated December 18, 1908, and numbered and hereby grant each to the other the right of ownership to an undivided share in the common tract created proportionate to the area of the lot thrown in ... The contracting parties hereby apply to the Royal Registry Office or the Survey Office of the Department of Streets and Sewers for the registration of the new common tract, and the calculation of the size of the undivided shares therein. The contracting parties hereby agree that the value of the in- dividual undivided snares in the new common tract equals the value of the individual lots in question thrown in. SEC. 2. All the parties to this contract, as joint owners of the tract of land held in common created under sec. i, hereby so partition said common property that to each shall be assigned in severalty the portion of the newly created lots described in said proposed plan of replotting as follows: [Here follows a description of the several lots.] SEC. 3. The parties to this contract agree that the value of the lot of land or portion assigned to each of them under sec. 2 is equal to the value of his undivided share in the combined tract of land I2 4 THE LAW OF CITY PLANNING AND ZONING thrown in for replotting; so that, except under the provisions of sec. 6, no payment shall be made by any party. All the parties declare themselves satisfied with the proposed plan of replotting, and map annexed, the division and assignment of lots of land in return for the lots thrown in, as well as the percentage of land necessary to be surrendered for the proposed streets within the replotting district, and bind themselves accordingly at any time at once to make or receive the necessary cessions, to effect the neces- sary conveyances, cancellations, releases, new hypothecations, etc., at once to place at the disposal of the municipality of Frankfort-on-the- Main, cleared for the laying out and construction of streets, as well as, in accordance with the statute of July 2, 1875, or local statute,* to surrender, without charge and free from encumbrance, the por- tions of their holdings falling within the lines of said streets, to cause all the registrations and surveys necessary for these purposes to be made, to execute the necessary authentications and make the neces- sary dispositions and to bear the resulting stamp and other costs excepting the costs of survey in proportion to their land areas thrown into the replotting, in so far as the parties do not enjoy freedom from stamps and duties. SEC. 4. The contracting parties bind themselves to convey to the new owners the lots assigned to them in accordance with sec. 2, free from mortgage encumbrances, liens, or other burdens. . . ." SEC. 5. The construction of the streets within the replotting dis- trict, as well as the permission to build on land abutting on these streets, is subject to the conclusion of a separate agreement with the Department of Streets and Sewers, which shall be concluded at latest October I, 1910." SEC. 6. The contracting parties agree that the city of Frankfort- on-the-Main, in return for the extra expense incurred or to be in- curred by it for the purchase of the realty known as No. 179 Fxken- heimer Landstrasse and No. 7 Kuhhornshofstrasse, needed for lay- ing out streets, shall at once be assigned a net area of 26 ares, .06 square meters. SEC. 7. Restrictions on Use of Land and Buildings thereon. In order that the replotting district may have and retain the char- *The statute of July 2, 1875, is the Prussian City Planning Statute. A translation of this statute will be found on p. 466 ff. of this work. That statute provides for the surrender of land by the owners, under certain conditions, for new streets, and for the passing of local statutes vary- ing these provisions in certain respects, if the city so desires. 10 In some contracts the city agrees to execute at its own cost certain clearance and construction work of peculiar character and unusual expense. 11 Often the replotting contract is made subject to the execution of a given contract for street construction, a copy of which is, in such cases, annexed. EXCESS CONDEMNATION ETC. IN EUROPE 125 acter, in part of a district of detached houses, in part of a better class residential district, the following agreements are made by and be- tween the parties to this contract: (l) For building in the replotting district, in addition to the building police regulations at any time in force, the following special rules shall be made and established by entry of a servitude : [Here follow provisions for the approval of plans by the building commissioner," the exclusion of business except at certain places, and the minimum number of rooms in houses on certain streets.] u ii For the regulation of building in [a specified part of the replotting district] in addition to the rules to be introduced, as provided in I, above, by the entry of a servitude, there shall be building police regu- lations substantially to the following effect, issued by the building police by ordinances as an addition or amendment to the Building Police Ordinances with Regard to Building in the Outer City : [Here follow provisions with regard to the height of houses, the permitted number of apartments in them, rear building lines, distance between houses, and the care of front lawns.] The restrictions in building on and use of land, provided for in I, above, shall be considered as a limited personal servitude in favor of the municipality and as an encumbrance on the land in question, as provided for in sees. 1090 and 1092 of the Civil Code " and shall be entered in the land book." Sec. 1091 of the Civil Code shall not M In some contracts a mixed commission, appointed by the city and the property owners, passes on plans. 14 In some contracts there is a provision that : "The above restric- tions on building on and use of land shall remain in force, any change or abrogation, total or partial, in the contemplated building ordinance for the districts in question notwithstanding." 14 It is the code of the entire Empire, in force January I, 1910, which is referred to. 15 In another contract with other parties and with relation to other land, the city agreed that: "In so far as the city is the owner of lots of land in the replotting district, it is understood that such land is sub- ject to all the provisions of Part I, to the same extent as land of other owners: and the city hereby expressly agrees for itself to observe, in so far as the lots of land owned by it are concerned, the building and use restrictions stated in said Part I. "In so far as the city of Frankfort sells lots of land in the replotting district it agrees to see to it that, when such sales are made, the said building and use restrictions of Part I are, as provided in Part I, re- corded as a lien on these lands, and, in favor of the municipality, made a limited personal servitude, and so recorded against the purchaser in the land book. "These provisions, however, shall not apply to buildings erected for 126 THE LAW OF CITY PLANNING AND ZONING apply. 1 * The land owners hereby bind themselves to cause the above mentioned servitude to be entered in the land book, prior to all mort- gages and other encumbrances, and the undersigned consent and agree to the entry of such real servitude. The municipality of Frankfort-on-the-Main will agree, on the demand of the mortgagees of a first mortgage to be placed, to give it priority over said servitude to the extent that the mortgage lien does not exceed 60% of the value of the realty in question. For the valuation the appraisal of the City Treasury together wkh that of the Department of Buildings or the Building Police shall alone control." in All the parties to this contract agree that by virtue of the con- tract, throughout the replotting district, all such provisions as are now in force with regard to the space between buildings by virtue of pri- vate law, especially the provisions of the Frankfort law of April i, 1851 with regard to such space, fencing, and ways of necessity, shall be regarded as revoked, and in their place the agreements of this contract and, in so far as there are none such, provisions of the building police ordinance existing at any time, shall alone be in force. SEC. 8. With the exception of the cost of surveys, which remain wholly the obligation of the municipality of Frankfort-on-the-Main, all the costs arising out of the making and execution of this contract, including the cost of conveyance as well as that of the stamp dues, monumental and public purposes and which belong to the city or other public corporations (e.g., churches, schools and the like) so long as these buildings remain the property of these corporations, or devoted to such public purposes, or retain their monumental character. As soon as any of these prerequisites cease to exist, the provisions of the two previous paragraphs apply to the lot in question with full force and vigor. "The city will, so far as possible, see to it that the purpose sought to be attained by said sec. (7) shall not be jeopardised by the method of building on or use of the neighboring districts. This provision applies especially to [here follows a description of certain neighboring dis- tricts], for which, when they are opened for building, regulations similar to those stated above (pars. I. II, III) shall be establi- 1 ** Sec. IOQI of the Imperial Code provides that the presumption in cases of doubt shall be in favor of the person entitled to the servitude. In some case- tlur< are provisions Iiy which property owners give certain city officials power of attorney to carry out and complete the contract by designating, describing and bounding lots of land, executing and recording further conveyances, etc. "A |>r<>vi>i<>n not inserted in the usual contract. It illustrates the possibility of varying the form here given to suit special circumstances. EXCESS CONDEMNATION, ETC. IN EUROPE 127 shall be borne by the parties to this contract in the proportions of the lots thrown into the replotting by them to each other (comp. sec. i). [Here follow provisions exempting the contracting parties from transfer and other taxes, etc.] SEC. 9. The above contract shall be in force upon the conclu- sion of the contract with regard to the construction of streets within the replotting district and permission to build on land abutting on them, mentioned in sec. 5. Dated, etc. CHAPTER III EXCESS AND ZONE CONDEMNATION AND RE- PLOTTING IN THE UNITED STATES ' Revival of Excess Condemnation in the United States. Excess condemnation, practiced with success under the New York statute passed in 1812, virtually ceased to be employed in this country after that statute was held to be unconstitutional in 1834 and did not again appear until revived in Ohio and Massachusetts seventy years later. 2 In 1903 the Massachusetts legislature appointed a commit- tee to study foreign law and practice on this subject. Late in that year the committee made a report 8 recommending the passage of a law authorizing the condemnation of remnants and of enough neighboring land to form, by union with them, suitable building lots for sale and private development. The legislature at that time, however, was unwilling to pass so broad a statute, and enacted a law 4 merely allowing the con- demnation of the remnant itself when too small for independent development, and its elimination by resale to the owners of adjacent property, if they chose to purchase it. This statute proved to be of little or no value, and a later legislature, in its 1 For reference to the various constitutional and statutory provisions relating to excess condemnation, see Tables of Statutes. The text of the most important constitutional and statutory provisions is given in note B.. p. 148 ff. 'See p. 70. A Pennsylvania Statute was passed April 14, 1868 (P. L. 1087, sec. 13), authorizing the Fairmount Park Commission of Philadelphia to condemn and sell remnants ; but the only case where this was done seems to have been one occurring a few years ago ; see Cushman. Excess Condemnation (H>I~), p. 61. A New Jersey Statute (1870. ch. 117) which authorized Newark to replot a small portion of it* .tn.i. should also be noted in this connection. It is reprinted <>n p i.yj. 'Mass. Hints? J)in-utncnts, 1004, Nos. 288, 1096. See also final report of tin- Joint Hoard on Metropolitan Improvements, 1911. 1904, ch. 443- 128 EXCESS CONDEMNATION ETC. IN THE U. S. 129 desire to authorize the taking by eminent domain of the neigh- boring land, as the committee of 1903 had suggested, asked the opinion of the Judges of the Supreme Court of the state as to the validity of such a law, and received the reply 5 that in their judgment the existing statute of 1904 was legal, but that the proposed measure would be unconstitutional. Whereupon, in 1911, the legislature amended the state constitution to permit the passage of such a law. 6 A number of statutes and amend- ments of state constitutions authorizing excess condemnation for the purpose of eliminating remnants have been passed in this country since the enactment of the Massachusetts statute of 1904, all of which permit the condemnation of neighboring land to that end. The only other measure in this country for this purpose which does not allow adjacent land to be so taken is the New York statute of 1812, which, however, is broader than the Massachusetts statute of 1904 in that it does not place any limit on the size of the remnant that may be condemned. Purposes of Taking. The Ohio statute, passed in 1904,* a few weeks before the enactment of the Massachusetts law, 8 was the result of a suggestion of the commission that recom- mended the creation of a civic center for Cleveland, but was passed as an amendment to Ohio's well known municipal code of 1902 and applies to all the cities of the state. The Ohio provision authorizes Ohio cities to condemn excess land to protect certain classes of improvements and preserve their "view, appearance, light, air and usefulness." A purpose expressed in the statute of one state 9 is the proper plotting of the excess land in connection with the main improvement. The statutes of one state 10 authorize condem- nation, and excess condemnation, as an aid in the construction of houses to relieve congestion. Very evidently the purposes of these various statutes are not in all cases mutually exclusive. 6 Opinions of Justices, 204 Mass. 607, 616 (1910). 'Mass. Constitution, Art. X, Part, i, as added to by Art. XXXIX of amendments. 7 Now General Code of Ohio, 1910, sec. 3677, par. 12 "The Ohio Statute was approved by the Governor April 25; the Massachusetts Statute, June 8. 'Virginia; and, less clearly, in several other states. 10 Wisconsin. 130 THE LAW OF CITY PLANNING AND ZONING None of the statutes or constitutional amendments in this country expressly authorize condemnation for the sake of mak- ing a profit. All of them, however, provide that the excess property may be sold. Evidently, therefore, the transaction may result in a profit. In some cases it is provided that the sale may be "with," in some cases "with or without" proper restrictions to secure the accomplishment of the aim of the law; in others there is no provision for the imposition of re- strictions. It may be asked whether the result of a taking under a statute in which there is no provision for restrictions on the sale can be to the advantage of a city or other public body in any other way except financially. To this question there are two answers. The right of a city, with the authority of the legislature, to dispose of an absolute or partial interest in any real estate of which it has rightfully obtained the title would seem to be clear, and even if the title were not limited when transferred, the city, by combining remnants with the adjoining land, or otherwise replotting it, achieves a result which is for the public benefit and which, when once obtained, will in all probability endure without any legal restrictions to safeguard it. The provisions for imposing restrictions on land resold would not seem, therefore, essential to the validity of an excess condemnation statute. Excess condemnation provisions differ in other respects be- sides that of expressed purpose. Thus under the Ohio statute u the improvement in connection with which the power may be employed is limited to the establishment of park and other spaces around public buildings, while under other provisions it may be exercised in aid of parks of all sorts; 12 including play- grounds; 13 streets and squares; 14 sites for public buildings; IB or any public work. 16 In the Ohio statute and some others the power is given to municipalities, while under other enactments u See Tables of Statutes. a Pennsylvania, Massachusetts (1904), and others. u Wisconsin (Constitution), Oregon and others. "In most of the provisions. " Connecticut, Wisconsin (Constitution); see also Maryland. "Ohio (Constitution), Virginia. EXCESS CONDEMNATION ETC. IN THE u. s. 131 it is either extended also to towns, 17 and the state, 18 or limited to certain cities or classes of cities; in the Ohio statute and some others it is provided that any land needed for the pur- poses for which the power may be exercised can be taken, while in some other provisions land only within two hundred 19 or three hundred feet of the main improvement, 20 or land suffi- cient to form suitable building lots, 21 or sites, 22 can be so con demned. Constitutional Amendments. From the first there was a general fear that a statutory power of condemnation would be held by the courts to be a taking of property for a use that was not public and therefore that the statutes would be held to be invalid as contrary to the constitutions of the various states and of the United States. The advocates of excess condem- nation observed that as a rule the state constitutions were more strictly construed than the Constitution of the United States. 23 They therefore advocated and secured amendments of excess condemnation to the constitutions of several states, the first amendment being that of the constitution of Massachusetts in 1911 already referred to. Two of these amendments those in Ohio and Wisconsin are self executing; under the Massa- chusetts amendment the executory act in each case specifies the lands to be taken in excess; and in other states which have amendments of excess condemnation New York and Rhode Island the legislature may pass general laws authorizing such condemnation. A number of laws have been passed under the amendments of the constitutions of Massachusetts, New York and Rhode Island. Owners' Right of Repurchase. There is a feeling on the part of some that the owner .of the land condemned in excess should be given the first right to repurchase it, and 17 Massachusetts (Constitution), Rhode Island and others. 18 Wisconsin (Constitution), Virginia, and others. 19 Pennsylvania, Oregon. J0 Wisconsin. 21 Massachusetts ( Constitution) . "New York and Rhode Island (Constitutions). 33 See p. 22. 132 THE LAW OF CITY PLANNING AND ZONING evidently the hostility of the Pennsylvania court to the statute of that state was partly due to the absence of such a provision. Many foreign laws give the former owner this right, 24 but the only provisions in this country of this sort are those of Massa- chusetts and Rhode Island. Taking on Security of Excess Lands. In Ohio the constitutional amendment provides that a bonded indebted- ness in payment for the land taken may be created, but that it shall be a claim only against the property acquired for the improvement and the excess, and not against the municipality or included in the debt limit. This is the use of a well known device, more fully discussed elsewhere, 25 to avoid the effect of debt limits which often unduly hamper municipal growth. There is, however, an important difference between an improve- ment of the sort for which excess condemnation is useful, and such transactions as the construction or acquisition of public utilities, to which provisions such as this usually apply. Sound practice requires that the utility should be self-supporting, and therefore an adequate security for the indebtedness incurred, while this is by no means necessarily true of many improve- ments, such as thoroughfares and parks, in connection with which, nevertheless, excess condemnation would often be most useful. Constitutionality of Excess Condemnation. The ques- tion of the constitutionality of excess condemnation in this country is the question whether or not such condemnation can fairly be said, on principle and on the authority of the legal decisions on the subject, to be for a public use. Nowhere in the constitutions is such a criterion expressly set up. They merely provide that property shall be taken for a public use only on payment of just compensation, or by due process of law. The prohibition of any taking for a private use is deduced from these provisions, and is sustained by all the cases on the subject. The expressed purposes for which excess condemnation is authorized in this country the elimination of remnants, the "*Sec also p. 67, note 10. " See p. 362. EXCESS CONDEMNATION ETC. IN THE U. S. 133 plotting of the land adjacent to the main improvement, the protection of its light and air, the enhancement of its attrac- tiveness are all purposes which, whatever may have been the case a few decades ago, are now generally recognized by the courts and the public to be in the public interest. The decisions directly upon excels condemnation, however, are generally ad- verse. These decisions, few in number and all in state courts, do not, in the main, take up the aspects of the provisions in which they differ, but consider the general theory underlying them all. They may be divided into the older decisions ren- dered between 1824 and 1863, interpreting the statutes first passed in this country on this subject, and the modern deci- sions made after excess condemnation had been reintroduced here in 1904. The earlier cases consist of a decision in South Carolina, 28 and a case, with the cases in accord with it, in New York. The South Carolina case, decided in 1824, interprets a little known South Carolina statute which became a law in 1817; 27 the New York case 28 passes on the well known statute of that state, enacted in i8i2. 29 The purpose stated in both these statutes is the elimination of remnants. In the opinion of the judges in these earlier cases all excess condemnation is unconstitutional as a compulsory taking of private property for a use which is not public. The authority of these cases, however, is weakened by the fact that in each case they hold that the statute which they are interpreting authorizes only an excess taking with the consent of the prop- erty owner; which is not condemnation but purchase. The statements with regard to excess condemnation are therefore dicta not necessary to the decision of the case, of little force in subsequent cases. If the taking is really in excess, it would seem that the municipality, existing as it does for the benefit of " Dunn v. City Council of Charleston, 16 South Carolina Law Re- ports (sometimes cited as Harper's Law Reports), p. 189. "7 Statutes, 136. "In matter of Albany Street, II Wendell CN. Y.) 149 (1834); see also Embury v. Conner, 3 N. Y. 5,11 (1850), Bennett v. Boyle, 40 Bar- bour (N. Y.) 551 (1863). 28 Laws of New York, 1812, ch. 174. 134 THE LAW OF CITY PLANNING AND ZONING its public, could not acquire it even by purchase ; but the courts, whose real objection to excess condemnation seems to have been the supposed injustice, or in any event hardship, to the owner of excess condemnation, have uniformly supported excess acquisition to which he has consented, although in both cases he receives full compensation; nor have they thought it necessary to inquire whether an excess purchase was for the benefit of the municipality at whose expense it was made. 30 Nowhere in the earlier cases with regard to excess condem- nation, either in the arguments of counsel or in the opinion of the judges, is there shown any knowledge or appreciation of the advantages of excess condemnation to the community. Thus the South Carolina judges state the issue to be "Whether the Legislature has the constitutional right of taking the prop- erty of one individual, and transferring it to another, or to a body corporate, for their own individual benefit and emolu- ment;" 31 and in one of the New York cases it is said that "it needs no argument to show that the end and design of this section was not to take private property for the use of the public." 32 Naturally the judges decided that such an inva- sion of property rights was unwarranted. The Modern Court Authorities on Constitutionality. The modern decisions on excess condemnation consist of two opinions of the Justices of the Supreme Court of Massachu- ** Embury v. Conner, just cited; Durgan v. Boston, 12 Allen (Mass.) 223 (1866). It must also be remembered that, although it might be within the power of a taxpayer if he learned of the project seasonably, to raise the objection that public money would be spent for an unau- thorized purpose, only the state can challenge the completed transaction (MacQuillan, Municipal Corporations, Vol. IV, p. 2487), and it is usually the owner of property unwilling to part with it who raises objections of this sort. This is a logical distinction, not without possible merit. Cities should not be permitted to obtain land or do any act except for the general good ; but legislatures may well regard the bestowal of a power of voluntary purchase as expedient for objects for which they would hesitate to grant the much more drastic power of compulsory acquisition. "Dunn v. Charleston, 16 South Carolina (sometimes cited as Harper's) Law Reports, p. 189 at p. 199 (1824). ^Embury v. Conner, 3 N. Y. 511 at p. 516 (1850). EXCESS CONDEMNATION ETC. IN THE U. S. 135 setts, already referred to, 33 and a case in Pennsylvania. 34 Except for the support by the Massachusetts judges of the con- demnation of remnants too small for independent development, as a minor incident in a main improvement the extent to which there is judicial approval for excess condemnation in this country these authorities hold excess condemnation to be un- constitutional, as a taking of property for a private use. It should be noted, however, that the utterances of the Massa- chusetts judges are not, and are not fully entitled to the weight of, judicial decisions; for, as the judges themselves say: 35 "in giving such opinions, the justices do not act as a court, but as constitutional advisers of the other departments of the government." As a court it is their duty to decide mat- ters actually at issue. They give advice only in accordance with a special provision of the constitution requiring it. 36 A mere statute imposing such a duty is invalid as an attempt to force the judiciary, a coordinate branch of the government, to per- form duties that are not judicial in their nature. 37 As a rule also the judges are more conservative in rendering opinions than in deciding cases in which actual issues are at stake, inves- tigated and presented by lawyers. Implicit in the earlier cases is the theory that a public use is necessarily a use by the public; and that, therefore, a taking for use by a private person or corporation, however much for the 'public advantage, cannot be sustained in this country. It is on this theory explicitly stated that the modern cases hold excess condemnation to be unconstitutional. In support of this doctrine they rely upon the Massachusetts case of Lowell v. Boston 38 and the many authorities in various jurisdictions in accord with it. This case decided that il statute authorizing 33 Opinion of Justices, 204 Mass. 607; ib. p. 616 (1910). 84 Penn. Mutual Life Ins. Co. v. Philadelphia, 242 Perm. St., Reports, 47 ( I 9 I 3) ! see also Bond v. Mayor and City of Baltimore, 116 Md. 683 (1911). 85 Opinion of Justices, 126 Mass. 557 at p. 566 (1878); in ace. 95 Maine 564 (1901). 36 Mass. Const, ch. Ill, art. II. 37 Application of Senate, 10 Minn. 78 (1865). 38 1 li Mass. 454 (1873). 136 THE LAW OF CITY PLANNING AND ZONING the city of Boston to borrow money to lend to citizens for the purpose of reconstructing buildings which had been destroyed in the great fire of 1872, was invalid. The Massachusetts jus- tices say in this case: "The lending of such money presumably would have promoted building and the transaction of business in the devastated district, but the benefit to the public would not have been direct, but only inci- dental." and they quote with approval the statement in that case that "It is the essential character of the direct object of the expendi- ture which must determine its validity, as justifying a tax, and not the magnitude of the interests to be affected, nor the degree to which the general advantage of the community, and thus the public welfare, may be ultimately benefitted by their promotion." This is also the theory of the Pennsylvania case and these are the authorities upon which it is based. Effect of Recent Decisions of Supreme Court of United States. The position taken by the Massachusetts justices and the Pennsylvania court is much weakened by recent decisions of the Supreme Court of the United States upholding state statutes for the condemnation of land for a private use, such as irrigation or mining on private land, 39 on the ground that the private advantage may be so conducive to public prosperity and well-being as to be a public use for which resort may be had to the power of eminent domain. This holding has much to be said in its favor, and in comparison the doctrine announced by the Massachusetts and Pennsylvania judges seems highly technical. The commonwealth is composed of private people, and it is still the theory of our law that the wealth and property of the state should IK- in their hands for development, with such aids and limitations as the commonwealth may impose. It would seem clear to the layman that it would often he ex- tremely desirable to pass regulative measures aiding these private citizens in this development, and that it might in some cases be done in such a way as, far from injuring the other "Strioklry v. llinhl;iml !'.> Mining Co., 2OO U. S. 527 (1906); Gark v. Nash, L>S T. S .tf.i (1905). EXCESS CONDEMNATION ETC. IN THE U. S. 137 members of the community, would be of benefit to them ; leav- ing the question as to whether the particular use was suffi- ciently widespread and of sufficient general importance to be regarded in law as public, to be settled on its merits in each specific case. Even, however, if the narrower and older conception of a public use be adhered to, it does not follow that excess con- demnation is unconstitutional. Most of the statutes authorize the taking of an interest in the excess land, which is retained in public use and ownership. Thus under the statute held invalid by the Pennsylvania court Philadelphia attempted to take excess land to preserve view, appearance, light, air, etc., for the public in its use of a public park way. It is true that a part interest in this excess land was to be subsequently sold the interest which would have been of no advantage to the public ; but it is just as true that an easement a part interest recognized uni- versally as valid in our law was to be retained in perpetuity. It is now recognized that an easement to secure light, air and view, and to improve the appearance of a public work, may be taken by eminent domain. 40 The legislature in this statute of excess condemnation authorized the taking of the entire title as an expedient method of obtaining such an easement ; and it is established law that the legislature is the judge of the extent of the interest necessary to be acquired and, in general, of 'the means to be employed in the accomplishment of a lawful object. 41 There are a few statutes of excess condemnation those whose purpose it is to secure the elimination of remnants or the replotting of excess land which do not contemplate, in so doing, the permanent retention by the public of any interest in this land. But to the full accomplishment of these ends no such permanent interest is necessary. Laws authorizing the taking of land for a limited period of time for the purpose of doing some public work, and its resale after that work is accom- plished, are common in this country, and have repeatedly been sustained by our courts. The proper plotting of land would ^Atty. Gen. v. Williams, 174 Mass. 476 (1899) ; see also p. 173. " See p. 21. 138 THE LAW OF CITY PLANNING AND ZONING clearly seem to be such a purpose; and with the progress of city planning in this country there is good reason to hope that it will be recognized. 42 It should also be noted that temporary use is nevertheless use, and that these uses are, in excess condemna- tion for replotting, uses by the public within the narrow defini- tion of that expression. Taking for Profit. It has already been pointed out that none of the provisions for excess condemnation in this coun- try authorize its use for the purpose of obtaining financial profit, although obviously profit or loss may be one of the re- sults. It is well settled in this country that a municipality can- not undertake an enterprise merely for the sake of the resulting profit. If, therefore, the enterprise in question be regarded as the taking of the additional land, and the purpose of the taking be the profit, the enterprise, so defined, is unwarranted. This is the way in which the Massachusetts judges, in their opinion already cited, regarded the matter. 43 But, it is submitted, the enterprise is not the taking of the additional land ; that is merely a more or less important incident in the main enterprise of con- structing the street, civic center, or other improvement. Any business man would regard the making of money in connection with a transaction in order to pay for it as a very real, if inci- dental, part of the enterprise; like the utilization of a waste or by-product in manufacturing. Practically, however, the point of view of the courts on this point is unimportant; for the taking must be for some purpose named in the statutes, and the existence of some other reason, such as probable profit, however potent, is in that case immaterial. Other Methods of Securing the Profit for the Public. Excess condemnation is not the only method of appropriat- ing for the public the increment in value resulting from a pub- lic improvement. Up to the amount of the cost of the im- provement this may be done by the levy of local assessments, now in common use in this country 44 and it may be accom- *See in this connection Windsor v. Whitney, 95 Conn. 357 (1920), discussed on p. 36 of this work. * Opinion of Justices, 204 Mass, at p. 610 (1910). **Sec p. 363. EXCESS CONDEMNATION ETC IN THE U. S. 139 plished to any desired extent by the imposition of an increment tax, in use in several foreign countries and often suggested for use here. Of these methods only excess condemnation, how- ever, controls the development and use of the neighboring land. By this control the community may also obtain not only the city planning advantages already referred to, but others indi- rectly of benefit to city property and the city treasury. If, for instance, the city constructs an important public building or group of buildings, and selects a site suited to the purpose where land values are low, the value and usefulness, not only of the neighboring land, but of the principal improvement, will be dependent, to a considerable extent, upon the use made of this neighboring land, and the class of purchasers and tenants secured for it. In a new development, control on a large scale is almost sure, by controlling initial use, to raise values, while neglect of this precaution is equally likely permanently to de- press them. In such cases, therefore, excess condemnation safeguards the usefulness and value of the main improvement. Probable Attitude of United States Courts. The legal cases on excess condemnation in this country have so far all arisen in state courts, on state statutes, passed under state constitutions not amended to authorize excess condemnation. The question of the validity of these statutes and of the amendments to state constitutions has not yet arisen in the fed- eral courts. In all probability, however, a state which has sus- tained a statute of excess condemnation in its courts or amended its constitution to authorize it, has nothing to fear in the United States Courts, for two reasons: the Supreme Court of the United States has already accepted the broad definition of a public use ; and it has never yet held a use to be private which the state legislature and constitution, as interpreted by the state courts, has held to be public; and its decisions show that it is very loath to do so. 45 Zone Condemnation. Zone condemnation is, as has al- ready been stated, the condemnation of a tract of land of a particular character for replanning in a particular way. The expression is, therefore, one more of city planning than of 48 See p. 22. 140 THE LAW OF CITY PLANNING AND ZONING law. In the sense in which the expression is here used, there has been no zone condemnation in the United States. Unques- tionably, there are districts in cities in the United States where zone condemnation could be most advantageously employed, and the only question remaining for consideration is whether it would be constitutional. Similarity of Drainage Schemes ; the Boston Back Bay Cases. Unlike excess condemnation, which is incidental to another, main condemnation, zone condemnation is complete and independent, and may be defined as ordinary condemnation for a specific purpose. The difficulty of introducing zone con- demnation in this country is that of convincing the courts of the importance of the proper planning and plotting of slum areas for the promotion of the public health and safety, and of the advantage of carrying out this planning, plotting and reconstruction as a single enterprise. In these days when city planning is so rapidly winning recognition, this should not be difficult. Statutes for the condemnation, replanning, replotting, reconstruction and resale of a tract for a purpose recognized as public, such as securing proper drainage, are not uncommon, and have been sustained by our courts. Thus Massachusetts in 1867 46 authorized the city of Boston, for the purpose of rais- ing the level of part of the Back Bay district so that it might be properly drained, to condemn the absolute and entire title to an extensive tract of land, traversed by streets, upon which there were, in some cases, buildings and other improvements; to fill it in, and to resell it for private uses. This the city did with profit and success; and the statute under which it was done was held valid by the Supreme Court of Massachusetts and the Supreme Court of the United States. 47 In sustaining this statute, the Supreme Court of the United States said : "In determining whether the legislature, in a particular enactment, has passed the limits of its constitutional authority, every reasonable presumption must be indulged in favor of the validity of such cnact- **Ch. .308; similar statutes are Mass. Laws 1008, ch. 117 and 1910. ch. 606. "Dingley v. Boston, 100 Mass. 544 (1868) ; Sweet v. Rechel, 159 U. S. iSo (1895). EXCESS CONDEMNATION ETC. IN THE U. S. 141 ment. It must be regarded as valid, unless it can be clearly shown to be in conflict with the constitution. It is a well-settled rule of constitutional exposition, that if a statute may or may not be, accord- ing to circumstances, within the limits of legislative authority, the existence of the circumstances necessary to support it must be pre- sumed. 48 . . . "In Dingley v. Boston, ... it was objected, that as the act [of 1867] authorized the city to first take the land and thereby transfer to itself the fee without the consent of the owners, and as the only object of the legislature was to abate a nuisance, the act should only have granted power to occupy the land until its object was effected by raising the grade, which being done, the land should have been restored to the owners, applying the benefit received therefrom in offset to the damages. That objection was fully met. Conceding it to be true that the raising of the grade did not require the occupation of the land for a great length of time, and that when the work was com- pleted the nuisance was abated, and the land in a condition to be occu- pied by private persons, the court said: 'But its condition will be greatly changed; almost as much as raising flats into upland. The former surface will be deeply buried under the earth that will have to be brought upon it, and the changed condition is to be perpetual. If the old property is restored, the new property which has been annexed to it must go with it. This would be very unjust to the city, which has been compelled to incur the great expense of destroying the nuisance, unless the owner were required to make a reasonable com- pensation, which might be far beyond the amount of the damages to which he would be entitled. It would be difficult to adjust the matter; and in many cases it might operate harshly upon the owner to compel him to take and pay for the improvements. On the whole, therefore, the plan of compelling the city to take the land in fee simple, and the owner to part with his whole title for a just compensation, would seem to be the most simple and equitable that could be adopted ; unless there is some objection on the ground that a fee simple is more sacred than an estate for life or years, or than an easement of greater or less duration. We can see no ground for regarding one of these titles as more sacred than another, or for regarding land as more sacred than personal property. ... It must ... be left to the legislature to de- cide what quantity of estate ought to be taken in order to accomplish its purpose, and do the most complete justice to all parties. . . . The Constitution provides for the protection of all private property, and it provides that when the public exigencies require that the property of any individual shall be appropriated to public uses, he shal! receive a reasonable compensation therefor. But it leaves the legislature, *" Citing Talbot v. Hudson, 16 Gray (Mass.) 417, 422 (1860) ; Fletcher v. Peck, 6 Cranch (U. S.), 87, 128 (1810) ; Sinking Fund Cases, 99 U. S. 700, 718 (1878). 142 THE LAW OF CITY PLANNING AND ZONING without any restriction, express or implied, to decide in each case as it arises, what constitutes such exigency; and, if the land is to be taken, what estate in it shall pass.' " No more unqualified and complete recognition of both the principles and the methods of zone condemnation is possible than that made in these decisions of the conservative and able Supreme Court of Massachusetts and of the Supreme Court of the United States. Replotting. Replotting, or the resubdivision of building land under the police power, is needed as much perhaps in this country as abroad. In the United States land in the outskirts of our cities is not, it is true, divided minutely or into extremely narrow strips, as it is in some foreign countries ; but we have, much more commonly than they, the unscientific gridiron sys- tem of street planning, often covering vast suburban areas entirely free from improvements. Even the streets, in many cases, although on the map, are not constructed. The great difficulty in introducing a more sensible street plan in those parts of our cities is the subdivision of land into private lots owned by many different individuals and adapted to the pro- jected streets. With replotting these lot lines could be read- justed to new street lines with no more than a trifling incon- venience or expense. As soon as we realize the cost, in so many ways, of the gridiron plan, we shall see the advantages of replanning and the difficulty of so doing without replotting. Our cities, also, are less substantially constructed than foreign cities, and more often devastated by fire, flood or other dis- aster, and, being more carelessly planned, are in greater need of replanning; of which replotting is a necessary part. Is the em- ployment of the police power for this purpose, supplemented in some cases by the power of local assessment, constitutional, or is replotting only possible under eminent domain, and there- fore a practical impossibility? Replotting under governmental supervision may be justified as a necessary part of planning many parts of our cities, and therefore as a means of promoting the public health, safety, convenience and prosperity. It may also be supported, like EXCESS CONDEMNATION ETC. IN THE U. S. 143 the employment of the power of eminent domain, as an aid to private uses of property most important to the general well- being, the test as to whether eminent domain or the police power should be resorted to in any given case, being whether it is rea- sonable. It was in applying this test to decide under which of these powers the Back Bay Improvement should have been undertaken that the Supreme Court of the United States said : 49 "It is not alleged in the pleadings, nor was there any evidence tending to show, that the cost of raising the grade would have been so slight, compared with the real value of the property, that a due regard to the constitution demanded that the owner should have been given opportunity to raise the grade at his own expense, and retain the property in its improved condition." Uses of Police Power Analogous to Replotting. Freund, in his admirable book on the police power 50 states the case for the employment of the police power for a private interest that is also public, forcibly, but more apologetically than, in the light of recent cases, seems necessary, as follows : "While in general a person will not be compelled to improve his land in a particular manner, the principle suffers some modification where the improvement (without being strictly or directly public, though perhaps remotely and indirectly so) is common to several adjoining estates. In one aspect the compulsion is exercised in favor of other persons, and thus resembles the legislation allowing the con- struction of private ways, drains and ditches across the lands of others. . . . But in the cases to be now considered the owner whose land is affected by the exercise of the power shares in the benefit of the improvement to which he is made to contribute, and because he does so share he may be compelled to bear a part of the cost of the joint enterprise." As other instances of compulsory joint improvement Freund cites 51 party walls and divisions fences. Analogies to Drainage and Irrigation. A striking ex- ample of this use of the police power supplemented by the * Sweet v. Rechel, 159 U. S. 380 at 393 (1895). 80 Sec. 440. "Sees. 443-444. 144 THE LAW OF CITY PLANNING AND ZONING power of local assessment 52 is furnished by the drainage and irrigation laws in this country, which, as Freund says : 6a "provide that where a number of pieces of land are so situated that either the improvement can be undertaken only jointly, or that the joint improvement will be more effective or more economical than individual works, a stated number or proportion, usually a majority in interest or area, of owners may petition the proper authorities for the creation of a drainage or irrigation district, which may include the lands of non-consenting owners. After notice and hearing which is constitutionally indispensable, if a proper case is made out, the district is made a quasi-public corporation, commissioners are elected or appointed for the management of the work, and the expense is assessed upon the owners according to the benefit received by each. ... It is true that ordinarily an owner will not be forced to improve his land merely to increase the general prosperity of the country ; nor will one party be forced into a partnership with another, because the interests of both can be better served by joint than by individual action. But lands may be so situated toward each other as to create a mutual dependence and a natural community. The exercise of the police power then consists in applying to this com- munity the same principle of majority rule which is recognized, as a matter of course, for local purposes in larger neighborhoods consti- tuting political subdivisions." There are drainage laws similar in principle in most if not all the civilized countries of the world. The drainage of a tract of low lying land belonging to a number of owners, in order to make it useful or increase its use- fulness, resembles, in every essential feature, the replotting of a similarly owned tract which is unavailable because of faulty subdivision. The doctrine stated by Freund now has the endorsement of the Supreme Court of the United States. In Fallbrook Irrigation District v. Bradley 84 that court in 1896, said with regard to the irrigation of private land in California: "The case does not essentially differ from that of Hagar v. Re- clamation District, in U. S. 701, where this court held that the power of the legislature of California to prescribe a system for reclaiming * Local assessment is insufficient, because a measure of control over the land must be exercised. ** Sec 441. "164 U. S. us (1896). EXCESS CONDEMNATION ETC. IN THE U. S. 145 swamp lands was not inconsistent with any provision of the Federal Constitution. The power does not rest simply upon the ground that the reclamation must be necessary for the public health. That indeed is one ground for interposition by the State, but not the only one. Statutes authorizing drainage of swamp lands have frequently been upheld independently of any effect upon the public health, as reason- able regulations for the general advantage of those who are treated for this purpose as owners of a common property. Head v. Amos- keag Manufacturing Co., 113 U. S. 9, 22; Wurtz v. Hoagland, 114 U. S. 606, 611; Cooley on Taxation, 617 (2d ed.). If it be essential or material for the prosperity of the community, and if the improve- ment be one in which all the landowners have to a certain extent a common interest, and the improvement cannot be accomplished with- out the concurrence of all or nearly all of such owners by reason of the peculiar natural condition of the tract sought to be reclaimed, then such reclamation may be made and the land rendered useful to all and at their joint expense. In such case the absolute right of each individual owner of land must yield to a certain extent or be modified by corresponding rights on the part of other owners for what is declared upon the whole to be for the public benefit. "Irrigation is not so different from the reclamation of swamps as to require the application of other and different principles to the case." In 1915, the Supreme Court of the United States reaffirmed the opinion it gave in the Fallbrook case, and in so doing said : 55 "In Drainage District No. i v. Richardson County, 86 Nebraska 35 . . . the Supreme Court of Nebraska said upon this point: That question was decided by this Court in the case of Neal v. Vansickle, 72 Nebraska, 105. It was there said . . . "In our opinion, it is too late in the day to contend that irrigation of arid lands, the straighten- ing and improvement of water courses, the building of levees and the draining of swamp and overflowed lands for the improvement of the health and comfort of the community, and the reclamation of waste places and the promotion of agriculture, are not all and every of them subjects of general and public concern, the promotion and regulation of which are among the most, important of govern- mental powers, duties and functions." . . . We see no reason at this time to depart from that opinion, and therefore this contention must be considered foreclosed so far as this court is concerned.' . . . "We find no ground for a contrary view as to the nature of the authorized enterprise. ... It has been held that it is not necessary "O'Neill v, Learner, 239 U. S. 244 (1915). 146 THE LAW OF CITY PLANNING AND ZONING that the state power should rest simply upon the ground that the undertaking is needed for the public health ; there are manifestly other considerations of public advantage in providing a general plan of reclamation by which wet lands throughout the State may be opened to profitable use. (Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 163.)" Analogies to Compulsory Joint Improvements. Lewis on Eminent Domain 50 cites the decisions rendered and the various statutory and constitutional provisions passed on the subject of compulsory joint improvements up to the date of the publication of his book, as based on eminent domain. Nichols, however, in the recent edition of his work on eminent domain, issued in 1917, adopts the view here maintained. He says : "Sec. 105. Legislation Aimed to Prevent the Tieing up of Pro- ductive Property. . . . There is one example of this branch of the police power which strongly resembles an exercise of the power of eminent domain, although it is held by the courts that it does not involve a taking of property, or require the public use for its justifi- cation. When property in which several persons have a common interest cannot be fully and beneficially enjoyed in its existing con- dition and the parties interested therein cannot agree upon a scheme for the more advantageous use of the property, the law often pro- vides a way in which they may compel one another to submit to meas- ures necessary to secure its beneficial enjoyment, making just com- pensation to any of the proprietors whose control of the property or interest therein has been modified by the new arrangement, which compensation those of the proprietors who are benefitted are obliged to pay. Familiar examples of this class of legislation are the statutes providing for the repair of houses, mills and wharves owned by several parties, the employment of ships held on shares, the partition of land held in common, the construction and maintenance of party walls, the government of the proprietors of private ways and bridges and common fields and the drainage of swamps and meadows. "The exercise of this power in most instances is upon property held in common, but the principle is the same if applied to a tract of land affected by common necessities and interests, although divided into parcels held by individual owners in severally. When a tract of such land is divided into several parcels held l>y different owners and a general improvement of the whole cannot be effected without the harmonious co-operation of all the owners, the common nee- "Third edition, 1009, Sec. 283 and ff. EXCESS CONDEMNATION ETC. IN THE U. S. 147 is met and the common interest secured by the intervention of the state, and the individual rights of each owner are subjected to such modifications as seem most adapted to secure the best advantage of all. Those who are damaged are compensated by those who are benefitted. Land is actually taken and pecuniary impositions are levied although the use is not public, but neither the power of emi- nent domain nor the power of taxation is exercised. No land outside the tract affected by the common interest is taken or assessed, and it is settled that the compulsory improvement of the tract in the man- ner described is a valid exercise of the police power." ' The more or less technical arguments for and against the constitutionality of excess condemnation, zone condemna- tion and replotting have been considered at some length; and properly, too, for the people of the United States is a legalistic people, and these are the terms in which it thinks. The funda- mental question, however, is the need of these powers in this country. In the decision foreign usage and experience, invalu- able as they may be, are not conclusive. The question is one of the necessity and effectiveness of these remedies for us, and it is the people of this country who must decide it. In condenu nation proceedings public use is only a more technical name for public benefit; and in a democracy public policy is determined by public opinion which the courts sooner or later ratify and announce ; for, as the Supreme Court of the United States, in a passage widely quoted with approval, says of the police power and it is equally true of the power of eminent domain it 17 See in this connection also Ruling Case Law, Vol. 10 Eminent Domain, sees. 4, 47-53. In the case of O'Neill v. Learner, 239 U. S. 244 (1915), it should be noticed that resort was had to the power of eminent domain because the lands to be condemned "did not receive the flood waters of the creek but were situated . . outside the drainage district," and thus were not affected by the common interests and necessities, but condemned for the benefit of the tracts which were so affected in common. In the case of Houck v. Little River Drainage District, 239 U. S. 254 (1915), the court stated that the levies for the improvement were local assessments. This is perhaps due to the fact that the improvement was carried on by a quasi-public corporation, on a large scale ; and would not necessarily be true of replotting. If, however, the same results are obtained in this country by the same methods as abroad or those which are equally ad- vantageous and this the decisions would seem to allow the names of the powers under which, in the opinion of the courts, this is accom- plished, will, except to legal theorists, be immaterial. 148 THE LAW OF CITY PLANNING AND ZONING Powers of the legis- lature rela- tive to the taking of land, etc., for widen- ing or relo- cating high- ways, etc. Acquisi- tion of lands by the state. "extends to all the great public needs It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately nec- essary to the public welfare."* Note B No. i. MASSACHUSETTS, AMENDMENT TO CONSTITUTION* ARTICLE XXXIX Article ten of part one of the Constitution is hereby amended by adding to it the following words: The legislature may by special acts for the purpose of laying out, widening or relocating highways or streets, authorize the taking in fee by the commonwealth, or by a county, city or town, of more land and property than are needed for the actual construction of such high- way or street : Provided, however, that the land and property author- ized to be taken are specified in the act and are no more in extent than would be sufficient for suitable building lots on both sides of such highway or street, and after so much of the land or property has been appropriated for such highway or street as is needed there- for, may authorize the sale of the remainder for value with or with- out suitable restrictions. No. 2. OHIO, AMENDMENT TO CONSTITUTION"* ART. XVIII, Sec. 10. A municipality appropriating or otherwise acquiring property for public use may in furtherance of such public use appropriate or acquire an excess over that actually to be occupied by the improvement, and may sell such excess with such restrictions as shall be appropriate to preserve the improvement made. Bonds may be issued to supply the funds in whole or in part to pay for the excess property so appropriated or otherwise acquired, but said bonds shall be a lien only against the property so acquired for the improvement and excess, and they shall not be a liability of the municipality nor be included in any limitation of the bonded indebtedness of such municipality prescribed by law. No. j. WISCONSIN, AMENDMENT TO CONSTITUTION ** ART. XI, Sec. 33. The State or any of its cities may acquire by gift, purchase, or condemnation lands for establishing, laying out, widening, enlarging, extending, and maintaining memorial grounds, "Noble State Bank v. Haskell, 219 U. S. 104 at m (19"). "Adopted ton. "Adopted 1912. "Adopted 1912. EXCESS CONDEMNATION ETC. IN THE U. S. 149 streets, squares, parkways, boulevards, parks, playgrounds, sites for public buildings, and reservations in and about and along and leading to any or all of the same ; and after the establishment, layout, and completion of such improvements, may convey any such real estate thus acquired and not necessary for such improvements, with reserva- tions concerning the future use and occupation of such real estate, so as to protect such public works and improvements, and their envi- rons, and to preserve the view, appearance, light, air, and usefulness of such public works. No. 4. NEW YORK, AMENDMENT TO CONSTITUTION ART. I, Sec. 7. The legislature may authorize cities to take more Excess land and property than is needed for actual construction in the laying tion. en out, widening, extending or re-locating parks, public places, highways or streets; provided, however, that the additional land and property so authorized 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 appro- priated for such park, public place, highway or street as is needed therefor, the remainder may be sold or leased. No. 5. RHODE ISLAND, AMENDMENT TO CONSTITUTION M ART. XVII, Sec. I. The general assembly may authorize the acquiring or taking in fee by the state, or by any cities or towns, of more land and property than is needed for actual construction in the establishing, laying out, widening, extending or relocating of public highways, streets, places, parks and parkways : Provided, however, that the additional land and property so authorized to be acquired or taken shall be no more in extent than would be sufficient to form suitable building sites abutting on such public highway, street, place, park or parkways. After so much of the land and property has been appropriated for such public highway, street, place, park or parkway as is needed therefor, the remainder may be held and improved for any public purpose or purposes, or may be sold or leased for value with or without suitable restrictions, and in case of any such sale or lease the person or persons from whom such remainder was taken shall have the first right to purchase or lease the same upon such terms as the state or city or town is willing to sell or lease the .same. No. 6. NEW JERSEY STATUTE, 1870 Chapter CXVII. A Further Supplement to the act entitled "An Preamble. Act to Revise and Amend the Charter of the City of Newark," approved March eleventh, eighteen hundred and fifty-seven. "Adopted 1913. "Adopted 1916. ISO THE LAW OF CITY PLANNING AND ZONING WHEREAS, a certain portion of the City of Newark, formerly belonging to the Township of Clinton, and known as "Clinton Hill," has been heretofore laid out with narrow, short and irregular streets and passageways, by private owners of property without any munici- pal authority, and without reference to adjoining property, or to connecting streets, or to the public interest or convenience, which streets have been to some extent built upon, and thus the danger from fire by reason of their narrowness has been greatly increased; and whereas, it is very desirable to continue the policy which has been pursued for many years by the city authorities, of laying out streets and avenues upon a general plan, which shall secure, as far as pos- sible, uniformity, proper width, good ventilation, and reasonable security against fire; and whereas the commissioners appointed by the common council for that purpose, now engaged in the examina- tion of the streets in the section of the city above described, find it impracticable under existing laws to remedy the difficulties, or to secure the desirable results above mentioned; therefore Commit- i. BE IT ENACTED by the Senate and General Assembly of the authorized ^ tate f A r ^ztr Jersey, That the commissioners appointed by the corn- to purchase mon council of the city of Newark, pursuant to an act of the legisla- scribed ture f tms State, approved April first, eighteen hundred and sixty- land*, etc. nine, and entitled "A supplement to the act authorizing the appoint- ment of commissioners to lay out streets, avenues and squares in the city of Newark," approved March twentieth, eighteen hundred and fifty-seven, are hereby appointed commissioners with full power and authority to purchase at their discretion, all or any part of the lands, real estate, buildings and improvements within the limits described as follows, to wit: [Here follows a description of the tract.] and to make such compensation therefor to the owner or owners thereof, as they may deem reasonable, and to receive from the said owner or owners conveyances of the same to the city of Newark; in case no agreement for such purchase can be made with said owners, the said commissioners shall thereupon proceed to* (take said tract by eminent domain). *2. Authority to issue bonds for payment of land, etc. *3. Commissioners may vacate and lay out streets and highways. *4. Commissioners shall lay out the lands in lots and sell the same. *5. If proceeds are insufficient the deficit to be assessed on adja- cent land. *6. Surplus to be distributed to owners of the lands. *7. Commissioners shall take oath, etc. 8. And be it enacted. That this act shall take effect immediately. * Summarized. EXCESS CONDEMNATION ETC. IN THE U. S. 151 No. 7. OHIO STATUTE, 1904" SEC. 3677. Municipal corporations shall have special power to Appropria- appropriate, enter upon and hold, real estate within their corporate property, limits. Such power shall be exercised for the purposes, and in the - manner provided in this chapter. 12. For establishing esplanades, boulevards, parkways, park grounds, and public reservations in, around and leading to public buildings and for the purpose of reselling such land with reservations in the deeds of such resale as to the future use of such lands, so as to protect public buildings and their environs, and to preserve the view, appearance, light, air and usefulness of public grounds occu- pied by public buildings and esplanades and parkways leading thereto. No. 8. OREGON STATUTE, 1913 M SEC. 3837. Power granted certain cities to appropriate land for parks, playgrounds, etc. That it shall be lawful and the right is hereby conferred upon any incorporated city of this state having ten thousand inhabitants or more to purchase, acquire, take, use, enter upon and appropriate land and property for the purpose of public squares, parks, playgrounds, comfort stations, or enlarging any pub- lic square, park, playground or comfort station within the corporate limits of any such city whenever the municipal authorities thereof shall by ordinance determine thereon. SEC. 3838. Appropriation of land by certain cities in excess of what may be needed for public squares, etc. It shall be lawful for, and- the right is hereby conferred upon any incorporated city of this State having 10,000 or more inhabitants to purchase, acquire, take, use, enter upon and appropriate land and property in excess of what may be needed for any such public squares, parks, or playgrounds; provided, however, that in the ordinance providing therefor the municipal authorities thereof shall specify and describe the land authorized to be taken, purchased, acquired, used and appropriated, which land shall not embrace more than 200 feet beyond the boun- dary line of the property to be used for such public squares, parks, or playgrounds, m order to protect the same by the re-sale of such neighboring property with restrictions whenever the councils thereof shall by ordinance determine thereon ; provided, further, that in the said ordinance the councils thereof shall declare that the control of such neighboring property within 200 feet of the boundary lines of 84 Being an amendment to the Municipal Code of 1902, made by 97 v. 333, 1004; now Ohio General Code, 1910, sec. 3677, par. 12. "Ch. 269, sees. 1-4; now Laws 1920, sees. 3837-3840. 152 THE LAW OF CITY PLANNING AND ZONING such public squares, parks, or playgrounds, is reasonably necessary, in order to protect such public squares, parks or playgrounds, their environs, the preservation of the view, appearance, light, air, health or usefulness thereof. SEC. 3839. Sale of land appropriated in excess of what needed may be resold. That after so much of said land and property re- ferred to in Section 3838 has been appropriated, as is needed, for public squares, parks or playgrounds aforesaid, the municipal authorities of such city may by ordinance authorize the sale of the remainder of such land or property and impose sucl) restrictions in any deed or deeds of resale as may be deemed necessary or proper; provided, however, that such ordinance shall specify correctly and describe the land or property to be sold, and the restrictions in regard to the use thereof as will fully insure the protection of such public squares, parks or playgrounds, their environs, the preservation of the view, appearance, light, air, health or usefulness thereof, when- ever the councils thereof shall by ordinance determine thereon and which are to be imposed and inserted in such deed or deeds of resale. SEC. 3840. Such appropriations declared public use. That the taking, using, acquiring and appropriating of private property for any of the purposes herein specified, is hereby declared to be taking, using and appropriating such private property for public use; pro- vided, however, that the proceeds arising from the resale of any neighboring property taken in excess of what may be necessary for the actual construction, opening, widening, extending and laying out of any such public square, park or playground, as in this act pro- vided, shall be deposited in the treasury of said city and be used in the payment of the interest and as a sinking fund to retire any bond issues herein authorized. Any surplus arising from such transaction shall be turned over to and for the use of the park department of such city. No. p. VIRGINIA STATUTES, 1906-1916* SEC. 3065. To empower cities and towns to acquire property adjoining parks, monuments, etc., and to dispose of same. Any city or town of this Commonwealth may acquire by purchase, gift, or condemnation, property adjoining its parks, or plats on which its monuments are located, or other property used for public purposes, or in the vicinity of such parks, plats, or property, which is used and maintained in such a manner as to impair the beauty, usefulness or efficiency of such parks, plats, or public property, and may likewise acquire property adjacent to any street, the topography of which, from its proximity thereto, impairs the convenient use of such street, or renders impracticable, without extraordinary expense, the ini- *Now Code of 1919, sec. 3065. EXCESS CONDEMNATION ETC. IN THE U. S. 153 provemeni of the same, and the city or town so acquiring any such property may subsequently dispose of the property so acquired, mak- ing limitations as to the use thereof, which will protect the beauty, usefulness, efficiency or convenience of such parks, plats or property. And any city or town in this commonwealth proposing to open or widen a street by taking any part of a block or square in such a man- ner that the value of the property abutting the proposed street, would be injuriously affected unless the property on such block or square is re-platted and the property line re-adjusted, then and in that event the city or town at the same time it acquires the land for said street may, in its discretion also acquire by purchase, gift, condemnation or otherwise, all or any part of the property on such squares or blocks and may subsequently replat and dispose of the property so acquired, in whole or in parts, making such limitations as to the uses thereof as it may see fit. No. 10. MASSACHUSETTS ACT, PASSED UNDER CONSTITUTIONAL AMENDMENT OF 1911 w SEC. I. The city of Worcester is hereby authorized to take in fee for the purpose of widening Belmont street, so-called, in that city, the whole or parts of a strip of land, not exceeding one hundred and sixty feet in depth, from the southerly side of Belmont street between the point of intersection of the easterly line of Warden street with the southerly line of Belmont street easterly to the point of intersec- tion of the westerly line of Lake avenue with the southerly line of Belmont street. SEC. 2. After so much of the land or property as is taken by the city for the purpose of widening Belmont street on the southerly side thereof, in accordance with the provisions of section one, has been appropriated for such street as is needed therefor, the city may sell the remainder for value, with or without suitable restrictions. SEC. 3. This act shall take effect upon its passage. The city of Worcester may take land for widening Belmont street. Remainder of land may be sold. No. ii. NEW YORK ACT, PASSED UNDER CONSTITUTIONAL AMEND- MENT ADOPTED 1913 NEW YORK CITY CHARTER Authority of city to acquire land for streets, parks, etc., defini- tions; power to condemn excess lands. SEC. 970-a. 68 When used in this section or section nine hundred and seventy-b of the Greater New York charter, unless otherwise "1912, ch. 186. 68 Sec. 97O-a, and 970-b, were added by 1916, ch. 112; reenacting sub- stantially 1915, ch. 593, inadvertently repealed by 1915, ch. 606. 154 THE LAW OF CITY PLANNING AND ZONING expressed stated, or unless the context or subject-matter otherwise requires, the word "improvement" shall be construed as synonymous with the phrase "laying out, widening, extending or relocating a park, public place, highway or street," or with the phrase "acquisi- tion of title to real property required for laying out, widening, extend- ing or relocating a park, public place, highway or street." The term "excess lands," or the term "additional lands," or the term "addi- tional real property" shall each be construed as synonymous with the phrase "real property in addition (or additional) to the real property needed (or required) for laying out, widening, extending or relocat- ing a park, public place, highway or street." "The board" shall be construed as synonymous with the "board of estimate and apportion- ment." The city of New York in acquiring real property for any improvement may acquire more real property than is needed for the actual construction of the improvement. The board of estimate and apportionment may authorize the city of New York to acquire addi- tional real property in connection with any improvement, and direct that the same be acquired with the real property to be acquired for the improvement ; provided that such additional real property shall be not more than sufficient to form suitable building sites abutting on the improvement. The title which the city of New York shall acquire to additional real property shall in every case be the fee simple abso- lute. Additional real property shall be acquired by the city in con- nection with a street improvement only when the title acquired for the improvement shall be in fee. The acquisition of title to addi- tional real property in connection with an improvement shall be authorized by the board in the same manner and at the same time as the acquisition of title to the real property required for the improve- ment is authorized. When the board shall have authorized the acqui- sition of title to additional real property in connection with an im- provement, title to such additional real property shall be acquired by the city in the manner and according to the procedure (except in such respects as herein set forth) provided for the acquisition of title to the real property required for the improvement and in the same proceeding in which title to the real property required for the improvement shall be acquired. When the board shall authorize tin- acquisition of additional real property in connection with any im- provement, it shall cause to be prepared and shall adopt a map show- ing the real property to be acquired for the improvement and such additional real property in connection with the real property to be acquired for the improvement, and such map, when approved by the mayor, shall be certified by the secretary of the board and filed, prior to the application to condemn the same, as follows : One copy thereof in the office in which conveyances of real property are required by law to be recorded in each county in which the real property or any part thereof shown on such map is situated; one copy thereof in the EXCESS CONDEMNATION ETC. IN THE U. S. 155 office of the corporation counsel; one copy thereof in the office of the president of each borough in which the real property or any part thereof shown on such map is situated, and one copy thereof in the office of the board. When the board shall have authorized the acqui- sition of additional real property in connection with any improve- ment, such additional real property shall be separately described in the notice of application to condemn by the supreme court without a jury or in the notice of application for the appointment of com- missioners of estimate, as the case may be, and in the petition pre- sented on any such application, and separately shown on the rule map attached to the petition and on the damage map in the proceeding, and said notice and petition shall state what part of the real property to be condemned is required for the improvement, and what part thereof is to be acquired as additional real property. The acquisi- tion of such additional real property, when authorized by the board, shall be deemed to be for a public purpose. In a proceeding in which additional real property shall be acquired, the board, by a three-fourths vote, may direct that on the date of the entry of the order granting the application to condemn by the supreme court with- out a jury, or on the date of the filing of the oaths of the commis- sioners appointed by the court, as the case may be, or on a date after either, specified in the resolution of the board, the title to the whole but not less than the whole of such additional real property to be acquired in the proceeding shall vest in the city of New York, pro- vided that such resolution shall also direct the vesting in said city simultaneously of the title to all of the real property being acquired in the proceeding for the improvement; except that in a proceeding involving the acquisition of title to additional real property in con- nection with the acquisition of title to real property required for a street, highway or public place, the board shall not be required to vest, at one time, the title to all the additional real property to be acquired, provided, however, that in vesting title to parts of said addi- tional real property every such part shall be of at least a block length along the improvement, and that no fractional portion of a block shall be contained in any such part, and provided that said board shall also direct that all the real property required for the street, highway or public place in such block or blocks shall vest in the city simultaneously. Upon the date of the entry of such order granting the application to condemn or upon the date of the filing of such oaths, as the case may be, or on such date after either, as may be specified by said board, the city of New York shall be and become seized in fee simple absolute to such additional real property. In all other cases, except as herein otherwise provided, title in fee simple absolute to such additional real property as may be acquired in any such proceeding shall vest in the city of New York upon the filing of the final decree of the court, or upon the entry of the order of the 156 THE LAW OF CITY PLANNING AND ZONING court confirming the report of the commissioners of estimate, as the case may be, as to such additional real property ; and the reversal on appeal of the final decree or of the order confirming the report, as the case may be, or of any part of either, shall not operate to divest the city of title to any of the real property so acquired. In a pro- ceeding in which excess lands shall be acquired, the board shall not have power to direct the vesting of title in the city to the real prop- erty required for the improvement without also directing the vesting of title in the city simultaneously to the excess lands being acquired in the proceeding in connection with the improvement, except that the board may, in the manner in this section provided, direct that title to the real property required for a street, highway or public place shall vest in the city of New York in any block of such street, highway or public place abutting which no excess lands are taken. In any proceeding in which excess lands shall be acquired, when title to any part less than the whole of the real property required for the street, highway or public place in any one block thereof, between legally existing public streets, shall vest in said city upon and by virtue of the entry of the decree of the court finally determining the awards for damages therefor, or on the date of the entry of the order confirming the report of the commissioners of estimate in relation thereto, as the case may be, title to the remainder of the real prop- erty required for the street, highway or public place in the same block and title to the additional lands to be acquired in the proceed- ing abutting on the street, highway or public place in the same block, shall vest in said city simultaneously, and the reversal on appeal of the final decree of the court or of the order confirming the report of commissioners, as the case may be, or of any part of either shall not operate to divest the city of title to any of the real property so acquired for the street, highway or public place in the same block or to the additional lands abutting thereon. Upon the vesting of title in the city of New York, as in this section provided, to any such addi- tional lands and to lands required for the improvement, the city of New York, or any person acting under its authority, may immedi- ately, or at any time thereafter, take possession of the additional lands so vested and of the real property required for the improve- ment so vested, or any part or parts thereof, without any suit or proceeding at law for that purpose. In a proceeding in which addi- tional lands shall have been authorized to be acquired in connection with the improvement, an owner may not convey to the city of New York any part of the real property to be acquired for the improve- ment, except upon the approval of the board of estimate and appor- tionment and of the commissioners of the sinking fund. After the institution of a proceeding pursuant to this title, the board of esti- mate and apportionment may amend the proceeding by authorizing the acquisition of lands additional to those required for the improve- EXCESS CONDEMNATION ETC. IN THE U. S. 157 ment, provided that title shall not have vested in the city of New York to any parcel of real property to be acquired for the improve- ment within the block between legally existing public streets, embrac- ing the additional lands sought to be acquired. The said board may also amend any proceeding so as to exclude any or all additional lands being acquired in the proceeding, provided title to such addi- tional lands shall not have vested in the city. The amendment shall be made in the manner provided in this title, and thereafter the pro- ceeding shall be conducted in the same manner as if the additional lands included or excluded by the amendment had been included or had not been included in the proceeding at the time of the institution thereof. In case title to the real property required for the improve- ment and to the additional lands shall vest in the city prior to the entry of the final decree or order confirming the report of the com- missioners, as the case may be, interest on the entire amount due to the owner for the real property acquired for the improvement, or for the excess lands, or for both, from the date of the vesting of title thereto to the date of the final decree or to the date of the report of the commissioners of estimate, as the case may be, shall be awarded as a part of such owner's compensation. All of the provisions of this title relative to the payment by the comptroller of sums awarded as damages and interest thereon, and to the advance payment on account of such damages, and relative to the assignment or pledge of awards, shall apply to awards of damages for the taking of additional lands. After title to the real property required for the improvement and to the additional lands shall have vested in the city, the additional lands may be either held and used by the city, or sold or leased by it in the manner provided by the Greater New York charter. The board of estimate and apportionment may provide that such additional lands shall' be sold or leased subject to such restrictions, covenants or con- ditions as to location of buildings with reference to the real property acquired for the improvement, or the height of buildings or struc- tures, or the character of construction and architecture thereof, or such other covenants, conditions or restrictions as it may deem proper ; and such additional lands shall be sold or leased subject to such re- strictions, covenants or conditions, if any, as the board of estimate and apportionment may have prescribed, which shall be set forth in the instrument of conveyance or lease. Authority to Assess and the Ascertainment of the Amount Properly Assessable in a Proceeding in Which Additional Lands May Be Acquired SEC. 970-b. 6 * In every proceeding in which lands additional to those required for the improvement shall be acquired, the board may "See p. 153, note 68. 158 THE LAW OF CITY PLANNING AND ZONING determine whether any, and if any, what portion of the damage due to the acquisition of title to the real property required for the im- provement, shall be borne and paid by the city of New York; and the whole or the remainder of such damages shall be assessed upon the real property deemed to be benefited by the improvement in the manner and according to the procedure for levying assessments for benefit in proceedings had under this title. The board may also determine whether any, and if any, what portion of the costs and expenses of proceeding, including the expenses of the bureau of street openings in the law department, incurred by reason of such proceeding, shall be borne and paid by the city of New York, and the whole or the remainder of such costs and expenses, including the expenses of the bureau of street openings, shall be assessed upon the real property deemed to be benefited by the improvement. Where part of a parcel of real property shall be acquired for an improve- ment, and the remainder or a portion of the remainder of such parcel in the same ownership shall be acquired in the same proceeding as excess lands, the portion of the damages due to the acquisition of the real property required for the improvement, shall be determined and stated separately from the entire damage due to each such owner. In determining the damages due to the acquisition of that portion of such parcel, which is required for the improvement (which shall be the portion thereof properly assessable), the same rule shall be applied as would govern the determination of damages for the taking of the real property required for the improvement, in case no excess lands were acquired. Where part of a parcel of real property shall he acquired for the improvement, and the remainder or a portion of the remainder thereof in the same ownership shall be acquired in the same proceeding, as excess lands, the damages due to the acquisi- tion of title to the real property required for the improvement (which shall constitute the portion of the owner's total damages as to such parcel, on account of the proceeding, which shall be properly asses- sable), shall, in every case, equal the amount which would be awarded to such owner in case only that part of his real property, which shall be required for the improvement, were acquired. The aggregate of damages due to the acquisition of the real property required for the improvement shall be determined by the court or other tribunal authorized to determine the compensation to be paid to the owners, and when so determined, as aforesaid, shall, if the board of estimate and apportionment so direct, be assessed by the court or other tribunal authorized to levy the assessment for the improvement. The real property acquired by the city in addition to that required for the improvement shall IK- subject to assessment for benefit due to the improvement, and shall bear its proper share of the cost and expense of the proceeding, which may be levied and collected with the taxes upon the real property in one or more entire EXCESS CONDEMNATION ETC. IN THE U. S. 159 boroughs. The assessment, which shall be levied in any proceeding, upon the real property acquired in addition to that required for the improvement, shall not in the case of any parcel assessed exceed one- half the fair value thereof. Interest from the date of the vesting of title to the date of the final decree of the court or to the date of the final report of the commissioners, as the case may be, on the sum or sums determined as damages due to the acquisition of the real prop- erty required for the improvement, as hereinbefore provided, shall be included in and stated as a part of such damages due to the acqui- sition of title to the real property required for the improvement. Nothing in this section contained shall be construed as authorizing the awarding to an owner, part of whose real property is taken for the improvement, and the remainder or a portion of the remainder of whose real property is taken as additional lands, any greater amount of compensation than such owner shall be entitled to, by reason of the taking of his real property for the improvement and as additional lands, considered together as one parcel. The provi- sions of section nine hundred and seventy-a and of this section shall be construed as supplementing and extending the effect of the pro- visions of the other sections of this title so as to provide for the acquisition of title to additional lands in connection with an improve- ment and for the levying of assessments for benefit in such proceed- ings and nothing in section nine hundred and seventy-a or in this section contained shall be construed as limiting the effect of the pro- visions of the other sections of this title in their application to the acquisition of title to real property required for an improvement when acquired in a proceeding in which additional lands shall or shall not be acquired or to the levying of assessments for benefit in such pro- ceedings, except as the provisions of the other sections of this title are" in section nine hundred and seventy-a and in this section expressly so limited in their application. No. 12. RHODE ISLAND, ACT PASSED UNDER CONSTITUTIONAL AMENDMENT ADOPTED 1916 70 SEC. i. Whenever any public highway in the city of Providence City of shall be laid out . . . the city of Providence may acquire or take in may^cquf fee more land and property than is needed for actual construction in m re Iand the establishing, laying out, widening, extending or relocating of erty than such public highway or street : Provided, however, that the additional needed y for land and property so authorized to be acquired or taken shall be no highway construe* more in extent than would be sufficient to form suitable building sites tion and abutting on such public highway or street ; and provided, further, that |^,t ve " the provisions of this act shall apply only in the particular instances when, in which the city council of said city shall by special vote so provide. "Being 1917, ch. 1560. i6o THE LAW OF CITY PLANNING AND ZONING Additional land as taken, but not used, how dis- posed of. *SEC. 2-3. Procedural. SEC. 4. After so much of the land and property has been appro- priated for such public highway or street as is needed therefor, the additional land and property so taken in fee may be held and improved by said city of Providence for any public purpose or purposes, or, by resolution of said city council, may be sold or leased for value with or without suitable restrictions, and in case of any such sale or lease the person or persons from whom such additional land and property was taken shall have the first right to purchase or lease the same upon such terms and conditions as said city council is willing to sell or lease the same. SEC. 5. This act shall take effect upon its passage. * Summarized. CHAPTER IV PUBLIC UTILITIES THE WATER FRONT Definitions. A public utility is, in law, a service rendered the general public of such a nature and importance as to con- stitute it a common necessity or general convenience, the pro- vision of which cannot with safety be left to the unrestrained enterprise of private individuals. The power to supply such services is therefore granted individuals substantially under conditions of regulated monopoly, or, if need be, they are per- formed by the government itself. In practice the expression is used to denote a service, such as the furnishing of water, gas, electricity, heat, power, transportation, etc. In the decision of the question which services shall be held to be public utilities, historical considerations have great influence; but of recent years present conditions have caused additions to the list of such utilities to be made. Private corporations rendering such services are often referred to as public utility corporations, and, by reason of the public service performed by them, are considered quasi-public and granted certain public powers, such as eminent domain. Transportation. Most, if not all, of the public utilities have their place in the city plan. For this reason the granting of the franchises to public utility corporations and their regula- tion should be carefully considered. Of most importance among these utilities indeed probably the greatest single influ- ence of any kind on the city plan is transportation, the only utility that must precede the substantial growth in population of any locality, important as it is that the others should follow as speedily as possible. The planning problems with relation to transportation and transportation corporations are typical 161 162 THE LAW OF CITY PLANNING AND ZONING of those arising with regard to these other utilities, and will be treated here as illustrative of them all. 1 Transportation makes and changes the character of streets and districts and determines the distribution of population, bringing, if efficient, distant parts of the city, for all practical purposes, near the center, or if inefficient, keeping nearby parts in effect at a distance from that center. Not only routes, amount, speed and comfort of service, but rates of fare, make the virtual city plan. It has always been assumed that only a small proportion of the population of a city will live be- yond the range of a five-cent fare. Expensive subways are profitable only where there are multiple dwellings, and soon cause the private house along their route to be replaced by the tenement. In these and countless other ways which are well recognized by city planners and transport experts, trans- portation builds the city. If uncontrolled, the planning of con- struction for this purpose is done by many irresponsible, con- flicting agencies in their own interest. If the public interest is to prevail, the public must regulate and control these agencies, or itself undertake to perform the services they render. Methods of Public Control. The public authorities may exercise control over public service corporations in several ways: first, by the terms of the franchises granted the pro- moters, such as the right to be a public service corporation, the conditions in accordance with which that corporation is allowed to use the public streets, and the concessions demanded of the corporation in return for receiving additional rights; second, by the amendment of the charter, if the right to amend it is reserved; third, by regulating rates and service, under the police power, which the public may do in spite of the fact that the charter is a contract and even if there is no reservation of the right of amendment, alteration, or repeal; fourth, by granting a charter to a competing corporation, by itself com- * See in this connection "Unification of Railroad Lines and Service in Cities," being a statement of principles drawn up by a Committee of the National Conference on City Planning for presentation tn the con- ference held April, 1920; published in its proceedings, p. 56 and in the National Municipal Review, June, 1920, p. 351, under the title, "Rail- roads in a Sound City Plan." PUBLIC UTILITIES THE WATER FRONT 163 peting, or by threatening to take one or the other of these courses; fifth, by condemning the rights and property of the corporation and itself furnishing the utility. The Power to Grant and Change the Charter. The charter giving individuals the right to be a corporation is granted by the state. Transportation enterprises, like most other utilities, by reason of the amount of capital involved and the liabilities incurred, are virtually forced to incorporate and thus subject themselves to a greater degree of public control than individuals. The charter also confers upon the corpora- tion the privilege of engaging in the business of furnishing a particular utility in a given locality, and includes the conditions in accordance with which the business must be transacted, states the duration of the franchise, and the terms, if any, under which the public may take over the rights and property of the corporation. The grant of additional privileges also comes from the state, and in return for them any demands which seem necessary may be made upon the corporation. Like all large enterprises, transportation companies, with changing business conditions, are constantly in need of legislative assistance in the way of new authority. Thus they may need to take addi- tional property by eminent domain, change their motive power, or their routes. The public may make these favors conditional on extensions or improvements of service. It is the state also which possesses the power to amend the charter, if such power exists. A charter, under our law, has been held to be a con- tract the provisions of which are subject to the police power but cannot be altered, nor can the charter be revoked, unless these rights are reserved. This was early decided by the Su- preme Court of the United States in the famous Dartmouth College case. 2 The decision is now generally regarded as un- fortunate and its effect has been in large part counteracted by statutes, now universal, making all charters subsequently is- sued subject to alteration, amendment and repeal. 3 These 2 Dartmouth College v. Woodward, 4 Wheaton (U. S.) 518 (1819). 3 The device was suggested in one of the opinions in the case. The statutes often make the acceptance of any amendment of the charter by the corporation an agreement that the charter itself shall thereafter be subject to amendment, alteration and repeal. Amendments are also subject to these rights. 164 THE LAW OF CITY PLANNING AND ZONING statutes do not leave the corporation without protection. If the charter is repealed, the corporation cannot be deprived of its property ; and furthermore the legislature is only authorized by amendment "to make any alteration or amendment of a charter granted subject to it, which will not defeat or sub- stantially impair the object of the grant, or any rights vested under it, and which the legislature may deem necessary to secure either that object or any public right." 4 Route and Location. The city is generally given by the state the power to prescribe the route which the corporation must follow in traversing the city, and the locations which the corporation must adopt in the streets through which it goes. This power enables the city to make the utility conform to and aid the planning of the city in the general interest. This route and these locations, the city may under its police power require the corporation to change at its own expense, except as the state has granted the corporation a specific route or specific locations; and even then minor changes may be enforced. Rates and Facilities. As a public carrier the transporta- tion company in the city is not free to earn for its stockholders any dividend it can by charging any fare it is able to collect. In the absence of a contract with the authorities granting it bet- ter terms, the company is entitled at most to a reasonable return on the money it has actually invested. Moreover, having de- voted its property to a public use, it has thereby obligated itself to render a service at rates which shall not exceed the reasonable value of that service, even if by misfortune or bad judgment it cannot, in any particular case, earn its full return. Nor is it the judge of what facilities it shall offer. These fa- cilities must in every way be adequate. The company and its stockholders are protected, however, by this doctrine of reason- ableness, and by constitutional provisions against taking prop- erty without compensation ; for the making of unreasonable requirements under which the company would not be allowed to earn a fair return is in effect a taking. N. Y. and N. E. R. R. Co. v. Bristol, 151 U. S. 556 (1894). See generally, Cook, Corporations (7th ed.. 1913), Vol. 2, sec. 501 ; Thomp- son, Corporations (2d ed., supplement), sec. 414. PUBLIC UTILITIES THE WATER FRONT 165 The problem most difficult, perhaps, of settlement with fairness both to the public and to the transportation companies, is the rate of fare that may be charged. In this country a flat rate for the city and its suburbs has been considered more for the public interest than zones of fare, so common abroad, on the ground that the zone fare tended to keep the people in the congested parts of the city, while a flat rate encouraged them to live in the suburbs under more healthful conditions. 5 The five cent fare so usual here has also been considered important to the public. The recent advance in costs of all kinds has led the companies to demand, and many communities to concede, an increase in fares. This increase has in some cases taken the form of an addition to the flat rate, in others, of zone fares. In every instance the increases have greatly decreased travel, especially short hauls, by which the companies profit most. The result has been a curtailment of facilities, and a further increase of fare which the remaining passengers are forced to meet. Whether in time travel will adjust itself to the new rates, or be permanently lessened, to the great disadvantage of the com- munity, it is too early to decide. It has been suggested that a low rate for a short trip in non rush hours would under present conditions benefit both the communities and the public ; but no sufficient investigation of this possibility has ever been made. A low rate, short distance zone has also been suggested. An- other device for securing regular additional traffic is the monthly ticket. A method of fixing rates formerly suggested by public authorities as a means of lowering fares thought by them to be unjustly high, and of late urged by the companies as a means of raising fares now that, as they claim, they are un- 5 It is claimed, however, in a recent article, "Zone Fares for Street Railways" by Walter Jackson in the National Municipal Review for November, 1920, p. 705, that a zone fare lessens congestion by tending to build up local centers. The writer very properly points out the fact that density of population is dependent upon many factors, of which methods of regulating street railway fares is only one. It should be noted in this connection that the zone fare is advocated _by the street railway companies not as an improved method of charging the same fare as heretofore but as a means of increasing fares; and that whether necessary and just or not, such increases are sure to have many results besides the possible building up of local centers. 166 THE LAW OF CITY PLANNING AND ZONING justly low, is called service at cost. By it the investment of the company is fixed at a given value and the company guar- anteed in future the cost of the service and a given return on that value. Rates, therefore, would fluctuate from time to time as costs fluctuated, but dividends would remain fixed. Service at cost agreements are in many forms, with reserves to meet and equalize fluctuations in costs thought to be tem- porary and thus avoid frequent changes of the fare, with in- creased returns to the company as a bonus for good manage- ment, in some cases with dividends varying with the rate of fare, etc. The difficulties in making a contract and a valuation under it just to both parties, which shall ensure good service and at the same time economical and progressive management, are great. It should not be forgotten that in such contracts the capital becomes more or less a fixed basis for dividends guar- anteed by the public against the contingencies that beset other enterprises ; and that unless the public secures an equivalent ad- vantage it should not enter into an agreement which may fetter it so seriously for many years to come. Rates and service are so dependent upon conditions subject to change that, so far as other considerations permit, they should be left for regulation from time to time instead of being fixed by charter or long term contract. 7 Granting Charter to Competing Corporation. The granting of charters to competing corporations, when dissatis- fied with the rates or services of those in existence is a crude and wasteful method of administering public utilities; for both the old and the new corporation must be allowed to earn a fair *See on the subject of service at cost the Report of the Federal Electric Railways Commission to the President, August, 1920; Govern- ment Printing Office, Washington, 1920; aN<> Flexible Fares or Serv- ice at Cost as Applied to the New York Transit Lines," a report of the City Club of New York, January, 1921. *For further information the reader is referred to two pamphlets by Dr. Dclos F. Wilcox, the first entitled "Solving the Traction I'rol>- lem," being an address delivered at the New York State Confi-rence of Mayors, June 12, 1919, and the second called "The Transit Problems of New York City," November, 1919, in which Dr. Wilcox had the ad- vantage of the criticism of a group of representative men. PUBLIC UTILITIES THE WATER FRONT 167 return on their investment, 8 and the public pays for the dupli- cation, which usually is not so convenient to the public as a single system. The same evils result if the municipality itself constructs and operates the duplicate system or leases it to others to operate. The losses are, as a rule, disguised by the fact that they are paid out of general taxation, but they never- theless still exist. Public Ownership and Management. If, finally, the city is not satisfied with its regulation of the semi-private cor- poration, it may wholly or partly assume its task. If the road is already built the city may, under its power of eminent do- main, take the franchises and property, real and personal, of the transportation company, either itself running the road or leasing it under stringent operating conditions ; or the city may itself build a competing road; or, if the road is not yet built, the city may itself in the first instance build it, constructing it as a public highway, assessing its cost against the land owners benefited, if desired, and operating it or leasing it for opera- tion afterwards. The Franchise of the Private Company. In spite of the possibilities of the regulation of franchises already granted, the safest course is properly to limit and define the franchises, in the public interest, at the time they are given, and to secure to the authorities the right to regain these franchises on favor- able terms. There has been much time and study given to the deter- mination of the elements of a model franchise. In discussing this subject we will still continue to take transportation as an example of utilities generally. 9 8 The certificate of public convenience and necessity, usually re- quired before a franchise will be granted, sometimes nowadays requires the new company to show that it can drive its competitor out of the field at a rate based upon a fair return on its own investment. * See Delos F. Wilcox, "Municipal Franchises," McGraw-Hill Book Co., New York Ciy, 1910 and 1911; the chapter on the same subject by the same author, in the Digest of Short Ballot Charters, by Gilbert- son; A Model City Charter and Municipal Home Rule as prepared by the Committee on Municipal Program of the National Municipal League, final ed., March 15, 1916, p. 46 ; the Report of the Committee on Fran- chises of the National Municipal League, to the Conference at Toronto, 168 THE LAW OF CITY PLANNING AND ZONING The street railway franchise, like most if not all public serv- ice franchises, if granted to a public service corporation at all, should be monopolistic. With proper regulations and limita- tions, this method insures the most effective system with the lowest rates. In so far as it is too late to adopt this policy, the joint use, with compensation, of tracks in the central parts of the city and at other strategic points should be secured, so that the growth of outlying systems, which to be useful and self- supporting must reach these parts of the city, may be obtained, and wasteful and inconvenient duplication of facilities be avoided. If competition must be allowed, transfers without charge, so far as possible, should be insisted on, so that in its travel the public may obtain to some extent the advantages of one system. All grants should be made, not necessarily for the same period, but rather, if granted at different times, to expire at the same date. In this way a better system may be planned and secured when the rights are regranted. No charge should be made to the companies for the rights granted them, nor any attempt made, by extraordinary taxation or otherwise, to obtain revenue from them; for the companies must reimburse them- selves for such outlays. A better method is to require the com- panies to furnish adequate service at the lowest practicable rates. Public utilities are the life blood of the community, and it is better policy to obtain revenue from almost any other source. The grant of the right to lay tracks in particular streets should be subject to the consent of a percentage of the abutters, but an appeal to the courts or a public service commission should be provided for, on whose certificate of public necessity and convenience permits to lay the tracks may be granted. In determining whether a fair rate of profit has been earned, ex- tensions which, at least in the beginning, are likely to be less profitable than the rest of the system should not be considered separately, but as a part of the entire system. November, 1913, in the Annals of the Academy of Political and Social Science, Vol. 57 of January, 1915, p. 8; a Supplement, issued April, 1920, of the National Municipal Review entitled "A Correct Policy toward the Street Railway Problem" ; and generally the annals, the reports of the Proceedings of the League, and the Volumes of the National Mu- nicipal Review. PUBLIC UTILITIES THE WATER FRONT 169 Example of New York City. New York City in the construction of its subways furnishes an example of good and bad practice in bestowing franchises of this nature. In grant- ing the rights for the construction of the original subway the city allowed the company to build a road up the east side of the narrow island of Manhattan, across it at 42nd Street, and up on the west side. This route was the most profitable route for the old company, but gave it the power to prevent the con- struction of any new system on reasonable terms either on the east or the west side of the city; and besides it stimulated growth in the most concentrated parts of the city and thus in- creased congestion. The old subway also confirmed the lines of growth in a northerly and southerly direction and narrowed instead of broadening the city. In granting the franchises for the new subway these mis- takes were in a measure avoided, but at great expense to the city on account of the power which its strategic position gave the old company. The new subways extend into the undevel- oped suburbs of the city in nearly all directions, thus at last making New York a round city. Another mistake made in the construction of the old sub- way was the failure to coordinate it with other necessary city planning measures. Transportation was advocated at that time as a sufficient cure in itself for the intense congestion of the lower east side. Without the proper regulation of future building, increased transportation facilities proved to be, as always, little more than a palliative. It did not relieve materi- ally the overcrowding of the lower east side, and it built up a congestion almost as bad in the Bronx. In the new subway construction the city has done better. The city was not able to see its city problems as a whole, but at least, after its partial solution of the problem of transportation, it proceeded to pass its well-known zoning regulation of building, so that the city certainly will not lose the advantages of its increased transporta- tion facilities to anything like the same extent that it did before. 10 Recapture. If the city wishes to adopt the policy of mu- 10 For more on this subject, see p. 28. 170 THE LAW OF CITY PLANNING AND ZONING nicipal ownership, the right of recapture of franchises becomes most important; and in any event it is a wise policy to secure this right as a protection against unsatisfactory private man- agement of utilities and as a method of spurring the semi- private corporations administering them to good service. The right under eminent domain to take utility franchises and plant is an insufficient protection against inefficiency and exces- sive charges for many reasons, chief among which is the fact that the companies will claim that the franchise itself is prop- erty for which the city must pay a price which increases with the growth of the city. There are many methods of securing to the city the right of recapture. The franchise may be granted for a fixed term, with the right to take it and the plant and equipment at a fixed price, or at a valuation made by some disinterested body; or the corporation may be required to surrender the franchise and plant to the city at the end of the term without further com- pensation. Little perhaps is gained by such a stipulation; for the public must in some form pay the corporation a reasonable return for its services, capital invested, and risks incurred; and the equipment, so necessary to the city's prosperity and well- being, is inevitably allowed to deteriorate more and more as the end of the period approaches. A better plan perhaps is to grant a franchise terminable at the option of the city at any time, or after the expiration of a very short period, with com- pensation at a fixed price or at a valuation. This is the method that is least likely, also, to deter the corporation from making necessary extensions. The Water Front. Cities situated on navigable water are privileged to have communication by water as well as by land. The use of the water for this purpose is dependent upon the ownership of land giving access to the water. For this reason the city's water front is unique. The ownership of land bordering upon a non-navigable stream or body of still water carries with it ownership of the land under water to the center. If, however, the water is navigable, the law as to the ownership of the bank or shore, and the land under water, differs in the different states in this PUBLIC UTILITIES THE WATER FRONT 171 country; in some the title being in the owner of the upland sub- ject to the public right of navigation, in others that title being, to a greater or less extent, in the state. Almost universally, however, the owner of this upland has certain rights in this navigable water other than those belonging to the public. The most important of these rights is that of access, including the right to build wharves and piers for exclusive use, in such a way as not to interfere with public navigation, over the sub- merged land to deep water. In England, where there are no such large rivers and lakes as with us, only water where the tide ebbs and flows is legally held to be navigable ; but with us the legal test is navigability in fact. 11 Bulkhead Lines. In planning a harbor it is necessary to fix the inter-relation of navigable water and the land ap- proaches to it. This is done by fixing bulkhead lines, up to which ships may go and beyond which solid filling from the land into the water shall not be carried ; and pier head lines, beyond which nothing shall extend from the land into the water. In planning a harbor and the city which it serves, it is often neces- sary to provide for the possibility of land transportation by bridges across navigable waters, thus obstructing them some- what. In all civilized countries neither of these two things can be done without public authority. The Noncommercial Water Front Recapture. The water front, indispensable for commerce, is of great use to a city for boulevards, parks, and beaches, giving health and pleasure to be obtained in no other way. Cities should realize that land on the water front is invaluable, and if any of it must be parted with, should make the transfer for a limited period, such as 25 or at most 50 years ; with the right of recap- ture on reasonable terms within a much shorter period. The limitation of grants of land under water, like the limitation n ln some states the owner of the upland has a preferred right to purchase tide lands from the state; 29 Cyc. of Law and Procedure, 358, and note 43. The state, in most, jurisdictions, has no right without com- pensation to deprive the owner of the upland of access; Farnham, Law of Waters, Vol. i, p. 302 and ff. The establishment of a bulkhead line as a rule confers upon the owner of the upland authority to fill to this line; Gould, Law of Waters (3d ed.) sec. 138. 172 THE LAW OF CITY PLANNING AND ZONING of franchise grants, is a necessary part of the conservation of property essential to the public welfare. Any other course is a failure to guard a precious heritage for those who come after us. 12 "Under the charter of the City of New York (sec. 71) "The rights of the city in and to its water front, ferries, wharf property, land under water, public landings, wharves, docks, streets, avenues, parks, and all other public places are hereby declared to be inalienable." The legisla- ture of the state, however, may pass statutes for the alienation of such rights ; and the city may lease marginal property, and land under water for the limited periods (Charter, sees. 83-84). In 1917, the Citizens Union of New York City introduced into the state legislature of that year a bill (Senate Introductory No. 907, Crom- well; Assembly Introductory No. 1264, Youker) requiring the state to make all future grants of land under water on condition that they may be retaken for any public purpose on repayment of "the consideration paid by the original grantee for the grant, together with an allowance for improvements." The Citizens Union, in their memorandum with regard to the bill, says : "The first instance of the use of a recapture clause in this state was in 1002, when the late Mayor of New York, Seth Low, prevailed upon the State Land Commission to insert it in all grants by the state. There were but two or three exceptions to this rule up to 1914. . . ." This bill did not pass, but the State and City of New York still adhere to the practice of inserting a recapture clause in grants of land under water. See on this subject: New York State, Attorney General, Grants of Land under Water (J. B. Lyon Co., Albany, 1913) ; New York State, Report of Attorney General for 1920 (Legislative Docu- ment, 1921, No. 53; J. B. Lyon Co., Albany, 1921), pp. 303, 333, 349 ff. The recapture clause inserted in grants of land under water by the City of New York (to be found on p. 338 of that report) is as follows: "Upon the express condition that if the City of New York shall at any time hereafter acquire said premises and 'improvements,' or a part or portion thereof, by condemnation or otherwise, the liability of the City of New York shall be limited to the amount paid by said patentee to the State for this patent, or a proportionate part thereof, together with the expenses necessarily incurred by the patentee for the acquiring of this patent, which are hereby fixed at the sum of $350, and also the value of the 'improvements' on said premises, or the proportionate part thereof which may be so acquired. The value of such 'improvements' if all are so acquired, or such proportionate part of the amount paid by said patentee for this patent and of the value of such 'improvements' on a portion of such lands which may be so acquired by the City of New York, and all damages, if any, to the remainder of such 'improve- ments' which may not be so acquired, to be paid by the City of New York, may be determined in any proceeding brought by or on behalf of the City of New York for such acquisition." CHAPTER V STREETSSETBACKS TRAFFIC REGULATIONS Streets. The previous consideration of various details in the planning of a city, and the law applicable to these details, has involved the discussion of many legal problems relating to the construction of specific public features of the city. There still remain a few of these public features with relation to which the law requires further statement, the first of which to be so considered being streets. The streets of a city are constructed with the double pur- pose of serving the general public and the abutter. The public is entitled to use them as avenues of communication. The abutter is entitled to obtain from the street, light, air, view and access for his property. The city cannot without compensation deprive him of these advantages, or diminish them, except to aid communication. 1 Taking Easement Versus Taking Fee. In street con- struction it was formerly the custom for the city to take merely the amount of interest in the land to be so used that was abso- lutely necessary for the purpose. This interest is an easement to use the land for street purposes. The law does not restrict the city in its taking to the limited right that is essential for street use. If for any reason it seems expedient, the city may be given the right to take full ownership or "fee"; for, as has already been pointed out, the manner and extent of the exer- cise of a power for a proper purpose is for the legislature in its 1 McQuillin, Munic. Corps., Vol. Ill, p. 2848; see also Elliott on Roads and Streets, sec. 26, notes 36, 39. In some jurisdictions, where the abutter does not own the fee, such deprivation is not a taking of property for which he has a constitutional right to recover, but only a damage for which he is repaid if there are statutes in his jurisdic- tion giving him that right; see Nichols, Eminent Domain, 2d ed., sec. 115. 173 174 THE LAW OF CITY PLANNING AND ZONING wisdom to determine. 2 It is now more customary than hereto- fore to give the city the power to take the entire title or "fee" to lands needed for streets, and for cities to exercise this full power. Experience proves the wisdom of such a course. There are cases in which the taking of easements is an economy : but as a rule the full title costs the city little more than the limited right, and is much more valuable to it. Owning the fee, the city can always allow the abutting property owner to use the property to such an extent as may be expedient and resume its full rights at any time without cost to it. Effect on Abutters' Rights. The statutes and decisions of the various states are not in harmony as to the differences resulting from the taking of an easement, as distinguished from a fee, in the land wanted for streets. Where the city owns the fee it is settled that the abutter may not occupy any part of the surface, sub-surface or super-surface of the street except with the city's permission and on payment of any charge that the city may make; whereas if the city has taken only an easement for street use, the remaining uses belong to the abutter, and the city cannot exclude him from them or require him to pay for enjoying them. Thus if the city owns the fee, and an abutter wishes to build a vault under a part of the sidewalk, he can do so only with the city's consent, revocable at any time, paying for the privilege whatever the city may charge. If, however, the city owns only an easement, the sole question is whether the space desired by the abutter is needed for sewers, water pipes, or some other street use. If not, the space belongs to the abutter, and he has the right to use it without payment to the city. 8 With this exception the better opinion is that there is no practical difference in the two cases in the relative rights of the abutters and the city. In either case the city and its citizens may employ the street, surface, sub-surface and super-sur- face, for any legitimate street purpose; in either case, the abutter is entitled to access, light, air and view from the street. Thus the public may avail itself of the street for the passage of See p. 21. *McQuillin, Municipal Corporations, Vol. Ill, pp. 2848, 2898. STREETS SETBACKS TRAFFIC REGULATIONS 175 persons and vehicles with goods, but not for sandwich men and vehicles covered with advertisements ; the abutter, where it does not unduly interfere with the use of the sidewalk by passersby, may unload boxes across it, but may not store boxes on it. It is customary, however, in parts of many cities to allow the abut- ter to occupy the city's land beyond the street line, on, over or under the surface, for steps, porticos, vaults, bridges and other private purposes until such time as the city itself needs the land. Sometimes the city actually draws encroachment lines beyond which the abutter may not go. The city does not lose its right to take this land by lapse of time as a private owner would do; and if neither the city nor the abutter is allowed to forget the actual state of affairs, there is no reason why this advantage, which costs the city nothing, should not under a revocable license be allowed the land owner. Removal of Encroachments. When, however, traffic increases, there is no relief so quick and effective as the removal of encroachments and the widening of the driveway by adding to it a portion of the sidewalk. Expensive as this is sure to be to the abutter, he should not regard it as a hardship ; for he has accepted the use of a portion of the city land free of charge on the chance that it would be worth more than the subsequent reconstruction would cost him, and must accept the results of his speculation; in which as a rule he is not a loser. He also gains by the widening of the roadway, which makes his land more serviceable to him and raises its value. Mr. McAneny, under whose administration as President of the Borough of Manhattan in the City of New York encroachments were in many cases removed and the capacity of streets to accommodate the traffic thus increased, incurred at first much enmity by pursuing this policy; but soon the advantages of thus virtually widening the streets were admitted even by the owners whose encroachments were removed. Perhaps no act in Mr. Mc- Aneny 's public life proved in the end more popular. Street Use. Under the decisions of the courts street use includes the transmission of messages, the passage of gas, water, electricity, etc., with the poles, wires, pipes, conduits and other appliances necessary for these purposes ; for this is a use i;6 THE LAW OF CITY PLANNING AND ZONING of the streets for communication, and the streets are intended to be avenues of communication. In practice the streets are utilized for newsstands, and many other private businesses which are not aids to communication. To what extent such an employment of this public space is legal is still uncertain. There seems to be a tendency at least to tolerate as a street use any use which has become customary and is generally regarded as a convenience to the public. These and all street uses and the methods of accomplishing them necessarily change with time and custom and public needs. Use of Streets by Transportation Companies. The most important and difficult questions with regard to street uses arose in reference to the utilization of streets by transportation companies. It was early held that the employment of horse cars with tracks in the surface of the streets by a semi-private corporation to transport local passengers through the streets, was as much a street use as the passage of persons on foot or in private vehicles; and that, therefore, the abutter was not entitled to damages from such a transportation company. This decision was due not only to the fact that such a use was cus- tomary and proper, but also to the fact that cars drawn by horses on the surface of the street did not appreciably increase the burden cast upon the abutter. Gradually, with changing methods of transportation, the abutter's rights and privileges have been encroached upon. The courts in the different states still differ in their distinction between what is and what is not a street use for which a corporation must pay abutters damages. The tendency of the legal decisions is to draw the line as fol- lows : Corporations may, without payment to abutters, trans- port local passengers by any motor power at grade; if, how- ever, they employ subways or elevated structures, or carry freight or other than local passengers, they are liable to abut- ters. It is difficult to see why the latter uses are not logically as strictly street uses as the former. Apparently the decisions in this particular line of cases have come to turn rather on the actual burden cast upon the abutter than upon the question whether the use is a legitimate street use. STREETS SETBACKS TRAFFIC REGULATIONS 177 Setbacks. A setback or front building line 4 is a line behind the street line beyond which on his own land the abut- ter must not erect buildings, the land owner retaining the right to use his land for all other purposes. The establishment of such a line is therefore the taking by the city of an easement under the right of eminent domain in the land abutting on the street in question, the city paying not the value of the land, but merely the value of the easement. 5 This easement varies with the statute and the ordinance drawn under it by which the line is fixed. Under some ordinances nothing can be built beyond this line ; under others, where perhaps lawns are deep, porches, piazzas, etc., are allowed to project for a certain distance, a subsidiary porch and piazza, line being drawn. As a rule, to save expense, buildings in advance of the building line at the time it comes into existence are allowed to remain, but not to be renewed or substantially repaired ; 8 and, to avoid too great * The building line or setback has been resorted to in this country for many years ; and statutes authorizing its use will often be found in the private laws of the various states, and the charters of their cities. In Connecticut, for instance, the establishment of a building line was authorized in Hartford in 1799; in New Haven in 1826, Bridgeport and Norwich, 1836. The provisions will be found in the private laws of the state, Vol. I. For many more or less similar acts, see the private laws for 1859, 1897, 1911, 1913, 1915, 1917. The subject is now regulated in Connecticut by general laws ; Gen. Stats. 1918, sec. 392 ff., 519 ff. For the laws in the various states on this subject see Tables of Statutes. " Perhaps, however, by zoning, setbacks may be established under the police power without compensation; for the law on this subject see p. 279. It should be noted also that in Pennsylvania (as on the Continent of Europe; see p. 177) as a result of the practice, sustained by the courts of that state (see p. 31) a building line may be established in street widenings without compensation to the owner of the land and buildings, except for the land at the time it is taken; the owner being meanwhile forbidden to renew or substantially repair the buildings. For examples of such procedure see among many others ordinances of Phila- delphia for the widening on the city plan of Chestnut Street, approved March 31, 1884, June 23, 1888, and June 30, 1892. See also the recent Pennsylvania statutes '1921, Nos. 62 and 295 on the subject, given on p. 587 of this work. In this connection the ordinances for arcading isth and South Penn. Square streets in Philadelphia by the same method, approved on June 9, 1900, may be of interest. See also "Street Widen- ing to Meet Traffic Demands" by Nelson P. Lewis, in the Proceedings of the 9th National Conference on City Planning (1917), P- 43- 8 Massachusetts originally passed its building line statute (Acts 1893, ch. 462) without this provision; and little use was made of this power until it was amended as here suggested. For the statute in the present form, see p. 184 of this work. i;8 TH1-: LAW OF CITY PLANNING AND ZONING irregularity in the frontage of the buildings and too long delay in completing the improvement, the city often condemns the remaining buildings or parts of buildings in advance of the line when in course of time they have become few or of little value. Uses of Setbacks. The setback may be employed with advantage as a feature in the construction and use of three classes of streets : suburban and minor residential streets, suburban business and traffic streets and business and traffic streets in the more central parts of cities. The problems that arise in these three situations will here be treated separately. Suburban and Minor Residential Streets. In small communities outside the business center, and in the suburbs of larger communities, a desirable and profitable form of develop- ment of land on smaller and side streets is that of houses with lawns in front; and districts so developed will often be found in such neighborhoods. Such districts are sometimes the result of the establishment of a setback by private covenants in deeds inserted by the owner of a large tract, or of tacit agreement by many individual builders of homes. Where the location of the district is 'wisely chosen, appropriate restrictions of this sort raise land values, because they make a neighborhood more quiet, pleasant and healthful for residence. Such districts, also, decrease the congestion and increase the light and air of the community as a whole. In most cases, therefore, there is no reason, economic or social, why the character of the district should not remain unchanged for many years. Private covenants, however, expire, and tacit agreements may be violated with impunity by any land owner. In order, therefore, to preserve the district in the interest of the owners and the city it is often necessary to provide for public setbacks. Nor is the utility of the publicly created building line limited to these districts. There may be other districts which should be improved in this way ; but, except where the land owners arc few in number, it is seldom possible to get them all to agree; and without such an agreement it is impossible to establish the restriction, unless sanctioned and enforced by the public au- thorities. STREETS SETBACKS TRAFFIC REGULATIONS 179 Suburban Business and Traffic Streets. A charac- teristic of the age in which we live is the growth of cities, both in population and in business and industry in proportion to population. This growth seems invariably to occasion a more intensive employment of land, due, in any given locality, either to an increase in the same use or to a shift to a more intensive use. In either case an added burden is thrown upon the streets, the main business thoroughfares receiving most of it. This occurs both in the central and in the more outlying parts of cities, and, in both cases, often makes it desirable to provide for the adaptation of the streets to the change of conditions likely, with time, to occur. The problem is by no means the same one in city suburbs and city centers. In the centers the streets have long been built, and it is no longer possible to choose a flexible form of street construction; nor can changes in the streets be made without great expense. In the suburbs, however, there are still streets to be laid out, and the streets that already exist are not so intensively improved. These prob- lems should therefore be considered separately, and it is the suburban problem that will be now taken up. In laying out a new street which may become important for business or traffic two courses are open to the city, by either of which the future widening of the street may be provided for. The city may at once take land of a width adequate for future needs and allow the abutters to use strips on each side for narrow lawns, or it may lay out the street just broad enough for present uses and impose a setback on the abutters, so that when the street is widened it will not be necessary to pay for buildings. Either course avoids the waste of main- taining a paved roadway of needless width, gives the abutters the advantage of strips of green as long as possible, and avoids useless destruction of buildings. The wisest course for the city to pursue is perhaps to take the entire width if the authori- ties have good grounds for thinking that it will be needed within a reasonable time and there is money in the treasury for the purpose; but otherwise to be satisfied with the narrower street and a building line. The advantages of imposing a setback on land abutting on i8o THE LAW OF CITY PLANNING AND ZONING streets of this character after they have been constructed, when this is still reasonably possible, are admirably stated in a pamphlet issued by the Committee on City Plan of the City of New York. 7 The committee points out the "practical im- possibility" of changing the lines of a street improved to its very edge, whatever the increase of the burden is that is cast upon it. This obstacle is avoided by the use of the building line before such an intensive development occurs. "The existence of the set-back line" the authors say, "will permit the economical widening of traffic arteries whenever traffic needs require. It introduces a measure of adaptation and elasticity in street design that is of immense importance in view of the almost prohibitive expense of widening a street once laid out and improved. "The fixing of the set-back line now is the only practical method by which the widening of many traffic arteries can be secured in the future when greater width will assuredly be required. These arteries are now residence streets and the houses have been set back in order to provide lawn and shade and to remove them from dust, fumes and noise of the street. They cannot be widened at present, as the cut- ting off of the front lawns would in large measure destroy the value of the dwellings. When, however, traffic has so increased that the street must be widened it is more than likely that the street will be no longer desirable for private residence purposes, and the private dwellings will be replaced either by apartments or by business build- ings. The set-back line can therefore be established when the future traffic thoroughfare is still a residence street, with advantage to all owners, and when the time comes to widen the street to meet traffic needs the set back can be taken for street purposes and this, too, will be to the advantage of the owners. By thus imposing the set-back line and then widening the street at the very time that these things can be done with greatest advantage, both to the owners and the City, the traffic artery can be secured at a minimum expense." The extract just quoted not only states the advantages derived from the flexibility obtained by the use of the front building line but also illustrates the usefulness of the building line in securing an orderly shifting from one development to another. When the residential street, with houses set back from it, changes to a street of apartment houses or stores, these T "Establishment of Setbacks or Court Yards in the City of New York," issued in 1917 in advocacy of a city bill, since passed by the lepris- lature (1917, ch. 631) Riving the city power to establish such lines. The statute is given in full on page 185 of this work. STREETS SETBACKS TRAFFIC REGULATIONS 181 buildings in all probability will advance to the very edge of the paved sidewalk. Such changes usually cannot and should not be opposed; for the higher land values generally indicate that the new use is of greater importance to the community; but the change should not be made at the whim of one or two shortsighted or selfish land owners, who by building to the sidewalk force an immediate and general change against the interests of the street as a whole, and temporarily impair land values for the entire street. With a setback established, such a change is impossible until the city, in the general interest or the interest of the majority of the property owners on the street, removes the restriction and authorizes the change of use. On such a street there is often a special need of a setback at street corners. As communities grow and traffic increases, corners are the first to develop to the very street line. This situation in this age of rapidly moving automobile traffic in- vites collisions. In such cases, no doubt, the city can well afford to pay for the right it takes to maintain a view around corners in the interest of traffic movement. Central Business and Traffic Streets. The widening of streets in city centers, intensively improved with buildings on each side to the street line, is sometimes imperative. The expense in such cases is very great, and is due much more to the value of the buildings that must be demolished than to the cost, large as it is, of the land that must be taken. In such improvements much may be saved by establishing a building line back of the street line and of the fronts of the buildings, under the provisions of which buildings, in so far as they are in advance of this line, shall not be renewed or substantially repaired. In this way the city is not forced to take the buildings until they are of comparatively little value. Such a street widening is slow, but the great saving effected makes many improvements possible that otherwise would not be undertaken. Economy of Setback. In the accomplishment of all three of the purposes set forth above the use of the setback is an economy. In districts where front lawns are appropriate the 182 THE LAW OF CITY PLANNING AND ZONING line, if established seasonably, is altogether for the advantage of the property owners and may be fixed without expense to them or the city ; for the theoretical damage to the land owner due to the restriction placed on his property is at least equalled by the benefit to him of the restrictions imposed upon his neigh- bors. As an adjunct to suburban business and traffic streets the setback is economical because it saves future waste and expense and interferes little with present uses, or even promotes them. These'two uses of the front building line are by far the most essential and the most usual. Of their financial results in Brookline, Massachusetts, the report of the planning board for 1915 says: "The statement designated 'Appendix D' is of interest as indi- cating in a general way the extent to which the building line has been used in Brookline since its acceptance in 1896. Between 1898 and January ist, 1916, the law has been applied to twenty-one streets and a total frontage of 33,303.63 lineal feet. The set-back varies from five to twenty feet and has an average of 10.3 feet. On thir- teen streets no award has been made or only a nominal award. An easement for building lines has been taken from one hundred and eight property owners and of this number ninety received either no award or merely a nominal award for damages. The total cost to the town of building lines on the twenty-one streets has been $1,687.00. The total area restricted has been 315,907.9 square feet, making the average cost to the town for building restriction for all building lines about one-half cent per square foot. There is but one outstanding suit for damages for establishment of building lines and no suit for such damages has ever been brought to trial." It remains to consider the cost of the setback as a method of increasing the width of intensively developed streets. The claim cannot be made for it that it accomplishes the desired result at a small expense, for this cannot be brought about by any method. It does lessen the outlay more than can be done in any other way, and this is all that can be hoped for. By its use many of the heaviest items of expenditure are eliminated, and all the rest remain the same or are not greatly increased. Setback lines may be established by the procedure employed for laying out streets, any costs being assessed against the STREETS SETBACKS TRAFFIC REGULATIONS 183 abutters in proportion to their benefits, as in street openings. 8 If this is done there will be few cases in which a proper build- ing line, except where it is used to widen intensively developed streets, is of any expense to the city as a whole. The financial results to the town of Brookline, just quoted, are all the more remarkable because such assessments are not provided for under the Massachusetts law. The setbacks, like streets and other public features, should be a part of the city map. The constitutionality of setback statutes to be established under the power of eminent domain cannot be questioned. The interest in the extra land is condemned for a street use; the legislature has decided to take an easement in land for these purposes instead of the entire title; and the wisdom of this de- cision cannot be challenged by the courts, for it is a question for the legislature alone to decide. Such legislation is common abroad, has existed and has been used for many years in sev- eral of our states and has received the approval of our courts. Traffic Regulation. In the exercise of its police power the city, in order to facilitate traffic, has the right to impose regulations upon abutters and the general public in their use of sidewalks and roadway. Those regulations are of many sorts, such as limiting the hours during which abutters in crowded parts of the city may load and unload goods across the sidewalk, forbidding vehicles to stand longer than a certain time at certain places and requiring vehicles to obey certain di- rections of police stationed at congested corners. Special streets are often subject to special rules. Thus in some cities traffic in certain narrow streets called "one way streets" is allowed to go only in one direction; and on some boulevards only pleasure vehicles are permitted. Traffic regulations are likely to become more specific as congestion in cities increases. For instance, streets are laid out of a given width to accom- modate a given number two, three, four or more of streams of vehicles with space for a standing vehicle at one or both curbs. A vehicle appreciably wider than the average taken as 8 For references to building line statutes, under which in most cases the costs are paid by local assessment, see p. 184, ff. Building lines. Damages. 184 THE LAW OF CITY PLANNING AND ZONING the basis of this calculation entirely spoils this nice adjustment. As streets where buildings and land are perhaps too expensive to condemn for street widening approach their capacity, more and more careful traffic regulation may be the only relief from intolerable congestion. Note C Setback or Building Line Statutes in the United States No. i. MASSACHUSETTS* If a city by its city council or a town accepts this section or has accepted 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, por- ticos and other usual projections appurtenant to the front wall of a building to the extent prescribed in the vote establishing such build- ing line, and except that buildings or parts of buildings, embank- ments, steps, walls, fences and gates existing at the time of the estab- lishment of the building line may be permitted to remain and to be maintained to such extent and under such conditions as may be pre- scribed in the vote establishing such building line. Whoever sus- tains damage thereby may recover the same under chapter seventy- nine [eminent domain]. A building line established under this sec- tion may be discontinued in the manner provided for the discontinu- ance of a highway or town way. Whoever sustains damage by the discontinuance of a building line may recover the same under chap- ter seventy-nine. No. 2. INDIANA" Such board [of park commissioners of first or second class cities] 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, 'This statute was first passed in 1893 (ch. 462) authorizing a set- back of not more than twenty-five feet. Under this law there was no provision, as in the present law, for allowing existing buildings to re- main, and it was little used. The law here given is Gen. Laws 1920, ch. 82, sec. 37. For similar provisions with regard to towns with boards of survey, see Gen. Laws, 1920, ch. 41, sec So. "Acts 1911, p. 566, part of sec. 7; Burns' Annot. Ind. Statutes, 1914, sec 8753. STREETS SETBACKS TRAFFIC REGULATIONS 185 and to require the removal of, all structures outside of such lines; and when so condemned, no permit shall be issued authorizing any structure outside of the line or lines so established; and no such permit issued by any department or officer of any such city shall be effective and valid, unless approved by the board of park commis- sioners of such city. 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; . . . No. 3. NEW YORK u The City May Acquire Real Property for Streets, Parks, Etc. New York City Charter, Sec. 970. The city of New York may acquire title either in fee or to an easement, as may be determined by the board of estimate and apportionment, for the use of the pub- lic, to all or any of the real property required for streets and court- yards abutting streets, and for parks, parkways, playgrounds, ap- proaches to bridges and tunnels and sites or lands above or under water for bridges and tunnels, and sites or lands above or under water, for all improvements of the navigation of waters within or separating portions of the city of New York, or for the improvement of the water fronts of the city of New York, or part or parts thereof, heretofore duly laid out upon the map or plan of the city of New York, of the city of Brooklyn, or Long Island City, or of any of the territory consolidated with the corporation heretofore known as the mayor, aldermen and commonalty of the city of New York, or here- "The provision with regard to setbacks (here called "courtyards abutting streets") was made by the statutes of the State of New York of IQ 1 ?; ch. 631, as an amendment to the sections of the charter for the acquisition of land for streets, parks, etc., and is phrased with a fullness of detail^ characteristic of legislation in that state. The amendment is here distinguished from the former law by being placed in italics. 186 THE LAW OF CITY PLANNING AND ZONING after duly laid out upon the map or plan of the city of New York, as herein constituted, and cause the same to be opened, or acquire title as above stated to such interests in real property as will promote pub- lic utility, comfort, health, enjoyment, or adornment, the acquisition of which is not elsewhere provided for. The board of estimate and apportionment may specify what use is required of the real property which it may determine shall be acquired for public use, and the extent of such use, and may direct the same to be acquired whenever and as often as it shall deem it for the public interest so to do. The real property required for such purposes may be taken therefor, and compensation and recompense shall be made to the owners thereof. The real property benefited by the improvement may be assessed for the benefit and advantage derived therefrom. In all proceedings authorized by the board of estimate and apportionment prior to the first day of January, nineteen hundred and seventeen, the said board shall determine whether the compensation to be made to the owners of the real property to be acquired shall be ascertained by the supreme court without a jury, or by three commissioners of estimate to be appointed by the said court. In proceedings in which the board of estimate and apportionment shall determine that the compensation to be made to the owners of the real property to be acquired shall be ascertained by the supreme court without a jury, the city of New York shall make application, or cause application to be made to the said court, in a county within the city of New York and within the judicial district in which the real property to be acquired is situated, to have the compensation, which should justly be made to the respec- tive owners of the real property proposed to be taken, ascertained and determined by the said court without a jury, and to have the cost of the improvement, or such portion thereof as the board of estimate and apportionment shall direct, assessed by the court upon such real property as the board of estimate and apportionment may deem to be benefited thereby. In proceedings in which the board of estimate and apportionment shall determine that the compensation, which should justly be made to the owners of the real property proposed to be taken, shall be ascertained by three commissioners of estimate to be appointed by the said court, the city of New York shall make application, or cause application to be made to the said court in a county within the city of New York and within the judicial district in which the real property to be acquired is situated, for the appoint- ments of three commissioners of estimate to ascertain and determine the compensation to be made to the owners of the real property pro- posed to be acquired, and in a proper case, for the appointment of one of the commissioners of estimate as a commissioner of assess- ment for the purpose of levying the assessment of the cost of the improvement, or such portion thereof as the board of estimate and apportionment may direct to be assessed upon such real property as STREETS SETBACKS TRAFFIC REGULATIONS 187 may be deemed by the said board of estimate and apportionment to be benefited thereby. The board of estimate and apportionment may authorize two or more streets to be included in one proceeding. The moneys collected upon the assessment for benefit shall be paid into the city treasury. The damages awarded as compensation shall be- come due and payable immediately upon the entry of the final decree of the court, or upon the entry of the order confirming the report of the commissioners of estimate, as the case may be. In proceedings authorized by the board of estimate and apportionment after the first day of January, nineteen hundred and seventeen, the compensation to which the owners of the real property to be acquired for the use of the public for the purposes specified in this section, shall be ascer- tained and determined by the supreme court without a jury in the manner and according to the procedure prescribed by this title, and on and after said date the city of New York shall make application to the court, or cause application to be made to the supreme court in a county within the city of New York and within the judicial district in which the real property to be acquired is situated, to have the compensation, which should justly be made to the respective owners of the real property proposed to be acquired, ascertained and deter- mined by the said court without a jury, and to have the cost of the improvement, or such portion thereof as the board of estimate and apportionment shall direct, assessed by the court upon the real prop- erty deemed by the board of estimate and apportionment to be bene- fited thereby." Vesting of Title in the City to Real Property Taken for Streets or Parks or Other Purposes SEC. 976. Should the board of estimate and apportionment at any time deem it for the public interest that the title to the real property required for any improvement, authorized herein, should be acquired by the city of New York at a fixed or specified time, the said board of estimate and apportionment may direct, by a three-fourths vote, that upon the date of the entry of the order granting the application to condemn or upon the date of the filing of the oaths of the com- missioners of estimate, as the case may be, as provided for in this title, or upon a specified date after either, the title to any piece or parcel of real property lying within the lines of any improvement herein authorized, shall be vested in the city of New York. Upon the date of the entry of the order granting the application to con- demn, or upon the date of the filing of such oaths, as the case may be, or upon such subsequent date as may be specified by said board, the city of New York shall become and be seized in fee of, or of the easement, in, over, upon or under, the said real property described in the said resolution, as the board of estimate and apportionment 188 THE LAW OF CITY PLANNING AND ZONING may determine, the same to be held, appropriated, converted and used to and for such purpose accordingly. In such cases interest at the legal rate upon the sum or sums to which the owners are justly entitled upon the date of the vesting of title in the city of New York, as aforesaid, from said date to the date of the final decree of the court or to the date of the report of the commissioners of estimate, as the case may be, shall be awarded by the court or by the com- missioners, as the case may be, as part of the compensation to which such owners are entitled. In all other cases, title as aforesaid shall vest in the city of New York upon the filing of the final decree of the court or upon the entry of the order confirming the report of the commissioners of estimate, as the case may be, and the reversal on appeal of the final decree of the court or of the order of confirma- tion, as the case may be, shall not divest the city of title to the real property affected by the appeal. Upon the vesting of title the city of New York, or any person or persons acting under its authority, may immediately, or any time thereafter, take possession of the real property so vested in the city, or any part or parts thereof, without any suit or proceeding at law for that purpose. The title acquired by the city of New York to real property required for a street shall be in trust, that the same be appropriated and kept open for, or as part of a public street, forever, in like manner as the other streets in the city are and of right ought to be. The board of estimate and apportionment may, at the time of the adoption of the resolution insti- tuting the proceeding in which lands are to be acquired for courtyard purposes, determine whether the fee or an easement shall be acquired in lands required for courtyards, and it may prescribe such condi- tions and limitations on the title so to be acquired and as to the tem- porary or permanent use of the land so to be acquired as it may deem. proper, and the title which the city shall acquire to the lands required for courtyard purposes shall be such as the board of estimate and apportionment shall determine, and such title shall be held by the city subject to such limitations and conditions as to title thereto or as to the use thereof as the board of estimate and apportionment shall prescribe. If not inconsistent with such limitations and conditions as to title or as to use, land acquired for courtyard purposes may be devoted to general street uses whene'er the board of estinuitc rtcr- buch der Staatfwissenschaftcn" (Jena, 1893), Vol. 5, p. 847 (1893) and Baumeister's book, referred to below. The first careful formulation of the theory of use zoning was by Baumeister in his book entitled "Stadter- li'citcruii'jsn in technischer, baupoliseilichcr und wirtschaftlichcr Besie- hunfj" (published by Ernst and Sons, Berlin, 1876). In that book, p. 84 ff, he traces use zoning back to the decree of Napoleon I, issued Oc- tober 15, 1810, while Protector of the Confederation of the Rhine, to be found in the (French) Bulletin des his for 1810 (second half year), P- 397, being No. 6059. This decree provides that establishments which disseminate an un- healthy or unpleasant odor shalj be erected only on administrative license. It divides such establishments into three classes of which the first shall not be erected near a human habitation, their exact location and distance from residences to be fixed by the administrative authorities. This de- cree formed the basis of the Prussian law (Allgemeine Gewerbeordnung, passed January 17, 1845, Gesetz Sammlung, 1845, Nr. 2541) on this sub- aid this law was in substance followed by the North German Con- federation in its industrial law or "Gewerbeordnunft" of June 21, 1869, Bundes-Ges. Bl., 1869, N r - 3 12 , which was the foundation for the pro- visions of the law of the German Empire on the same subject, the well- known "Rdduoewerbeordming." It was under this law, admini I'V the state authorities, that tin s<> railed "protected district" to be dis- ! later, which is the Mmplrst :u.o of the building lot lying behind the building line ; in the residential and mixed districts of the outer and rural district zones an additional %o. In the suburban house district, only one apartment is permitted in each story. 2. Deep Houses If a front building has a depth in excess of 18 m., then the requisite open space is to be increased by a space equal to that part of the area that exceeds in depth the i8m. In reckoning the open area, the area of side setbacks that begin at the building line and exceed those required under Sec. 4, I, i, is disregarded. In the mixed districts front houses and connected rear buildings are for the purposes of this provision considered as one house. In the resj- 246 THE LAW OF CITY PLANNING AND ZONING dential and mixed districts of the rural district zone and in the suburban house district, the basis is 15 m. (instead of 18 m.). In the residential districts of the outer and rural district zones and in the suburban house district the requisite enlargement equals once and a half the amount of the area of that part of the building which exceeds in depth 18 m. and 15 m. respectively.* [Here follow additional formulas for fixing the increase of uncovered space.] This subdivision shall not apply to buildings devoted entirely to industry in the mixed and factory districts. 3. Rear Buildings When rear buildings are erected with more than three apart- ments, a further Mo of the building lot situated behind the building line shall be kept open. III. Exceptions 1. For one family houses exceptions to the provisions of I and II, 2, may be allowed. 2. Where blocks are built in accordance with the provisions of Sec. 4, II, 2, d, the provisions of II, i, sentence I, and II, 3, may be waived; and buildings which contain philanthropic residential adjuncts may be disregarded in reckoning the area to be left free from structures. 3. If the court conditions are favorable, an exception may be allowed from the provisions of II, i, sentence i, II, 2, and 3 for buildings that were in existence or approved on April i, 1910; also until March 31, 1912, for lots that on April i, 1910, were already subdivided and for which the full application of the provisions would cause hardship. 4. By special license more of the area of the lot may be covered when by lessening the permissible building height (sec. 5) the cubic content resulting from the permissible height and the area built over, in accordance with the provisions of this paragraph, are not exceeded, and light and air conditions are favorable. 5. If the provisions of II, 1-3 both apply, then only that addition to the open space shall he made which gives the greater open space. 6. Exceptions to 7, I, e, may be allowed by the building police, under the conditions of sec. 12, II, E, e. IV. Use In the suburban house district, the area left open shall, with the exception of the necessary entrance walks and drives, be laid out and maintained as gardens and must not be used for storage. * Summarized. ZONING IN EUROPE 247 DISFIGURING STRUCTURES, STABLES, ETC., IN THE RESIDENTIAL AND MIXED DISTRICTS Sec. 8 I. Free standing buildings of more than two stories on public streets or squares shall not have a length of frontage of less than 8 m. For corner houses this provision holds on both street fronts. II. Neither structures which in the opinion of the building police would be strikingly at variance with the character which by lay out and building development the street possesses, nor stables, barns, carriage houses, wash kitchens, outhouses and the like, shall be erected on public streets or squares. Exceptions may be allowed by the building police when these buildings in their opinion receive an appro- priate architectural treatment. III. The back and sides of a building which is erected so near the building line of a street that, in the opinion of the building police, necessary space for the erection of a building concealing such back or sides would not be left, must be given a situation suited to the building line in question and a suitable architectural form. IV. Party walls that remain permanently visible from the street must be finished like faqades. BUILDINGS WITH TIMBERED CONSTRUCTION * Sec. 9 (Structural provisions) Sec. 10 1. For dwelling houses that fulfil the following conditions: a. The houses must not cover more than 130 sq. m. of ground area, in which connection balconies, open verandas, etc., are not included. b. They must not have more than three stories (exclusive of roof story). c. They must not have any apartments in the cellar or basement. d. The roof angle over the principal cornice to the joists must not exceed 70 degrees; that from there up, 45 degrees. Moreover ; 2. For one and two family houses with at most two stories (exclu- sive of roof story) there may be the following exemptions: * Summarized- 248 THE LAW OF CITY PLANNING AND ZONING a. The clear height of the stories may be reduced to 2.80 m. b. The practicable depth of the stairs may, if in no story more than one apartment is situated on such stairs, be reduced, with wind- ing stairs to i m. ; with straight runners and landings to 90 cm. ; and the width of halls to 90 cm. c. Exceptions to the provisions of sec. 20 of the Building Ordi- nance with relation to strength and construction of party, faqade. and partition walls, may be granted by the building police if the building will be sufficiently stable, fire resisting, and hygienic. d. So also wood construction of verandas and the like may be permitted if no instability or fire risk exists. e. In building groups, party walls of the strength and thickness as prescribed need be erected only every 40 m. of the length of the group, and need not be raised above the roof more than 20 cm. /. In place of the enclosures on streets as prescribed in sees. 57 and 58 of the Building Ordinance, any other sort of enclosure may be allowed by which the cleanliness of the street and the safety of passers-by are not endangered. g. The buildings may be occupied four months after their inspec- tion in the rough. PROHIBITION OF OFFENSIVE INDUSTRIES Sec. ii 1. In residential and suburban house districts the erection or enlargement of works which may be injurious, dangerous, or annoy- ing to the owners or occupants of neighboring lots or to the public generally by spreading injurious gases or dense smoke or making unusual noises, especially works that under sec. 16 of the National Industrial Ordinance * must be especially licensed, are forbidden. On main traffic streets in residential districts, small bakeries, con- fectioners, and butchers' shops, etc., may be erected by special license. 44 2. In suburban house districts, workshops of every sort, hos- pitals, restaurants and other objectionable enterprises; also such stores as by their conduct cause smells, noise, or other annoyance, are forbidden. PARTICULAR PROVISIONS FOR SPECIAL SECTIONS * Sec. 12 [Here follow several pages of provisions applicable in some places to large, in others to very small areas. These provisions are public * Summarized. *" See p. 210. "This provision was passed May 31, 1913. ZONING IN EUROPE 249 ordinances but in many cases were passed on petition of the land owners concerned. Some of these regulations are public law and nothing else ; some of them also form part of private restrictive cove- nants. In all cases, in so far as they are public, they may be changed or repealed like other ordinances. A specimen of these special pro- visions is given below. The reader will have noticed similar provi- sions in the case of the building ordinance, a translation of which is given on p. 228 (sees. 64, 65, p. 237.)] I. Residential District, Inner Zone 2. For the section between Hohenzollern Square, Kettenhof Way, Konigs Square, Varrentrapp Street and Bismark Boulevard, the following provisions apply : a. In block B ,** also in the tract on Hohenzollern Square between Victoria School and Roon Street, as well as on Roon Street, only buildings of two stories may be erected; also the ridge of the roof and vertical projection must not exceed 14 m. ... c. On Hohenzollern Square, groups of buildings are not per- mitted. d. In blocks A and B only buildings with at most two apartments . . . are allowed. . . . /. Workshops of every sort, hospitals, restaurants and similar objectionable enterprises are not permitted. In Blocks A, B, D, and E stores are also forbidden. In block C, on the Moltke Boulevard and Konigs Street, shops whose conduct causes smells, noise, and other annoyances are forbid- den; on Bismark Boulevard, in the block, stores are allowed only upon special license of the executive branch of the city council. On the corner of Moltke Boulevard and Bismark Boulevard, the erection of a first class cafe may be permitted. g. For public buildings the executive board may grant exemp- tions. . . . TRANSITIONAL AND EXCEPTIONAL PROVISIONS Sec. 13 i. Exemptions That May Be Allowed in Certain Localities I. The building police is authorized to allow appropriate excep- tions when by the complete application of the provision of sees. 4-8 and 12 the building up or use of lots situated on streets or parts of streets which on April i, 1910 were already opened and in part 45 The boundaries of each block are given in the original. built up would be made materially more difficult or impossible either by reason of unfair limitation of height with relation to the height of existing buildings or otherwise. II. To the building police the right is further reserved to allow exceptions for public buildings, hospitals, buildings for philanthropic institutions, and monumental private buildings. III. In the residential and mixed districts of the rural district zone and in the suburban house district, newly built dwelling houses in the sections which are not yet connected with the city sewer sys- tem may be erected only when the building police consider the exist- ing facilities for the disposal of sewage, drainage, etc., sufficient for sanitary purposes. PENALTIES AND RULES FOR ENFORCEMENT Sec. 14 * I. Fines, etc. II. In addition the removal of the condition contrary to this ordi- nance may be compelled when as a result of voluntary transfer or other acts of the landowner the open space required by section 7 no longer is at hand or when single family houses in the erection of which one or more of the exemptions of sees. 4, 6 and 7 were made use of, are utilized for apartments for several families or when any other use of lots contrary to the provisions of this police ordinance occurs. III. Areas which with relation to a given lot are required to be left free of structures or the leaving open of which is assumed in the granting of the permit to build, remain, so far as the minimum free spaces under this ordinance are concerned, burdened with this restriction when they are cut off from that lot or through transfer of title they have wholly or partly passed into other hands; and such areas, in granting additional permits to build, cannot be considered. DATE WHEN ORDINANCE GOES INTO EFFECT; AND REPEALS * Sec. 15 The ordinance in effect April 8, 1910, repealing many previous ordinances. No. 3. THE DUSSELDORF BUILDING ORDINANCE** The building ordinance of Diisseldorf is detailed and complicated. It contains certain structural and other provisions which are the same * Summarized. ** Passed March 8, 1912. It will be found in German in a convenient form as edited l>y P. Wagner, Gebr. Tonnes, Publishers, Dusscldorf, 1912. ZONING IN EUROPE 251 for the entire city and which, in this brief summary, there will be little occasion to consider ; and zoning provisions, which are the chief concern of this inquiry. The purpose of the zoning rules, in Dussel- dorf as elsewhere, is to produce structures which in bulk and type are, so far as possible, suited to the part of the city in which they are to be situated; in the attainment of which result the bulk of structures, in proportion to the area of their lots, decreases as the distance from the centers of business, congestion and high land value becomes greater ; and the type of building is adapted to the situation and best use of the land on which it is to stand. The zoning regulations consist of (bulk) zone rules and class rules. The zones, five in number cover the entire city; the classes, of which there are eleven in all, occur only in those districts or on those streets or parts of streets, within the zones, to which they are applied ; the class rules, in so far as there is conflict, superseding the zone rules. The main purpose of the zone rules, as distinguished from the class rules, is to fix the bulk of buildings; but these rules do sometimes favor certain types of building. The main purpose of the class rules is to fix the type of building, but these regulations are to some extent bulk regulations. To illustrate: In zone i, a third of each lot must, as a general thing, be left free of buildings; but, if there are any rear buildings on the lot, one half of it must be left open. This provision discour- ages the erection of rear buildings but does not forbid it. In class B n, on the other hand, a rear building line, not demanded by any zone regulation, is required; and the height limit is thirteen meters, superseding the limit of the zone, whichever it may chance to be, in which this class is found. These are bulk regulations, but they are employed not so much to limit bulk as to produce or aid in obtaining a given type of structure. In the building regulations of Dusseldorf, as in those of all cities, there are many rules that apply throughout the entire city, a few of which must be considered, and there are also certain rules that vary in the different zones and classes. Dusseldorf, too, has formulated in her building ordinance certain definitions which, besides making that ordinance more intelligible, are interesting and suggestive. This summary of the Dusseldorf building ordinance will therefore give: (A) definitions, (B) general provisions, (C) the general scheme of division of the city into zones and classes, (D) the zone rules, (E) the class B or residential class rules (the other class rules having been sufficiently indicated in the general scheme of division under (C). In this survey of the Dusseldorf ordinance only those pro- visions are taken up which are novel or especially important, and these only in outline, without explanatory or qualifying details and exceptions. 252 THE LAW OF CITY PLANNING AND ZONING DEFINITIONS One, Two, Three or Four Story House. A house used solely for residential purposes and which in design, construction and equip- ment is fitted for use only by one, two, three, or four families, respec- tively. In no case shall a story have more than one apartment. A janitor's apartment when and as authorized by this ordinance is not regarded as an infringement of this rule. Double House. A building exclusively for residential purposes, with a common stair well, which serves two families on each floor; the two apartments being otherwise separate and distinct. The nunv ber of main residential rooms in the apartments of any floor shall not differ in number by more than one; and the number of any of the subordinate rooms such as bathrooms, etc., shall be the same. Small House. A one family house with not more than two stories and not higher than 7.5 m., or a two family house of the same plan but with not more than eight principal dwelling rooms. House of Small Tenements. A house strictly for residence, con- taining only small apartments, i. e., family dwellings with at most three principal dwelling rooms. Under the provisions for this class of house, by special permit, a house with a family apartment in the ground story with four main dwelling rooms and small stores or shops, may be built. Large Tenement House. A house of more than two stories (ex- cepting the roof story) which, exclusive of permissible rooms or apart- ments in the roof story, contains not more than twelve apartments. Rural Buildings. Residential and agricultural buildings dwelt in and used only by the owner of the land, his relatives and employees. Common Courts. Courts on contiguous lots the permanency of the union of which is secured by covenant between the neighbors, and between each of them and the city. Common Side Setback Spaces. Contiguous side setback spaces on neighboring lots the permanency of the union of which is secured by covenant between the neighbors, and between each of them and the city. GENERAL PROVISIONS Height. Height is measured to the upper surface of the cornice. The maximum varies from 20 m. to 7.5 m. Except on streets which ZONING IN EUROPE 253 may be built up on only one side, the front house must in no case be higher than the street is broad. On corner lots the height on the broader street may be carried along the narrower street to a distance equal to the width of the wider street, but in no case more than 20 m. The height of rear buildings, wings, etc., is regulated by the width of the courts in front of them and varies in the different zones and classes. Light Profile. Buildings extending back from the building line more than 20 m. must, on the sides toward the neighboring side line, keep within a height and profile varying in the different zones and classes, so as not to obstruct their neighbor's light. A lot is, as a rule, relieved of this obligation when the neighbor is under the legal obligation not to construct required windows giving on this lot. Number of Stories. The maximum number of stories varies in the different zones and classes from 5 to 2. It is lessened by one in many cases, among which may be mentioned: when any of the prin- cipal residential rooms are in the cellar ; when the cellar is so built that the upper surface of the floor of the story over it is more than 1.5 m. above the sidewalk or court; when any of the principal resi- dential rooms are in the roof story. But there is no such diminution in the number of stories on account of the construction, in conformity to the rules of the building ordinance as to height, roof angle, etc., of rooms in the roof story not connected with one another which do not form an apartment and do not together cover more than half the floor area below the joists. There are also exceptions for single houses and houses of small apartments. OPEN SPACE In General. On every lot a given proportion must be left free of buildings, the proportion varying from Mo to %o. In calculating the obligatory amount of open space, the usual projections into or over the court space are allowed without increas- ing the amount so required; and also a proportion of the lot area varying in the different zones and classes from ^ to % may be covered with subsidiary buildings not more than 5 m. high, the land so covered being nevertheless reckoned as open space. In zone I, however, there is no such provision. With regard to open space on corner lots see corner lots, p. 255. Where a lot is developed exclusively with (a) a one, two, three or four family house; or (b) with a house with not more than two 254 THE LAW OF CITY PLANNING AND ZONING apartments on a floor; or (c) with a "house of small apartments" with not more than three apartments on a floor, if in each case the house does not extend back from the building line to a greater depth than 20 m., the required open space is, as a rule, reduced. This rule does not apply to zone I and to it there are exceptions in zone V. Rear Building Lines for Entire Blocks. Where, on petition of the property owners interested, the building police, after hearing the city authorities, has established for an entire block, rear building lines enclosing in the interior of the block not less than a given pro- portion of the total area, varying in the different zones from ->io to %o, this proportion may, as a rule, be fixed as the proportion of open space for the entire block; and all but the interior space so enclosed built over. In zone V, if the interior is devoted to common parks, playgrounds, etc., and the proportion is 9io, an extra story (3 in all) is permitted. Side Setbacks. Buildings must, as a rule (when zone and class rules permit), be placed on the neighboring boundary, or with a set- back from it of at least 2.5 m. ; and buildings on the same lot (except as zone and class rules provide otherwise) must be built against one another or with a space between of at least 2.5 m. Detached Building in Zones and Classes Where Attached Building Is Permitted. In such cases there must be to at least the depth of 20 m. from the building line, a minimum side setback from the neighbor's boundary of 10 m. ; or, if a "common setback space" is established, a minimum setback on each lot, which, for a building height on the setback space of from 7.5 m. to 15.5 m. and more, is from 2 to 5 m. These heights must be maintained for a distance of 7 m. from the setback space. Offensive Enterprises. Wherever situated, such enterprises must be located in rooms with specially and permanently closed windows on the street, or with a set back from it of at least 4 m. Light Profile. Buildings extending back from the building line more than a given depth must, except in classes C and D, keep within a given side and height profile so as not to obstruct their neighbor's side light. In class B v and in the zones outside the classes, this rule does not apply when the neighbor is under the legal obligation not to construct required windows giving on the lot in question. The depth back of the building line at which this obligation to maintain the light height and profile begins, varies in the different zones and classes from 20 to 40 m., and the height from 20 to 5 m. Narrow Lots. As a rule only lots with a frontage of at least 7 m. on a public street at least 7 m. wide, may be built up; but in certain parts of the older city this rule does not apply to rebuilding; and for one family houses and small houses built as front houses, a lot frontage of not less than 5 m. is permissible. Corner Lots. A corner lot is deemed to be bounded on its two 'ZONING IN EUROPE 255 sides that are not street fronts, by two lines of equal length called "normals" which shall start at a common point and run to the street or building lines. These lines vary in length in the different zones and classes where they occur from 24 m. to 40 m. Rules are given for carrying out this system and meeting exceptional cases. On corner lots with an angle of from 135 to 100 degrees, seventy- five per cent, of the area may be built over; with every 5 degrees decrease of the angle, the permissible area to be built over increases one per cent; but in no case may the lot be built up deeper than 16 m. There are special rules for certain lots next to corners. Where a corner lot is in more than one zone or class, the corner house up to 20 m. from the corner may have the number of stories allowed for the zone or class with the most liberal provision. DIVISION OF CITY INTO ZONES AND CLASSES The entire city is divided into five zones in which the rules in regard to the height, area and number of stories of buildings varies. In these zones are areas covered by special rules as follows : Class A Inner City. In the inner city and on chief business streets outside the inner city, the building police may allow certain exceptions to zone rules in the interest of business. These exceptions allow a greater intensity of building. Classes B I-VIII Residential Classes. By special police ordi- nance certain streets, parts of streets and districts may be designated as residential areas. These areas are subject to the zone rules as modified by the rules of the building class to which they are assigned. In classes B I-VI attached or block, in classes B VII-VIII de- tached building is provided for. Protected Districts. By special police ordinance certain districts may be designated in which the location and prosecution of offensive industries is limited. These districts are called "protected districts." Residential streets and parts of streets (classes B I-VIII) are pro- tected districts without further designation. Class C Industrial Class. In districts or on streets designated as industrial, the rules of zone I apply, and in special cases the build* ing police may allow a greater intensity of building. See also "offen- sive enterprises," p. 254. Class D Rural Class. This class is intended for rural develop- ment in which rural buildings only shall be built. On permit from the city authorities after hearing, many of the requirements of the building ordinance and of the zone in which the land is situated may be waived in certain particulars and to a given extent. The greatest permissible number of stories is two and the maximum height 7.5 m, 250 THE LAW OF CITY PLANNING AND ZONING E ZONE RULES Zone I The minimum required proportion of lot area to be left open is Yy, but if there are rear buildings with residential apartments on the lot, l /t ; or, if there are no buildings on the lot higher than 10 m. or with more than two stories, J4- The maximum number of stories is 4; but for rear buildings with residential apartments 3. The maximum height is 20 m. The maximum height of light profile on the neighbor's boundary is : at a depth of from more than 20-30 m. 20 m. at a greater depth, 14 m. The maximum height of rear buildings, etc., is court width plus 5111. ; or, if a common court is established, combined court width plus 3 m. Zone II The minimum required proportion of lot area to be left open is M; but if there are rear buildings with residential apartments on the lot 9io. The maximum number of stories is : with streets under 13 m. in width, 2; with streets without front gardens and a street width of at least 20 m. ; or: with streets with front gardens and a street width of at least 20 m. ; or a width between building lines of at least 26 m. and a street width of at least 15 in., if (except for corner houses with at least four apartments to a floor) there are no large tenement houses on the street : to a depth of 20 m., 4; beyond that depth, 3; on all other streets, 3; but for lots with rear buildings with residential apart- ments 2. Where the front house has four stories, rear houses are not permitted unless there is a minimum space between equal to the height of the front house. ZONING IN EUROPE 257 The maximum height is 16 m. ; except that where four stories are allowed it is 20 m. The maximum height of light profile on the neighbor's boundary is: at a depth of from more than 20-30 m. 16 m. at a greater depth n m. The maximum height of rear building, etc., is court width plus 5 m. or if a common court is established, combined court width plus 3 m. Zone III The minimum required proportion of lot area to be left open is %o. The maximum number of stories is with streets without front gardens and a street width of at least 20 m. ; or with streets with front gardens and a street width of at least 20 m. or a width between building lines of at least 26 m. and a street width of at least 15 m. if (except for corner houses with at most four apartments to a floor) there are no large tenement houses on the street to a depth of 20 m. 4; to a depth of from 20-25 m - 3 ; beyond that depth, 2; on all other streets, to a depth of 25 m. 3; beyond that depth, 2. For lots on all streets for which to a depth of 25 m. the maxi- mum number of stories is 3, the maximum on the estab- lishment of a common court and in the case of double houses is, to a depth of 30 m. 3; beyond that depth 2. Where the front house has four stories, rear houses are not permitted unless there is a space between at least equal to the height of the front house. The maximum height is 16 m. ; except that where four stories is allowed it is 20 m. The maximum height of light profile on the neighbor's boundary is: at a depth of from more than 20-30 m. 12 m. ; at a greater depth, 8 m. 258 THE LAW OF CITY PLANNING AND ZONING The maximum height of rear buildings, etc., is court width plus 5 m. or, if a common court is established, combined court width plus 3 m. Zone IV The minimum required proportion of lot area to be left open is on 68 named streets or parts of streets: when the height of the buildings on the lot is not more than 8m. J4 ; when not more than 8-12 m. J-$; when in excess of 12 m. $4o. On all other streets 9io. The maximum number of stories is for lots on streets under 13 m. in width, 2, for lots on all other streets: to a depth of 25 m. 3; beyond that depth 2. The maximum height is 16 m. The maximum height of light profile on the neighbor's boundary is: at a depth of from more than 20-30 m. 12m.; at a greater depth, 8 m. The maximum height of rear buildings, etc., is court width plus 5 m. ; or if a common court is established, combined court width plus 3 m. Zone V The minimum required proportion of lot area to be left open is Tio; but if on the lot. there is only a small house it is J4; and if only a front house extending back from the building line not more than 16 m. it is 9io. The maximum number of stories is a. The maximum height is 13 m.; but wherever the maximum number of stories is 3, it is 16 m. The maximum height of light profile on the neighbors' boundary at a depth of over 20 m. from the building line is 8m. The maximum height of rear buildings, etc., is court width; or if a common court is established combined court width. ZONING IN EUROPE 259 F B OR RESIDENTIAL CLASS RULES Classes B I-VL General Rules Attached building is allowed. Only front houses and (except in B VI), subsidiary buildings strictly for domestic uses, such as stables, servants' dwellings, garden houses, ar- bors, etc., are permitted. Front houses except those next to corner lots, must not extend to the rear property line. Class B I Intended for one and two family houses, on lots without rear building line. Only one and two family houses, or double houses with at most 4 apartments, allowed. Two family houses must have a front width of at least 12 m., double houses, of 22 m. Maximum number of stories 2. Class B II Intended for one and two family houses on lots with a rear building line. Only houses with at most 2, double houses 4, apartments allowed. Must not extend more than 16 m. back from the building line, except one story sub- sidiary buildings, which may go back 20 m. Maximum number of stories 2. maximum building height, 13 m. Class B III Intended for one, two and three family houses, on lots with- out rear building line. Only houses with at most 3, double houses 6, apartments allowed. Maximum num- ber of stories, 3. Class B IV Intended for one, two and three family houses on lots with rear building line. Rules the same as in Class B II, except that the maximum number of stories is, 3. Maximum building height when constructed with at most 3, double houses 6, apartments, is 16 m. 26o THE LAW OF CITY PLANNING AND ZONING Class B V Intended for apartment houses and must have at most 2 apartments in any one story. In a number of ways, a greater building intensity is permitted. Class B VI Intended for tenement houses and houses of small tene- ments. At most 2 apartments to a floor, or for a house of small tenements, 3 such apartments. Subsidiary build- ings may be erected for shops, etc., of those dwelling on the lot, for such pursuits as in the judgment of the building police will not cause dangerous or annoying odors, smoke, noise, etc. Classes B VII-VIII. General Rules Detached building is required. The general rules for the at- tached classes B I-IV apply with the following additions: Only one and two family houses and double houses with at most four apartments are permitted. The maximum number of stories is two. Buildings on the side toward the required side setback space must receive appropriate architectural treatment and finish. The side space must not be used for storage but, with the exception of necessary entrances and exits, must be kept as an ornamental garden. The usual projections within much the usual limits into and over this space are allowed. Groups are allowed, but only when security is given that all the houses will be erected at the same time, and the group as a whole will receive proper architectural treatment. As a rule not more than three houses, none of which may be double houses, are allowed in a group. Alterations and reconstructions, including painting of the faqade, are subject to the approval of the building police. Common courts are allowed. At street corners where detached and attached classes meet, the building police may allow a continuation of attached buildings into the detached class, but not for more than three houses beyond the corner. Class B VII (a) Intended for one and two family houses on lots without a rear building line. Two family houses must have a minimum width in front of u in. and double houses of 22 ni. (fr) Except as provided below, buildings must maintain, to a depth of 30 m. from the building line, a side setback from the neigh- ZONING IN EUROPE 261 boring boundary, of 5 m. ; but beyond that depth subsidiary build- ings are subject only to the setback provision mentioned under C. (c) For a group of three houses the side setback is 10 m. ; for two houses or a double house 8 m. (rf) The side space for a house or group may be decreased to not less than 3 m. when proportionately increased on the other side ; as also when a common setback space is established if proportion- ately increased on the other lot. (e) It may be decreased by 2 m. (but in no case to less than 3 m.) when (except the sides of the front building) within 7 m. of the side space the neighboring building does not exceed 7.5 m. in height. (/) The minimum proportion of open space is 7 Ao. Class B VIII (a) Intended for one and two family houses on lots with a rear building line. For 4 m. from the neighbor's side boundary, the build- ing must not extend back from the front building line more than 16 m. ; or at a greater distance from the neighbor's side line, more than 20 m. ; but subsidiary buildings may to the entire width of the lot extend back 20 m. (6) The provisions of B VII (&) apply except that the depth is 25 m. for 3 m. from the neighbor's side line. (c) The minimum side space for two houses is 4 m. ; for three houses 5 m. By exception groups of not more than five small houses may be licensed, in which cases the side setback for the group is : If the group consists of not more than three such houses 2 m. ; " " " " " " " " four " " 3m.; " " " " " " " " five " " 4 m. Double houses must maintain a side setback of 4 m. or if erected as small houses 2 m. (rf) The provisions of B VII (d) apply except that the minimum side space is 2.5 m. (e) Except to groups of small houses, the provisions of B VII (e) apply; bnt the decrease is 1.5 m. and the minimum 3 m. (/) The minimum proportion of open space is %o. but for lots with one small house only, J4. No. 4. A COMPARISON OF THE COLOGNE, FRANKFORT, KARLSRUHE AND MUNICH ZONING PROVISIONS For facilitating comparison between them, the zoning provisions of the four cities named are here given in tabular form. All but the Cologne table are translations of the tables in the official or standard 262 THE LAW OF CITY PLANNING AND ZONING editions of the building ordinances in question; and the Cologne table was prepared from the Cologne ordinance in form to correspond with the other tables. No. 1. COLOGNE BUILDING CLIMES Ordinance adopted Avgutt 9, 1913 cuw 1 Char- acter Maxi- mum No. of stories Maxi- mum height in meters to top of cornice Minimum per cent of open (pace on lot* Groups maxi- mum No. of house* and length of front Mini- mum tide space in meters* Depth of front garden (g) and width of side space (s) not reckoned as open space Inner Corner ia Ib at- tached 44 44 44 44 44 4 + R 44 20 25 20 (f) m. 35 25 Ic 50 80 Id II* 80 3 + R 15 50 80 lib 60 Ilia 2 + R 12.5 60 30 () 6 m. Hlb C + 2 &R 15 70 IVa de- tached 2&R 12.5 60 30 2 to 80 m. 6 (g) 6 m. IVb C + 2 *R 15 3 and 4 to 50 m. 6 (g) 5 m. (a) 6 m. Va "vb groups 44 M 2+R 44 12.;, 50 30 7 to 70 m. i (g) 5 m. 60 Vc C + 2 &R 15 I (g) 5 m. VI de- tached 3 + R 15 60 30 2 to 45 m. e () 6 m. m. = Meter a. R. = Roof story, between the top story over the attic, over the joisU. C. = Cellar story. 1 The development of a lot in more than one building etnas, is governed by the provisions which, in number of stories and open space, require the less intensive use. 1 Business structures, with no dwelling* in them but for janitor, etc., where under the existing regulations the street width permits may have 6 stories (in addition to cellar nd roof story) on condition that they leave 30 per cent (comers 25 per cent) of lot open ; amendment of Mar 1. 1919. The same amendment makes certain modifications of structural requirements for small houses, and one-family house*. There are also rear building lines, in certain caaea. Where an interior common play- ground, of at least 5 per cent of the ground are* of the block, is provided and perma- nently secured by agreement with the City, the area of each lot may be covered by building* up to 5 per cent in excess. 4 In all classes, buildings must, im a rule, wherever building on the boundary line ii permitted at all, he located titlur <>n (hat line, or with a setback from It of at least S.5 meU-n, and the same space must be preserved between buildings and part* of building* on the same lot. not built against one another. Compart the Frankfort pro- visions in following UUc. No. 2. Fi liuildin I D A Inner City Mixed Dis- trict of the Inner Zone Residential District of the Inner Zone Building Zones or Classes Attached Building "Character" of Building See E Building groups up to 80 m. 3 m. side space In general Street Street width plus 2/3 front Height of Front width Buildings + 2 m. or 8 m. Maximum 20 m. 18 m. lm. Part of streets up Interior lot 1/4 4/10 og Double and rear dwell- to 14 m. only 2, Open spaces on the Lot - II. a ings, 10 sq. m. and dwell- ings with and on wider streets more than 4 only 3 Corner lot 1/8 3/10 , rooms, an ad- stories, w ditional 1/20. under restric- In general Width of Court in Width of Court in Width of Court in tions of Police Height of Rear Buildings front + 2m. front front when 30 m. distant from build- Ord. of Apr. 8, 1910, ing line. Sec. 12, Maximum 20 m. 13 m. 13 m. I. Front Build- 6 4 + l/ D. 4 + 1/2 D. ings Number of resi- dential stories Rear Build- ings 4 3 + D. 3 + D. When rear dwelling er Norn: merits. 1/10 additional D. = Roof story on which residence is permitted. m.= Meters. In the residential district of the inner, outer and rural district zones, as well as in the sub There are parts of the factory district, to which the provisions of Sec. 12. No. VI, 1-2, spj THE MAIN Classes F B c G H of the Mixed trict of Dis- the Residential district of Residential District of Suburban Factory I rural dis- trict zone the Outer Zone the rural district zone DOOM District District ing on front icrwise, 80 m. :*. Building groups up to 80 m. 3 m. side space. 4 m. side space. Groups up to 80 m., only by exemption, and under certain conditions. Detached building. Double houses permitted by exemption. Attached building. Street width plus 2/3 front garden depth Street width + 2 m. Part of Zone in wh ich 16 m 18 m. 16 m. 16 m. 20 m. in build- ings 5/10 o c Double and rear houses Part of Zone in 5/10 "8 g d with 3 stories, the roof , 1 > a "Z !* 10 sq. m. and dwell- ings with which re- strictions of Sec. 12, ^ > a 15 * 7/10 of Building lot At least 3/10 if area be- hind build- story ii more than No. II, 1. "3 5 _c ing line. not to 4 rooms, an A. H. of M 2 be fitted up for 4/10 additional 1/10 Police Ord. of Apr. 8, 4/10 JS Q inde- 1910 ap- pendent Width of Court in front plies. Width of Court in front when Width of dwell- When 45 m. 45 m. from building line. Court in ing, or from Build- Independent front + restric- ing line. dwellings for 2 m. tion of rent, for- Sec. 12, bidden. I, No. IV, of 9 m. 9 m. 9 m. 6 m. 20 m. Police Ord. of 2 + D on Streets up to 2 + D on Streets up 2 + D on Streets up to 18 m. ; 2 + D Number of stories not Apr. 8, 18 m. ; else- to 14 m. ; elsewhere 3 + D. limited. 1910, where 3 + D. elsewhere Dwellings applies. 3 + D. only for owner and superintend- 2 + D 2 + D 2+D 2 + D 1 + D ing staff. more than three apart- rft free from structures. district, manufacturing structures are forbidden, .re streets, running through various zones or classes, on which four stories are permitted. ZONING IN EUROPE 263 w > S >H 355 10 CO (M H IO o 2 rH rH - (M G*J 1 eo ,-q IM u * rH 2 CO ?i rH CO ^ rH rH ** rH o rH o rH S a CO CO IM CO rH CO |H A* e 0> rH rH to 10 m V o rH rH OJ IM O 1 o IO H9 O> CO M >O IM o CO j. S M rH O I-H IM Si CO to to ^, CO C-l w IM c eo t- CO rH rH o rH H (N 00 >a CO 09 IO M o CO t- M rH i-H rH . rH rH T CO to iH ( permissible height, front permissible height, rear mum area in frac- Groups greatest length Side Ml least stories stories buildings buildings tions of lot area attached 1 Bible r >/ 4 p V f 2 " 4 4 18 in. 18 m. 1/3 3 " 4 2 18 in. 12 m. 1/3 4 I S 2 15 m. 12 m. 1/3 15 " 2 ! 12 m. m. 1/3 detached 4 4 20 m. 20 m. i/st 45 m. 7 m. 7 " 4 2 18 m. 12 m. l/3t 45 m. m. J8 " 3 2 15 m. 12 m. 1/3 36 m. 10 m. 19 " 2 ! 12 m. 9 m. 1/2 36 m. 10 m. / Residential buildings; others, no limit. > Private buildings, not more than equal to width of street and front gardens ; but on streets less than 12 m. broad, 12 m. is allowed. The maximum height for rei- ili 1. 1 M! buildings ia 22 m. Without independent residential apartments to rent f l.itflit courts not allowed. ) In blocks in which this class is found, offensive industries, etc., not permitted. | Sufficient for health. tc. GENERAL NOTE: Except in clam 1. front ami side buildings. In so far M they exceed 22 m. in depth, are regarded as rear buildings. Except in class 1. the roof story may be utilized for residence only to half iu area. In industrial areas, exception* are allowed for industrial building*, m. = meters. CHAPTER III ZONING IN CANADA AND THE UNITED STATES Early Zoning on American Continent. Many years be- fore zoning, as we now understand it, was employed anywhere on the American continent, measures embodying something of the zoning principle, although not known as zoning regulations, were passed, and restrictions based on them imposed, both in Canada and in the United States. In 1899 a Federal statute since frequently amended 1 was enacted limiting the heights of buildings by zones in Washington, D. C. ; and in 1904 Toronto under sees. 409-410 of the Ontario Municipal Act, began to create residential and industrial districts. In Canada since 1909 zoning along English lines has been authorized in a num- ber of Provinces by town planning acts modeled on the English act of that year. 2 Lately, how r ever, to some extent, Canada has authorized zoning ordinances like recent zoning regulations in the United States. 3 In this country, prior to the zoning of New York City in 1916, only acts allowing the less complete sorts of zoning were passed. Thus during this period in Baltimore 4 and Indian- apolis 5 a height limit for a small area, lower than the limit *30 U. S. Stat. 922, ch. 322 (March I, 1899) ; 32 ibid. 102.2; 33 ibid. 14, ch. 158 (Feb. 16, 1904) ; 36 ibid. 452, ch. 263 (June i, 1910). See also Building Regulations of District of Columbia. 3 For a list of these acts, see p. 510, note 27. 3 See, for instance, the amendment of the Municipal Art of Ontario, Laws, 1921, ch. 63; also the Manitoba Town Planning Act, 1916, ch. 114 sees. 5, 6, and 7, and schedule A, for the zoning of central area ; and the Saskatchewan Town Planning Act, Rev. Stat. 1920, ch. 104 Part n, for the approval by the municipality of sub-divisions beyond and within two miles of its limits; reference to which will be found on p. 313. * Laws Maryland, 1904, ch. 42, held to be constitutional in Cochran v. Preston, 108 Md. 220 (1908). 5 By ordinances passed in 1905 and 1912; see Report of Heights of Buildings Commission, New York City, Dec. 23, 1913, p. 35. 265 a66 THE LAW OF CITY PLANNING AND ZONING for the city as a whole, was fixed ; in Boston 6 height districts covering the entire city were created, and in several cities resi- dential districts were established from which were excluded certain industries and, in some cases, also business and even multiple dwellings. As a rule, in these regulations, the prior petition or subsequent consent of a proportion of the property owners of the district was a requisite to its creation. 7 This provision obviously makes the use zoning of the city in accord- ance with any plan difficult if not practically impossible; and unless action by the city in the general interest is also required, such zoning is illegal. 8 If the districts could be established by the consent of the property owners alone, this would in effect be delegating to them the power to establish municipal regula- tions, which obviously cannot legally be done, although the 'Special Acts 1904, ch. 333; 1905, ch. 383; 1907, ch. 416; 1912, ch. 582; 1914, ch. 786; 1915, ch. 333; 1919, ch. 156. For a full account of the Boston regulations, see the Report of the Heights of Buildings Commission, just cited, p. 134. ' See Report of Heights of Buildings Commission, New York City, 1913, P. 38. Ordinances admitting into or excluding from a locality a given use upon the consent of a percentage, less than all, of the property owners of that locality is void as an improper delegation of governmental power. California. In re Quong Wo, 13 Fed. Rep. 229 (1882) ; Ex parte Sing Lee, 96 Cal. 354 (1892), Coon v. Bd. of Public Wks., 7 Cal. App. 760 (1908); see Sam Kee v. Wilde, 183 Pac. Rep. 164 (1919). Colorado. Denver v. Rogers, 46 Col. 479 ( 1909) ; Curran Co. v. Den- ver, 47 Col. 221 (1910) ; Willison v. Cooke, 54 Col. 320 (1913). Delaware. Dangel v. Williams, n Del. Ch. 213 (1916). Illinois. Chicago v. Gunning System, 214 111. 628 (1905) ; People ex rel. Friend v. Chicago, 261 111. 16 (1913). Kentucky. Telford v. Belknap, 126 Ky. 244 (1907). Missouri. St. Louis v. Russell, 116 Mo. 248 (1893); Hays v. Poplar Bluff, 263 Mo. 516 (1914). Xsbraska. State v. Withnell, 78 Neb. 33 (1907). / irginia. Eubank v. Richmond, HO Va. 749 (1910), 226 U. S. 137 (1912). ll'isconsin. State ex rel. Nehrbass v. Harper, 162 Wis. 589 (1916). As a prerequisite to action by the public authorities or as a waiver of a prohibition, a provision for consent is valid. Delaware. Myers y. Fortunate, no Atl. 847 (1920). District of Columbia. Weeks v. Heurich, 40 App. D. C 46 (1913)- Illinois. City of Chicago v. Stratton. 162 111. 494 (1896); People ex rel. llusching v. Ericsson, 263 111. 368 (1914) : People < 'lor v. Village of Oak Park, 266 111. 365 (1914) : Cusack Co. v. City of Chicago, 367 111. 344 (1915) ; 242 U. S. 526 (1917). New York. In re Russell, 158 N. Y. Supp. 162 (1916). Washington. City of Spokane v. Camp, 50 Wash. 554 (1908); Shep- ard v. Seattle, 59 Wash. 363 (1910). ZONING IN CANADA AND THE UNITED STATES 267 favorable action of the property owners may be made a pre- requisite to action by the municipal authorities ; and in this way, in most of the regulations, action by these authorities in the general interest is in fact provided for. Los Angeles Ordinance. The most fully zoned city of the earlier period was Los Angeles, California. The Los Angeles zoning rules are of interest both in themselves and because of their influence upon subsequent zoning on the Pacific Coast. The many ordinances regulating different features of the city, in various sections of it, were passed from time to time, the first being enacted in 1909. By 1915 they had come to cover, in one way or another, the entire city. They divided it into one large residence district, in which only the very lightest of manu- facturing was allowed; twenty-seven industrial districts, in which all industries were permitted; and about a hundred "residence exception" districts, so called because, although scattered throughout the residence district, all but the heavy and objectionable industries might be pursued in them. Of most interest were the provisions with regard to the residence exceptions. Classified as such were the business sec- tion of the city, known as Fire District No. I, and the extensive port district, entirely undeveloped and only recently annexed to the city. Next in size was a district about a half mile square, and next to that, one covering two blocks. The other and typical residence exceptions, each consisting of one or at most two city lots, equaled in the aggregate less than one per cent of the residence district in which they were situated. If any person wished to establish an industry not of the heavy or objectionable type in the residence district, the city might and in practice always did require him to obtain the consent of sixty per cent of the owners of property affected. Objectionable in- dustries, already established in the residential district, were compelled to remove or cease operation; but in other respects the zoning was not retroactive. Since 1915 the regulations have been frequently amended and many new ones passed. 9 * Districts rarely if ever found elsewhere, such as cow districts, under- taking districts, motion picture districts, public garage districts, as well as billboard districts, and residential and industrial districts, have been cre- ated in this way by ordinances passed from time to time. 268 THE LAW OF CITY PLANNING AND ZONING New York City Zoning. 10 The first city in the United States to adopt a systematic and complete plan of zoning cover- ing practically the entire city, both as to use and as to bulk, was New York. In the New York City zoning resolution the street in all cases is taken as the districting unit. Based on it, the city is divided into residence, business and unrestricted use districts the unrestricted districts being intended especially for manufacturing and height and area bulk districts. The use, height and area districts, although studied with reference to one another, are laid out each with its own boundaries. The resolution is not retroactive but applies only to the erection of future, and the change in use of existing, structures. The Use Districts. In residence districts only residences (including tenements and other multiple dwellings), various public and semi-public buildings, and farming and nursery structures, with their usual accessories, are permitted; a busi- ness, a use not on the same lot, or a private garage for more than five motor vehicles, not being considered an accessory. In business districts both residence and business uses are permitted, but forty-four industries specifically, and all others generally, which are noxious or offensive by reason of the emis- sion of odor, dust, smoke, gas or noise, 11 and other industry in excess of 25 per cent of the total floor space of the building, or the equivalent of the area of the lot, are excluded. This lim- M The administrative features of this and the other zoning ordinances are considered in Part VII Chapter III. u It will be noted that, while in many zoning ordinances the list of particular industries excluded as objectionable from a business or light industry district, and the general provision so excluding them, are both placed in the same paragraph, in the New York regulation they are separ- ated as much as possible by being put into different paragraphs (see the New York resolution, sec. 4 (a), and (b), to be found on p. 307 of this work). The New York method is the preferable one. There is a principle of statutory interpretation, often referred to as the doctrine of "ejusdent generis," deep rooted in our law, that "When general words follow an enumeration of particular things, such words must be held to inclu York Resolution and its Influence upon Design, in the "Architectural Record." & pp 193-217. All these articles contain plans and illustrations. ZONING IN CANADA AND THE UNITED STATES 277 Original Features in Later Ordinances. Not all the variations in later ordinances from the New York model are corrections of more or less obvious shortcomings; some of them are new ventures in the field of zoning. In some ordi- nances recently passed a new area limitation, varying by dis- tricts, which restricts the number of families that may be housed on an acre or given fraction of it has been adopted. 24 The avowed purpose of this limitation is to decrease conges- tion an altogether worthy one. The same object could be attained by increasing the requirements with regard to open space. It cannot be regarded as settled which of these methods of reaching the same general result will secure the best results. In one or two ordinances residences are altogether excluded from the heavy manufacturing districts, 25 as is sometimes done in Germany. 26 If the district is kept small, this may be altogether advantageous ; although it would seem to involve the creation of a neighboring district, devoted to housing, which could be made industrial later, if expansion of the original in- dustrial district became necessary. If, however, the industrial district is large enough to allow expansion, it would be a hard- ship and an economic waste to keep the owners of land from using it (until needed for manufacturing) for the only pur- poses for which it could be utilized. On the Pacific Coast the tendency of zoners is to create a greater number of use districts than is ever found in the East. Most interesting there are the districts for public and semi- public buildings, often limited in area to the lot a particular building occupies. In other systems, in so far as such build- 24 See, for instance, sees. 26.63 and 26.64 of the Milwaukee ordinance, given in full on p. 323 of this work. Recent statutes in some cases (Laws, Mich. 1921, No. 207, sec. 3; Mo., 1921, p. 481, sec. 3, approved April i) expressly authorize localities to include such a provision in their zoning ordinances. Milwaukee, however, and other cities in states in which there is no such express authorization, have enacted such a provision in their zoning ordinances, and would seem to be justified in doing so under the power, which their state laws do give them, to pass area zoning regulations. 33 See, for instance, the Alameda ordinance, art. i, sec. 10, given in full on p. 341 of this work; or sec. 5 of the Newark, New Jersey ordi- nance. * See p. 214. 278 THE LAW OF CITY PLANNING AND ZONING ings are zoned, they are merely assigned to some district with- out being definitely placed, or are located by special license. A recent ordinance for a small municipality which is prac- tically a residential suburb of a neighboring metropolis, 27 excludes heavy industry entirely from the municipality. If the suburb should be zoned in this way in a zone plan for the entire metropolitan area, it is difficult to see why it should not be so restricted in a zone plan for the suburb alone. Evi- dently in many respects zoning theory in this country is still in process of evolution. 28 " White Plains, N. Y. Another method of accomplishing the same result is to establish, as the sole heavy industry district, areas already fully occupied and therefore incapable of receiving other industrial es- tablishments. " In 1916 the City Club of New York advocated the creation of a fourth or semi-residential use class in New York City, to consist of busi- ness on the ground floor and residences above ; see Report of Commission on Building Districts and Restrictions, New York City, 1916, pp. 93, 206. 209. This development is common in big cities, the buildings sometimes being very expensive apartments, but more often moderate and low priced tenements. In territory classified as business districts, residence is af- forded little protection, and yet the great mass of tenement dwellers must live in them. There is no reason to question the legality of zoning along horizontal any more than along vertical lines, if for the public interest. Such a district has been provided for in the Elizabeth, New Jersey, zoning ordinance, adopted in 1922. Port Zoning. The Port Committee of the City Club of New York, in a report dated July 2, 1918, made the following suggestion with regard to the zoning of the port of New York : THE COORDINATION OF THE PLAN OK THE PORT WITH THE GENERAL CITY PLAN BY THE DEVELOPMENT OF A SYSTEM OF ZONING. The water's edge should be zoned with the same basic principles as governed the adoption of the zone system for the city's uplands. It is quite as important that similar industries using the same type of factories, serving a similar clientele, and delivering goods to the same warehouses and factories be located together as it is that residences, industrial and business buildings be grouped. The economical development of the Port requires the coordination of the uplands with the nearby piers. There can be no permanency to the plan of the Port until a complete system of zoning has been developed. Zoning of the Port of New York should 1. Prevent useless hauling and handling of freight by developing union classification and transfer yards outside of the Island of Manhat- tan. 2. Relate docks to receiving nnd classification yards so that so far as possible steamers may be loaded directly with a minimum of lightering of cargo. 3. Provide for the development of warehouses in connection with the classification yards and piers for the temporary holding and classifi- cation of goods in transit. ZONING IN CANADA AND THE UNITED STATES 279 Discretionary Powers. There is a tendency at present to make the location, extension and change of structures of many sorts and the uses in them dependent upon the consent of the officials administering the ordinance. It has always been regarded as inexpedient in this country to give discretionary powers to those in authority when it is possible by statute or ordinance, or rules under them, to lay down general principles governing the matter ; and it should not be forgotten that, un- less a structure or a use is objectionable or may be so if not regulated, limitations of this sort with relation to it may be illegal. 29 Establishing Setbacks by Zoning. In many zoning ordi- nances there are provisions for the establishment of front, side and rear setbacks, varying in the different districts. There are many decisions with regard to setbacks, employed before the days of zoning in this country, holding that a setback can- not be imposed under the police power and without compensa- tion. 30 These setbacks were, it is submitted, radically different from the setbacks now contemplated. The pre-zoning setback of these decisions requires the land owner to leave a given part of his land open; the zoning setback in effect merely prescribes the location of a part of the space which must be left open irre- spective of the setback. The pre-zoning setback, affecting as it does a strip of land of the same width irrespective of the size and shape of the lot, is a burden which bears unequally upon the owners of lots of different sizes and shapes ; the zon- 4. Provide facilities for store door delivery wherever possible. 5. Relate the wholesale food markets to transportation systems and with each other. 6. Develop types of piers adopted for various classes of business. 7. Develop grain and other bulk cargo terminals with modern ma- chinery. 8. Preserve parts of the Port near dwellings and not needed for com- mercial uses for park purposes. 29 McQuillin, Municipal Corporations; sec. 728, and same section in sup- plement issued in 1921 ; see also Ingham v. Brooks et al., 95 Conn. 317, and reference to same in Windsor v. Whitney et al., 95 Conn., 357 (1920) ; Smith v. Hosford, 106 Kans., 363 (1920); Village of South Orange V. Heller, 92 N. J. Eq. Rep. 505 (1921). With regard to the tendency, equally dangerous, of making the application of zoning regulations dependent alto- gether upon the consent of property owners, see above, p. 266. 30 St. Louis v. Hill, 116 Mo. 527 (1893) ; Fruth v. Board of Affairs, 75 W. Va. 456 (1915). 28o THE LAW OF CITY PLANNING AND ZOXIXG ing setback, since it does not increase the required percentage of open space on the lot, if a burden, is equal for all; or if unequal does not require more than the minimum open space necessary for health. The pre-zoning setback is an isolated provision ; the zoning setback, especially if a part of a compre- hensive scheme, is an element of a plan for the general advan- tage. It seems reasonable to suppose that, if zoning is valid at all, such setbacks imposed under the police power as a part of a zoning system will be upheld by the courts. 31 Zoning under Police Power. It is a practical necessity that zoning be done under the police power of the state, without compensation. In a few cases, statutes have been passed au- thorizing zoning by eminent domain, with damages to those claiming to be injured, to be assessed upon those benefited. 32 Under these statutes little or no zoning has been done; all the zoning regulations having employed the police power. The reason for this is apparent. Zoning regulations for any given community cover a broad expanse of territory and affect a vast number of interests. Under eminent domain proper notice must be served in due form on each of the parties in interest, and each must be given the usual opportunity of pre- senting his case for damages. In spite of the fact that, as a rule, there are no damages, or that, if there are, they may be collected from other property owners by other proceedings in due legal form, there remain the delays always incident to such proceedings, which in this case would be numerous and ex- pensive; and the claims for damages, which, whether justifi- able or not, must be disposed of at the same cost of time and money. Moreover, the same right to claim damages would accrue to the landowner whenever there was a change in the regulations or the districts created under them. This would render modifications in the system, needed to adapt it to devel- opment and growth in the community, practically impossible, * For an example of such setbacks, see sees. 26.62, 26.63 and 26 64 of the Milwaukee ordinance, given in full on p. 323 of this work ; also Cleve- land, Ohio, Ordinance No. 52247-AB (passed Dec. 6, 1920), especially interesting because of the provisions for a board of appeals to vary its terms. "See Tables of Statutes, ZONING IN CANADA AND THE UNITED STATES 281 and thus stereotype any zoning that the community succeeded in obtaining, making it a very doubtful blessing. Practically, therefore, zoning must be done by the simpler methods possible under the police power, in which every owner can and should be given an opportunity to be heard, without the expenses, formalities or delays of legal proceedings. 33 Power of Local Governments to Zone. A local govern- ment, in order to pass valid zoning ordinances, must possess the police power of the state in sufficient measure for the pur- pose. Local governments in this country have only such powers as the state has given them. In some states the con- stitution or statutes grant more or less generously to local com- munities the power to enact ordinances for their general wel- fare, thus endowing them with the police power for local uses. This general grant may be sufficient to permit the locality in question to zone; and certainly is so if the community has the full police power in local matters. It is, however, becoming more and more the custom to pass laws explicitly conferring the power to zone ; and it should not be forgotten that this fact is rapidly raising a strong presumption in law that a commu- nity cannot zone without such express statutory authority. Constitutionality of Zoning. Building regulations under the police power of necessity limit the land owner more or less in the use of his land ; and for these limitations no compensa- tion is provided. The validity of such regulations, whether they are the same for the entire city or vary by districts, is dependent upon the question whether they are constitutional. The police power may be used for the promotion of the public health, safety, morals and order, and for the general welfare. Health, safety, morals, and order are words of definite meaning and comparatively limited content, and their 33 The first Illinois zoning law (approved June 28, 1919) unlike any other making use of the police power, made elaborate provision for per- sonal notice to each property owner affected, much as, of necessity, is done under eminent domain. For this reason the statute was regarded as unworkable by many, and a new statute (1921, p. 180; approved June 28) has now been passed. No zoning was ever done under the statute of 1919. New York has just passed a statute containing a similar requirement (1922, ch. 322) for the establishment of building lines and the zoning of those parts of towns in Westchester County, outside incorporated villages. 2&z THE LAW OF CITY PLANNING AND ZONING promotion is vital to the state. General welfare is a looser expression and measures to preserve or increase it are more carefully scrutinized by the courts. For many years cities have passed regulations of the height, area and use of buildings which are the same throughout the city; and the courts have accepted proper regulations of this sort as valid. It is only when these regulations vary in differ- ent parts of the city that their legality is still in any doubt. Reasonableness. Evidently a zoning regulation, to be authorized under the police power, like any measure claimed to be an exercise of any power, must first tend in a sufficient de- gree to accomplish a purpose justifiable under that power, and secondly be free from excess, unreasonableness or similar ele- ment. Thus a given height regulation, to be upheld as a police regulation by the courts, must materially promote the public health, safety, order or general welfare by conserving light or air, or preventing congestion, etc., and must not be so drastic as to lower land values unduly or be otherwise unreasonable. Zoning regulations, however, are challenged for the additional reason, not applicable to the others, that they do not afford to all the equal protection of the laws guaranteed by our consti- tutions. Classification. It is well settled in our law that the pro- vision for equal protection of the laws does not prevent reason- able classification. If all persons and things were, in nature and situation, absolutely alike, equality of treatment would be secured only by identical laws for all. Evidently, however, the differences in nature and situation, which are so general, permit and even require differences in the law in obtaining such equality. Uniformity of law under such circumstances would be like furnishing all men, fat and thin, tall and short, with clothing of the same size, when equal treatment would demand such variations as would give each a suit that would fit him ; or like offering rich and poor clothing of the same material ami price, when equality requires such differences as will give each the clothing he can afford. In accordance with this principle, the courts have sus- tained laws for tenement houses subjecting these structures, in ZONING IN CANADA AND THE UNITED STATES 283 which the danger of disease and fire is greater, to more stringent limitations than one and two family houses; and height regulations varying with the width of the street on which the buildings are to be erected, thereby tending to secure in each an equal supply of light and air; and fire limits in which buildings of fire-resisting material must be constructed at greater expense than in the other parts of the city where the fire risk is less. Although not usually recognized as such, regulations estab- lishing fire limits and restricting the height of buildings in accordance with the width of the streets on which they are to stand, which have universally received the support of the courts, are really zoning measures. The same considerations demand the same support for the more fully developed zoning which the city planners of today are advocating. Thus the central business parts of the city, to facilitate the quick trans- fers of business, require higher buildings, covering more of the lot, than the outlying sections ; and conversely the outlying residential districts need lower buildings, with more space around them for the comfort and health of adults, and espe- cially for growing children. Modern science has established the fact that human beings need abundance of sun, light and air, and freedom from nerve-racking noise, to a degree that it is impossible to obtain in the manufacturing and business parts of modern cities ; and experience, especially perhaps that of the English garden cities, tends strongly to confirm these scientific facts; which, indeed, are in accordance with common observa- tion and common sense. If, therefore, these conditions cannot be obtained in the business and industrial parts of cities, it is all the more necessary that they be furnished in greater abun- dance and completeness in other sections. Moreover the types of buildings prevailing in the two sections and the land prices in each of them, make the varying regulations more equal in burden and effect than identical limitations would be. In the same way use regulations varied to suit the various uses prevailing and suitable in the various parts of the city, properly conceived and applied, are measures of equality and not of discrimination. Thus if it were required that both land 284 THE LAW OF CITY PLANNING AND ZONING accessible to the railroads and land on the remoter hills of a city should be used for the same purpose, whether for busi- ness or for residence, there would be a glaring inequality of treatment. It may be claimed in zoning that any given regula- tion is inappropriate or unwarrantably severe ; but, like all leg- islation, it must be devised with knowledge and skill. Decisions on Zoning. Until recently the courts in their decisions with regard to zoning 34 have passed upon specific 14 DECISIONS ON ZONING The judicial decisions in favor of or against the validity of ordinances in this country creating various classes of zoning districts are given below. Among them are (i) cases in which the exclusion of a use from a given district is more or less dependent upon the consent of the property owners of that district. These cases are marked with a star (*). The validity of consent ordinances as such is considered on p. 266; (2) billboard cases, marked with a dagger (t); garage cases, marked with a double dagger (t) ; cases with regard to zoning under statutes relying upon the power of eminent domain, with regard to which that fact is stated, in all the other cases the zoning being under the police power. SYSTEMATIC AND COMPLETE ZONING California. See Brown v. City of Los Angeles (1920), 183 CaJ. 783, 192 Pac. 716. District of Columbia. See Schwartz v. Brownlow (1921), 50 App. D. C. 279, 270 Fed. 1019. Massachusetts. Opinion of Justices (1920), 234 Mass. 597, 127 N. E. 525- Missouri. See City of St. Louis v. Evraiff and Friedman, Mo. Sup. Ct, Oct. Term, 1921. Nfw Jersey. See Cliffside Park Realty Co. v. Borough of Qiffside Park (1921), 114 Atl. 797. New York. Lincoln Trust Co. v. Williams Bldg. Corp. (1920), 183 App. Div. 225, 229 N. Y. 313. Ohio. People ex rel. Morris v. Osborn (1920), 22 Ohio N. P. (N. S.) 549- HEIGHT DISTRICT Maryland. See Cochran v. Preston (1908), 108 Md. 220. Massachusetts. Welch v. Swasev (1908), 193 Mass. 364, 214 U. S. 91. New Jersey. See Romar Realty Co. v. Board of Commissioners (1921). 114 Atl. 248. ONE, AND ONE AND TWO-FAMILY HOUSE DISTRICTS Colorado. Sec *Willison v. Cooke (1013). 54 Col. 320, 130 Pac. 828. Kentucky. See McMurtry v. Phillips Investment Co. (1898) 103 Ky. 308, 45 S W. 96; Struck v. Kohler (1920). 187 Ky. 517. 219 S. W. 435- Maryland. Contra, Byrne v. Md. Realty Co. (1916), 129 Md. 202. 98 Atl. 547. Massachusetts. Opinion of Justices (1920). 234 Mass. 597, 127 N. E. 525. Minnesota. State ex rel. Twin City Bldg. and Investment Co. v. Houghton (1919), 144 Minn, i, 174 N. W. 885, 176 N. W. 159 (eminent domain) ; contra, State ex rel. Roerig v. City of Minneapolis (1917), 136 Minn. 479, 162 N. W. 477. Nebraska. See, State ex rel. Westminster Presbyterian Church of Omaha v. Edgecomb, Chief Eng. Bldg. Dep., City of Omaha, pending in State Supreme Court. New Jersey. See Blakeslee v. Jersey City (1921), 95 N. J. Law Rep. 284, Handy v. Village of South Orange (Feb. 21, 1922), Atl. . New York. See Reformed P. D. Church v. M. A. Bldg. Co. (1915), 214 N. Y. 268. Ohio. State ex rel. Morris v. Osborn (1920), 22 Ohio N. P. (N. S.) 549- Oregon. See State v. Plummer (1920), 97 Ore. 518, 189 Pac. 405, 191 Pac. 883. GENERAL RESIDENCE DISTRICT, BUSINESS EXCLUDED Colorado. Contra, Willison v. Cooke (1913), 54 Col. 320, 130 Pac. 828. Illinois. Contra, * People ex rel. Friend v. City of Chicago (1913), 261 111. 16, 103 N. E. 609. Louisiana. Contra, Calvo v. City of New Orleans (1915), 136 La. 480, 67 So. 338; State ex rel. Blaise v. New Orleans (1917), 142 La. 73, 76 So. 244. Maryland. Contra, Stubbs v. Scott (1915), 127 Md. 86, 95 Atl. 1060 (automobile salesroom). Minnesota. Contra, State ex rel. Lachtman v. Houghton (1916), but see State ex. rel. Twin City Bldg. and Investment Co. v. Houghton (1919), 144 Minn. I, 174 N. W. 885, 176 N. W. 159; (eminent domain) see Roerig v. Houghton (1919), 144 Minn. 231, 175 N. W. 542. Missouri. Contra, St. Louis v. Dorr (1898), 145 Mo. 466. New York. See Whitridge v. Calestock (1917), 100 Misc. 367, 165 N. Y. Supp. 640, 179 A. D. 884. Texas. Spann v. City of Dallas (1916), 189 S. W. 999. GENERAL RESIDENCE DISTRICT, NUISANCES, MANUFACTURING, ETC., EXCLUDED Arkansas. Reinman v. Little Rock (1913, 1915) 107 Ark. 174, 237 U. S. 171 (stable) ; Pierce Oil Co. v. Hope (1917, 1918) 127 Ark. 38, 248 U. S. 498. California. Ex Parte Quong Wo (1911) 161 Cal. 220, 118 Pac. 714 (laundry); Barbier v. Connolly (1884) 113 U. S. 27* (laundry). In re Montgomery (1912) 163 Cal. 457, 125 Pac. 1070 (lumber yard) ; Ex Parte Hadacheck (1913) 165 Cal. 416, 132 Pac. 584 (brickyard) ; Hadacheck v. Sebastian (1915) 239 U. S. 394 (brickyard) ; Curtis v. City of Los An- geles (1916) 172 Cal. 230, 156 Pac. 462 (stable); Boyd v. City of Sierra Madre (1919) 41 Cal. App. 520, 183 Pac. 230 (stable); Brown y. City of Los Angeles (1920) 192 Pac. 716 (undertaker) ; Sam Kee v. Wild (1919) 183 Pac. 164 (laundry). Delaware. $* Myers v. Fortunate (1920) Del. no Atl. 847; Contra. t*Dangel v. Williams (1916) n Del. Ch. 213. Idaho. Bacon v. Walker (1907) 204 U. S. 311 (sheep). Illinois. City of Chicago v. Stratton (1896) 162 111. 494, 44 N. E. 853 (stable) ; Standard Oil Co. v. Danville (1902), 119 111. 50, 105 N. E. 15. * Smolensky v. City of Chicago (1917) 282 111. 131 (junk shop) ; *$ People ex rel. Buschling v. Ericsson (1914) 263 111. 368, 105 N. E. 315. *$ People ex rel. Keller v. Village of Oak Park (1914) 266 111. 365, 107 N. E. 636; *t Cusack v. City of Chicago (1914-17) 267 111. 344, 108 N. E. 340, 242 U. S. 526; Contra. *People ex rel. Goldberg v. Busse (1909) 240 111. 338, 88 N. E. 831 (junk shop). Indiana. Shea v. City of Muncie (1897) 148 Ind. 14, 46 N. E. 138 (saloon). 286 THE LAW OF CITY PLANNING AND ZONING/^ Iowa. Shiras v. Olinger (1879) 5 Iowa 571 (stable) ; N-; W. Laundry Co. v. Des Moines (1916), 239 U. S. 486 (dense smoke) f *J City of Des Moines v. Manhattan Oil Co. (1921), 184 N. \Y. Sj.v Minnesota. Meyers v. Houghton (1917) 137 Minn. 481. 163 N. W. 754: Meagher v. Kessler (1920), 147 Minn. 182 (undertaker); State ex rel. Banner v. Houghton (1919), 142 Minn. 28, 170 N. W. 853; City of St. Paul y. Kessler (1920) 146 Minn. 124, 178 N. W. 171 (undertaker). Missouri. * City of St. Louis v. Russell (1893) 116 Mo. 248 (stable). New Jersey. t Village of South Orange v. Haller (1921) N. J. , 113 Atl. 697; see t Blakeslee v. Mayor and Aldermen of Jersey City (1921) 95 N. J. Law 284, 112 Atl. 593. New For*. Matter of Russell (1916) 158 N. Y. Supp. 162. Washington. City of Spokane v. Camp (1908) 50 Wash. 554, 97 Pac. 770 (stable). BUSINESS DISTRICT Arkansas. t Reinman v. Little Rock (1913-15) 107 Ark. 174, 237 U. S. 171 (stable). California. Barbier v. Connolly (1884) 113 U. S. 27 (laundry). Illinois. Contra, People ex rel. Goldberg v. Busse (1909) 240 111. 338, 88 N. E. 831 (junk shop). Missouri. St. Louis v. Russell (1893) 116 Mo. 248, 22 S. W. 47C (stable). See also Town of Cuba v. Mississippi Oil Co., 150 Ala. 259, 43 So. 706 (1007) ; Coon v. Board of Public Works, 7 Cal. App. 760 (1908) ; Varney & Green v. Williams, 155 Cal. 318 (1909) ; Nahser v. City of Chicago, 271 111. 288 (1916) ; City of Hammond v. Calumet C. & S. Co., 262 Fed. 938 (1920; Ind.) ; Shiras v. Olinger, 50 Iowa 571 (1879); Williams v. Wolf- gang, 151 Iowa 548 (1911) ; Osborne v. Grauel, 136 Md. 88 (1920) ; Hays v. City of Poplar Bluff, 263 Mo. 516 (1914); Watertown v. Mayo, 109 Mass. 315 (1872); Quintini v. Board of Aldermen, 64 Miss. 483 (1886); People ex rel. Corn Hill Realty Co., 209 N. Y. 434; 103 N. E. 735 (1913) ; Hall v. House of St. Giles the Cripple, 154 N. Y. Supp. 96 (1915) ; City of Rochester v. West, 164 N. Y. 510 (1900) : West Side Mort. Co. v. Leo, 174 N. Y. Supp. 451 (1919) ; Walcher v. First Presbyterian Church, Okla. 9, 184 Pac. 106 (1909) ; State ex rel. Omaha Gas Co. v. Within 11, 78 Neb. 33 (1907); State ex rel. Krittenbunk v. Withncll, 91 Neb. 102; 135 N. W. 376 (1012); State v. Whitlock, 149 N. C. 542 (1908); Coyne v. Prichard (Penn.) 116 Atl. 315 < i< -'-) : State of Tennessee v. Newton, 3 Tenn. Civ. App. 93 (1912) ; City of Olympia v. Mann, i Wash. 389 (1890) : Fruth v. I',(,:ud <.f Affairs of Charlestown, 75 West Va. 456; 84 S. E. 105 (1915) ; State ex rel. Nehrbass v. Harper, 162 Wise. 589 (1916). Cases tii'/ A relation to procedure: District of Columbia. J Weeks v. Heurich (1913), 40 App. cas. D. C. 46. New Jersey. ClifYside Park Realty Co. v. Borough of Cliffside Park (1921), 114 Atl. 797. New York. Whitridge v. Park (1917) 165 N. Y. Supp. 640; 179 App. Div. 884; 100 Misc. 367; Anderson v. Steinwav < 10171. 178 App. Div. 507: 221 N. Y. 639; Whiti-idtfe v. Calostock (1017) TOO Misc. 307; K. Supp. 640; 179 App. Div. 8K rel I U-- 1 ' -u!'< imer v. !.<'> l8). 186 App. Div. i.U- ex n-1 N Y. Centra! H K v. Leo (1918). 105 Misc. 372; 173 N. Y. Supp -'17; People ex rel. Broadway and i!i St. Realty Co. v Miller. .V. )'. Laiv Journal. Nov. I, IOM. MOM v Kuben Stern, .V. )'. / - J.nirn^. Dec JO. IO-M ; People ex rel. Sheldon v. Bd of App.. 11? Mi \'. Y. Supp. 1145 (1922); AIl> 'its Re;.! \PP. Div. (N. \.) 736; 169 N. Y. Supp. 287 zoning provisions and not on zoning as a whole. Thus the Massachusetts courts, sustained by the Supreme Court of the United States, 35 have upheld a height zoning provision. There seems to be no difference in principle between zoning by height and zoning by area. It has for some time therefore been re- garded as reasonably certain that proper bulk zoning is con- stitutional. State courts, sustained by the Supreme Court of the United States, have also held that manufacturing 36 or other enterprises which on any reasonable ground may be deemed 1049; People ex rel. Beinert v. Miller (1919), 100 Misc. 318, 188 App. Div. 113; 165 N. Y. Supp. 602; People ex rel. Sondern v. Walsh (1919), 108 Misc. (N. Y.) 193, 196; People ex rel. Wohl v. Leo (1919), 109 Misc. 448, 178 N. Y. Supp. 85; $ People ex rel. Small v. Leo (1919), 178 N. Y. Supp. 239; People ex rel. McAvoy v. Leo (1919), 109 Misc. 255; 178 N. Y. Supp. 513; $ West Side Mortgage Co. v. Leo (1919), 174 N. Y. Supp. 451; | People ex rel. Facey v. Leo (1921), no Misc. 516; 193 App. Div. 9:0; 180 N. Y. Supp. 553, 230 N. Y. 602; t People ex rel. Healy v. Leo (1920), 185 N. Y. Supp. 948; $ People ex rel. Cotton v. Leo (1920), no Misc. 519, 180 N. Y. Supp. 554. People ex rel. Helvetia Realty Co. v. Leo (1921), 183 N. Y. Supp. 37; 185 N. Y. Supp. 949; People ex rel. Ruth v. Leo (1921), N. Y. Law Journal, March 29, 1921, p. 2195 ; 188 N. Y. Supp. 945 ; Guinness v. Forchheimer, N. Y. Law Journal, May 21, 1921, 190 N. Y. Supp. 929; People ex rel. Sheldon v. Board of Appeals (1921), 115 Misc. 449; 189 N. Y. Supp. 772. Ordinances Must Be Reasonable. San Diego Tuberculosis Hospital v. City of East San Diego, 200 Pac. 393 (1921) ; State ex rel. Westminister Presbyterian Church of Omaha v. Edgecomb, Chief Eng. Bldg. Dept. City of Omaha, pending in State Supreme Court ; Handy v. Village of South Orange (Feb. 21, 1922) Atl. ; People ex rel. Wineburgh Adt. Co. v. Murphy, 195 N. Y. 126 (1909) ; Bennett v. Vallier, 136 Wis. 193 (1908). Piecemeal Zoning. See Brown v. City of Los Angeles, 192 Pac. 716 (1920). Definition of Use. People ex rel. Wohl v. Leo, 109 Misc. 448, 178 N. Y. Supp. 851 (1919). With regard to revocation of permit granted before passage of ordinance, see City of Des Moines v. Man- hattan Oil Co., 184 N. W. 823 (1921). Exclusion cannot be on ground that building does not conform to char- acter of buildings in neighborhood, and does tend to depreciate the value of surrounding property. Bostock v. Sams, 95 Md. 400 (1902). Police power may be used to promote general comfort, convenience and prosperity. Lake Shore, M. S. and S. Ry. Co. v. Ohio, 173 U. S. 285 (1898) ; C. B. & Q. Ry. Co. v. Drainage Com'rs (111.), 200 U. S. 561 at 592 (1906). Zoning by race or color is invalid, under the United States Constitution : Buchanan v. Warley, 165 Ky. 559; Reversed 245 U. S. 60 (191?) ; see also Carey v. City of Atlanta, 143 Ga. 192 (1915) ; State v. Gurry, 121 Md. 534 (1913); State v. Darnell, 166 N. Car. 300 (1914); Hopkins v. City of Richmond, 117 Va. 692 (1915). 35 Welch v. Swasey, 193 Mass. 364, affirmed, 214 U. S. 91 (1909). "Ex parte Hadacheck. 165 Cal. 416 (1913), Hadacheck v. Sebastian, 239 U. S. 394 (1915) ; Reinman v. Little Rock, 107 Ark. 174 (1913), 237 U. S. 171 (1915). 288 THE LAW OF CITY PLANNING AND ZONING objectionable in a residential or business neighborhood, even if not an actual nuisance, may be excluded. The legality of reasonable use zoning as a protection against manufacturing may therefore be regarded as established. Until recently the decisions in state courts with regard to regulations excluding business from residential neighborhoods (the Supreme Court of the United States has not as yet had occasion to consider the question) had been almost uniformly against their validity. The reason given was that these regulations were based upon aesthetic considerations. Certainly, as a general statement of the case for such zoning, this is most inadequate and therefore unfair. The intrusion of business into residential districts often interferes with comfort and convenience in these districts, and with health and safety, especially of children ; as is shown by a drop in land values. As an isolated provision, a measure barring business from such districts might well be considered as a taking of property rights from one land owner for the advantage of others. If, however, business is excluded as a part of a complete and well-considered plan, which includes all the land in the city in its various provisions, and assigns to business its proper place, for its own good as well as the ad- vantage of others, residential land is benefited certainly with- out loss to business property, and, as a rule, to its gain. None of these cases were with regard to such a comprehensive plan. Recent Decisions on Zoning. Late judicial opinions have done much to clarify the law on the subject of zoning. They consist of a case in an inferior court in Ohio, an opinion of the Justices of the Supreme Court of Massachusetts, and a case in the Court of Appeals in New York. 37 The East Cleveland Case. In July, 1919, the City of East Cleveland, Ohio, passed a zoning ordinance establishing a one and two- family residence district restricted against indus- try, business and tenements, a general residence district re- ** State of Ohio ex rel. Morris v. Oshorn, City Manager of East Cleve- land, et al., Common Pleas Court, Cuyahoga County, decided April 30, 1920, reported in 22 Ohio Nisi Prius Reports (New Series), page 549; Opinion of Justices, 234 Mass. 597, and also House Documents (1920) No. 1774; Lincoln Trust Co. v. Williams Building Corp., 229 N. Y. 313 (1920). ZONING IN CANADA AND THE UNITED STATES 289 stricted against business and industry, a business district and an unrestricted or industrial district. An owner of real estate in the one and two-family district applied for a permit to erect tenement houses upon it; and, when the permit was refused, appealed to the courts. For the first time, judging by the opinions, the court considered the propriety of the exercise of the police power 38 for the establishment of a private residence district as a part of systematic and complete zone plan ; and in so considering it held that the police power could be employed for the purpose. If tenements can legally be kept out of any given district, so can business, as well as industry; and it fol- lows that our present zoning plans, if in detail carefully and reasonably conceived and executed, will be sustained by the courts. The Opinion of the Massachusetts Justices. Alone among the states, Massachusetts has authorized the passage of zoning laws by constitutional amendment. 39 Under this amendment a statute has just been passed 40 which permits the establishment, as a part of a complete zoning regulation, of districts from which business and tenements are excluded. It was with regard to the validity of that law that the opinion of the judges of the supreme court of Massachusetts already men- tioned was obtained. It seemed reasonably clear after reading the Massachusetts statute that it was in accordance with the provisions of the Massachusetts constitutional amendment. In any event the opinion of the Massachusetts Justices that it was so would not much affect the fate of districts from which the tenement was excluded, and systematic zoning, outside of Massachusetts. But the Massachusetts Justices decided also that the statute was in conformity with the Constitution of the United States, in force in every state in our Union. This, and the added fact that the provisions with regard to the taking of 88 The exclusion of tenements from given districts under the power of eminent domain has been sustained by the courts ; State ex rel. Twin City Bldg. and Investment Co. v. Houghton, 144 Minn. i. 39 Constitution, Amendments, art. 60. 40 Now General Laws, 1920, ch. 40, sees. 25-30. The existence of an earlier statute (now 1920 ch. 143, sec. 3) should not be forgotten. It is in some ways more comprehensive than the later law. ago THE LAW OF CITY PLANNING AND ZONING property rights in the United States Constitution are similar to those in the unamencled constitutions of the other states, makes the Massachusetts opinion a weighty authority for the district from which the tenement is excluded, and systematic zoning, everywhere in this country; and it is already being so cited. 41 The New York Decision. In New York, where sys- tematic zoning regulations were first passed in this country, there has been litigation with regard to many phases of such zoning, but until lately none involving its constitutionality. Last July, however, such a case was decided by New York's highest court. In that case 42 the Court says : "The [New York City Zoning] resolution divided the real estate [of the city] into three districts, 'residence district/ 'business dis- trict,' and 'unrestricted district.' The land which the defendant con- tracted to purchase was in the residence district. The question pre- sented is whether the resolution constituted an incumbrance which would relieve the purchaser from its obligation to complete the pur- chase as provided in the contract. "In a great metropolis like New York, in which the public health, welfare, convenience and common good are to be considered, I am of the opinion that the resolution was not an incumbrance, since it was a proper exercise of the police power. The exercise of such power, within constitutional limitations, depends largely upon the discretion and good judgment of the municipal authorities with which the courts are reluctant to interfere. . . ." "Since this opinion was written an opinion of the justices of the Supreme Judicial Court of Massachusetts . . . has been published, which sustains the conclusion above expressed." In the light of these opinions, proper zoning in this country would now seem to be reasonably secure against judicial attack. It must not be forgotten, however, that the police power varies with local conditions in different parts of this country; 43 and that it is not impossible that there are details or phases of zoning which will be held valid by the courts in some states but will not be so sustained in others. " In Lincoln Trust Co. v. Williams Building Corp., 229 N. Y. 313 (1920). Lincoln Trust Co. v. Williams Building Corp., 229 N. Y. 31?, just cited. 41 See p. 20. ZONING IN CANADA AND THE UNITED STATES 291 Pacific Coast Zoning. Even the most hopeful advocate will admit that there are many questions with regard to zoning which remain unanswered. For this reason, until the law has become better settled, it especially behooves zoners and city offi- cials to proceed with care. On the Pacific Coast, zoning ordi- nances create from eight to twelve classes of district, instead of the four or five usually to be found in other parts of the country. 44 There is no reason to suppose, and certainly none to hope, that zoning has become stereotyped in this country; but on the contrary changes are to be expected and desired. The Pacific Coast districts, however, seem to lack those broad lines of demarcation, those solid reasons for existence which alone will justify them before our courts and, in the long run, with the community as a whole. Certainly the prudent zoner in the East and Middle West, for the immediate future at least, will avoid such elaborate classification. Even the law and prac- tice with regard to the comparatively conservative one- family detached house district is still in a most unsettled condition. Unsettled Legal Questions in Zoning. The courts have given some support to the hope that private residence districts may legally be established. Where shall the line be drawn between them and the less private district? The cases are too few for us to obtain from them definite information -on the subject. Certainly the line must be based upon some distinc- tion of importance. Under some zoning ordinances two fam- ily districts have been created; and the tenement, and in some 44 The zoning statutes of California (1917, ch. 734, p. 1419) expressly provide that : "Sec. 2. The council may by ordinance regulate, restrict and segre- gate the location of industries, the several classes of business, trades or callings, the location of apartment or tenement houses, club houses, group residences, two-family dwellings, single family dwellings and the several classes of public and semi-public buildings, and the location of buildings or property designed for specified uses, and may divide," etc. The Oregon Zoning Statute (Revised Laws 1920, sec. 3874, passed in 1919) practically identical with that of California throughout, is the same in this respect. As yet there are no decisions with regard to the con- stitutionality of either of these laws. With regard to such zoning, see also pp. 267, 272, 275, 277, 292. For a statement of the Pacific Coast point of view in zoning from the pen of the man who perhaps has done more of it than anyone else, see "Zoning in Practice" by Charles H. Cheney, in the National Municipal Review for January, 1920. 292 THE LAW OF CITY PLANNING AND ZONING cases the three decker, barred. If this line is drawn on the basis of congestion, either expressly, or indirectly by resort to height and area restriction, it is easy to see how it may with some confidence be regarded as legal. As a pure use distinction, by which all but one and two- family houses are barred ex- pressly and by name, it is harder to support. Why may not three families living independently, without common halls, be better housed, in some cases, than two with common halls? If two-family districts can be created, why not districts for three, and four, and five family houses? If not, just where should the distinction be made? The only differentiation, it is sub- mitted, which is clearly based upon grave considerations of public welfare is that between the house that a man shares with others and the house that he, with his wife and children, occu- pies alone and can make a real home; and it is the validity of the one-family house district most essential to the public wel- fare, which the courts are most likely to sustain. 44 * ** Since the writing of this chapter, a number of decisions, mentioned in note 34 on page 284 of this work, have been rendered in New Jersey and one in Missouri, holding certain zoning ordinances invalid ; and a similar decision is said to have been given in Texas. In this brief note there is not space to discuss these decisions adequately. In New Jersey there are statutes authorizing municipalities to pass zoning regulations, and the cases in that state decided that the ordinances in question, or certain sections of them, were not so drawn as to fulfil the requirements of these statutes. As a rule the faults in these ordinances were more or less obvious, and do not need to be pointed out here. In no instance did the court intimate that zoning was contrary to the New Jersey constitution; indeed, the opinions indicate there that the judges thought it constitutional. One of these cases (Handy v. Village of South Orange, Atl. Feb. 21, 1922) held that the statute on which the ordinance under review was based (1920 ch. 240) did not authorize the provision which that ordinance contained creating one-family house districts. It does not follow, of course, that under a proper statute a proper provision creating such a district would not be valid ; but in future the advocates of such districts will have this decision to reckon with. The statute has now been amended (1922, ch. 162) to authorize such districts. In Missouri there is no statute authorizing zoning. The Missouri case (City of St. Louis v. Evraiff and Friedman, Mo. Supreme Court. Oct. Term, 1921 ), therefore, is a holding that zoning in the absence of such a statute is invalid. The dicta in that case cannot be regarded as shaking the force of the decisions of New York and Massachusetts holding zoning to be constitutional, or the conclusions in the text based upon these decisions. See also recent adverse decisions said to have been rendered in Illinois and Louisiana. ZONING IN CANADA AND THE UNITED STATES 293 Note E No. i. THE MASSACHUSETTS ZONING CONSTITUTIONAL AMENDMENT," ART. LX The General Court 4t shall have power to limit buildings according to their use or construction to specified districts of cities and towns. No. 2. THE NEW YORK ZONING LAW FOR NEW YORK CITY 4T New York City Charter, Sec. 242-3. Board of estimate: power to regulate height of buildings, and to amend, supplement, change and enforce regulations. The board of estimate and apportionment shall have power to regulate and limit the height and bulk of buildings hereafter erected and to regulate and determine the area of yards, courts and other open spaces. The board shall divide the city into districts of such number, shape and area as it may deem best suited to carry out the purposes of this section. The regulations as to the height and bulk of buildings and the area of yards, courts and other open spaces shall be uniform for each class of buildings throughout each district. The regulations in one or more districts may differ from those in other districts. Such regulations shall be designed to secure safety from fire and other dangers and to promote the public health and welfare, including, so far as conditions may permit, pro- visions for adequate light, air, and convenience of access. The board shall pay reasonable regard to the character of buildings erected in each district, the value of the land and the use to which it may be put to the end that such regulations may promote public health, safety and welfare and the most desirable use for which the land of each district may be adapted and may tend to conserve the value of build- ings and enhance the value of land throughout the city. The board shall appoint a commission to recommend the boundaries of districts and appropriate regulations to be enforced therein. Such commis- sion shall make a tentative report and hold public hearings thereon at such times and places as said board shall require before submitting its final report. Said board shall not determine the boundaries of any district nor impose any regulation until after the final report of a commission so appointed. After such final report said board shall afford persons interested an opportunity to be heard at a time and place to be specified in a notice of hearing to be published for ten consecutive days in the City Record. The board may from time to time after public notice and hearing amend, supplement or change " Adopted November 5, 1918. "That is, the Legislature of the state. 4T 1914, ch. 470, as amended by 1916, ch. 497, 503 and 1917, ch. 601. 294 THE LAW OF CITY PLANNING AND ZONING said regulations or districts but in case a protest against a proposed amendment, supplement or change be presented, duly signed and acknowledged by the owners of twenty per centum or more of the frontage proposed to be altered, or by the owners of twenty per cen- tum of the frontage immediately in the rear thereof, or by the owners of twenty per centum of the frontage directly opposite the frontage proposed to be altered, such amendment shall not be passed except by a unanimous vote of the board. Said regulations shall be enforced by the superintendent of buildings of each borough and the tenement house commissioner, under the rules and regulations of the board of standards and appeals. Said regulations of the board of estimate and apportionment may provide that the board of appeals may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules therein con- tained. Sec. 242-b. Board of estimate; powers as to location of indus- tries and buildings and enforcement of regulations. The board of estimate and apportionment may regulate and restrict the location of trades and industries and the location of buildings designed for specified uses, and may divide the city into districts of such number, shape and area as it may deem best suited to carry out the purposes of this section. For each such district regulations may be imposed designating the trades and industries that shall be excluded or sub- jected to special regulations and designating the uses for which buildings may not be erected or altered. Such regulations shall be designed to promote the public health, safety and general welfare. The board shall give reasonable consideration, among other things to the character of the district, its peculiar suitability for particular uses, the conservation of property values, and the direction of build- ing development in accord with a well considered plan. The board shall appoint a commission to recommend the boundaries of districts and appropriate regulations and restrictions to be imposed therein. Such commission shall make a tentative report and hold public hear- ings thereon before submitting its final report at such time as .-aid board shall require. Said board shall not determine the boundaries of any district nor impose any regulations or restrictions until after the final report of a commission so appointed. After such final report said board shall afford persons interested an opportunity to be heard at a time and place to be specified in a notice of hearing to be pub- lished for ten consecutive days in the City Record. The board may from time to time after public notice and hearing amend, supplement or change said regulations or districts but in case a protest against a proposed amendment, supplement or change be presented, duly signed and acknowledged by the owners of twenty per centum or more of the frontage proposed to be altered, or, by the owners of twenty per centum of the frontage immediately in the rear thereof, or by the ZONING IN CANADA AND THE UNITED STATES 295 owners of twenty per centum of the frontage directly opposite the frontage proposed to be altered, such amendment shall not be passed except by a unanimous vote of the board. Said regulations shall be enforced by the superintendent of buildings of each borough, the tenement house commissioner and the fire commissioner under the rules and regulations of the board of standards and appeals. Said regulations of the board of estimate and apportionment may provide that the board of appeals may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specified rules therein contained. SEC. 7i8-d. Board of Appeals. The appointed members of the board of standards and appeals and the chief of the uniformed force of the fire department, exclusive of the other members, shall hear and decide appeals from and review any rule, regulation, amendment or repeal thereof, order, requirement, decision or determination of a superintendent of buildings made under the authority of title two of chapter nine of this act or of any ordinance or of the fire commis- sioner under the authority of title three of chapter fifteen of this act or of any ordinance, or of the labor law. They shall also hear and decide all matters referred to them or upon which they are required to pass under any resolution of the board of estimate and apportion- ment adopted pursuant to sections two hundred and forty-two-a and two hundred and forty-two-b of this chapter. No member of the board shall pass upon any question in which he or any corporation in which he is a stockholder or security holder is interested. Hearings on appeals shall be before at least five members of the board of appeals, and the concurring vote of five members of the board of appeals shall be necessary to a decision. The words board of appeals when used in this chapter refer to thp said appointed members of the board of standards and appeals and the chief of the uniformed force of the fire department, when acting under the powers conferred by this section. No. 5. THE NEW YORK ZONING LAW FOR CITIES This law *" gives the cities of New York state the same powers to zone that were previously given the city of New York, and in essen- tially the same language. In 1920 ** the law was amended by adding provisions with regard to appeals as follows: SEC. 81. Board of Appeals, i. The mayor of any city, except a city of the first class, may appoint a board of appeals consisting of five members, each to be appointed for three years. Such board of appeals shall hear and decide appeals from and review any order, 48 The law is 1917, ch. 483, and is an amendment to the General City Law. It does not apply to Rochester. 48 Ch. 743- 296 THE LAW OF CITY PLANNING AND ZONING requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance adopted pur- suant to paragraphs twenty-four and twenty-five of section twenty of this chapter. They shall also hear and decide all matters referred to them or upon which they are required to pass under any ordinance of the common council adopted pursuant to such two paragraphs. The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant any matter upon which they are required to pass under any such ordi- nance or to effect any variation in such ordinance. Every decision of such board shall, however, be subject to review by certiorari. Such appeal may be taken by any person aggrieved or by an officer, depart- ment, board or bureau of the city. 2. Appeal how taken. Such appeal shall be taken within such time as shall be prescribed by the board of appeals by general rule, by filing with the officer from whom the appeal is taken and with the board of appeals of a notice of appeal, specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken. 3. Stay. An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of appeals after the notice of appeal shall have been filed with him that by reason of facts stated in the cer- tificate a stay would, in his opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of appeals or by the supreme court, on application, on notice to the officer from whom the appeal is taken and on due cause shown. 4. Hearing of and decision upon appeal. The board of appeals shall fix a reasonable time for the hearing of the appeal and give due notice thereof to the parties, and decide the same within reasonable time. Upon the hearing, any party may appear in person or hy a.^i-nt or by attorney. The board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determi- nation appealed from and shall make such order, requirement, deci- sion or determination as in its opinion ought to be made in the premises, and to that end shall have all the powers of the officer from whom the appeal is taken. Where there are practical difficulties or unnecessary hardship in the way ,of carrying out the strict letter of such ordinance, the board of appeals shall have power of passing upon appeals, to vary or modify "any of its rules, regulations or pro- visions relating to the construction, structural changes in. equipment or alteration of buildings or structures, so that the spirit of the ordi- nance shall be observed, public safety secured and substantial justice done. SEC. 82. Certiorari to review decision of board of appeals. I. Petition. Any person or persons, jointly or severally aggrieved by any decision of the board of appeals, or any officer, department, board or bureau of the city, may present to the supreme court a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition must be presented to a justice of the supreme court or at a special term of the supreme court within thirty days after the filing of the decision in the office of the board. 2. Writ of certiorari. Upon presentation of such petition, the justice or court may allow a writ of certiorari directed to the board of appeals to review such decision of the board of appeals and shall prescribe therein the time within which a return thereto must be made and served upon the relator or his attorney, which shall not be less than ten days and may be extended by the court or a justice thereof. Such writ shall be returnable to a special term of the supreme court of the judicial district in which the property affected, or a portion thereof, is situated. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order. 3. Return to writ. The board of appeals shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return must concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and must be verified. 4. Proceedings upon return. If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. 5. Costs. Costs shall not be allowed against the board, unless it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from. 6. Preferences. All issues in any proceeding under this section shall have preference over all other civil actions and proceedings. SEC. 83. Amendments, alterations and changes in district lines. The common council may from time to time on its own motion or on petition, after public notice and hearing, amend, supplement or change 298 THE LAW OF CITY PLANNING AND ZONING the regulations and districts established under any ordinance adopted pursuant to paragraphs twenty-four and twenty-five of section twenty of this chapter. Whenever the owners of fifty per centum or more of the frontage in any district or part thereof shall present a petition duly signed and acknowledged to the common council requesting an amendment, supplement, change or repeal of the regulations pre- scribed for such district or part thereof, it shall be the duty of the council to vote upon said petition within ninety days after the filing of the same by the petitioners with the secretary of the council. If, however, a protest against such amendment, supplement or change be presented, duly signed and acknowledged by the owners of twenty per centum or more of any frontage proposed to be altered, or by the owners of twenty per centum of the frontage immediately in the rear thereof, or by the owners of twenty per centum of the frontage directly opposite the frontage proposed to be altered, such amendment shall not be passed except by the unanimous vote of the council. SEC. 2. This act shall take effect immediately. Building regulations City districted. Regula- tions. Design of regulations. Consider*- No. 4. THE NEW JERSEY ZONING LAW FOR CITIES* An Act to enable cities to regulate and limit the height and bulk of buildings, to regulate and determine the area of yards, courts and other open spaces, and to regulate and restrict the location of build- ings for trades and industries. Be it enacted, etc. i. The common council or governing commission of cities shall have power to regulate and limit the height and bulk of buildings hereafter erected and to regulate and determine the area of yards, courts and other open spaces. The common council or governing commission may divide the city into districts of such number, shape and area as it may deem best suited to carry out the purposes of this section. The regulations as to the height and bulk of buildings and the area of yards, courts and other open spaces shall be uniform for each class of buildings throughout each district. The regulation^ in one or more districts may differ from those in other districts. Such regulations shall be designed to secure safety from fire and other clangers and to promote the public health and welfare, including pro- vision for adequate light, air, and convenience of access. The com- mon council or governing commission shall pay reasonable reganl to the character of buildings erected in each district, the value of the land and the use to which it may be put to the end that such regula- tions may promote public health, safety and welfare and the nuM desirable use for which the land of each district may be adapted and may tend to conserve the values of the buildings and enhance the value of land throughout the city. "1900, ch. 229. ZONING IN CANADA AND THE UNITED STATES 299 2. The common council or governing commission of cities shall also have the power to regulate and restrict the location of buildings designed for specified uses, as well as the location of trades and indus- tries, and may divide the city into districts of such number, shape and area as it may deem best suited to carry out the purposes of this sec- tion. For each such district regulations may be imposed designating the use for which buildings may not be erected or altered, and desig- nating the trades and industries that shall be excluded or subjected to special regulations. Such regulations shall be designed to promote the public health, safety and general welfare. The common council or governing commission shall give reasonable consideration, among other things, to the character of the district, its peculiar suitability for particular uses, the conservation of property values, and the di- rection of building development in accord with a well-considered plan ; provided, however, no such regulation or restriction shall become effective in any city until after a public hearing, notice of which has been published for not less than two weeks in one or more newspapers of general circulation printed and published in such city, and if there is no newspaper printed and published in such city then in one or more newspapers having a general circulation in such city. 3. The common council or governing commission of cities accept- ing the provisions of this act shall appoint a commission to be known as "Commission on Building Districts and Restrictions," to consist of three members for a term of four years. The members of such com- mission on building districts and restrictions shall consist of three members of whom one shall be appointed chairman. Such members shall be paid an annual salary of twenty-five hundred dollars per year, except that the chairman shall be paid three thousand dollars per year. ' 4. The common council or governing commission may from time to time, after public notice and hearing, amend, supplement or change said regulations or districts. Such proposed amendment, sup- plement or change, however, must first be referred to the commission on building districts and restrictions for consideration and report before final action shall be taken thereon by said common council or governing commission. But in case a protest against a proposed amendment, supplement or change be presented, duly signed and acknowledged by the owners of twenty per centum or more of the frontage of the property proposed to be altered, or by the owners of twenty per centum of the frontage upon the street immediately in the rear thereof, or by the owners of twenty per centum of the frontage directly opposite the property proposed to be altered, such amend- ment shall not be passed except by a three-quarters vote of the com- mon council or governing commission. 5. Such commission on building districts and restrictions shall investigate and examine into the opening, grading, widening, light- Uses. Salary. May change regula- tions. 300 THE LAW OF CITY PLANNING AND ZONING May waive restric- tions. Secretary and as- sistants. City plan not affected. Local ordi- nances to govern. When building code to govern. Acts in- operative. Proviso. ing and paving of streets and sidewalks and shall make recommenda- tions to the governing body from time to time of any such improve- ments as in their opinion will advance the welfare of such city or the inhabitants thereof. 6. Such commission on building districts and restrictions and the governing body shall have power and authority in exceptional cases in their discretion to waive any of the regulations or restric- tions theretofore adopted or imposed, but only after a public hearing and upon the unanimous vote of all the members thereof. 7. Such commission on building districts and restrictions is authorized to employ a secretary and such clerical and other assistants as may be agreed upon by the members of such commission and such governing body is hereby authorized to appropriate and raise such sum or sums of money as may be necessary for the support of such commission as other appropriations are made and raised. 8. This act shall not be construed so as to limit or abridge any right, power or authority conferred or vested in city plan commissions in cities of this State. 9. Wherever the provisions of any ordinance or regulation adopted by the common council or governing commission under the provisions of this act impose requirements for lower height of build- ings or a less percentage of lot that may be occupied, or require wider or larger courts or deeper yards than are imposed or required by existing provision of law or ordinance, the provision of such local ordinance or regulation adopted under the provision of this act shall govern. Where, however, the provisions of the New Jersey tene- ment house law, the building code or other ordinance or regulation of any city impose requirements for lower height of building, or less percentage of lot that may be occupied, or require wider or larger courts or deeper yards than are required by any ordinance or regula- tion which may be adopted by the common council or governing com- mission under the provision of this act, the provision of said New Jersey tenement house law or said building code or other ordinance or regulation shall govern. 10. All acts and parts of acts inconsistent with the provisions of this act and more especially an act entitled "An act to enable cities of the first and second class to regulate and limit the height and bulk of buildings, to regulate and determine the area of yards, courts and other open spaces, and to regulate and restrict the location of trades and industries," approved February twenty-seventh, one thousand nine hundred and eighteen, are hereby declared inoperative in any city where the provisions of this act shall have been adopted as here- inafter provided; provided, hou'crcr, that if any provisions of this act shall be declared invalid, it shall not affect the remainder of this act, but the same shall continue in full force and effect. ZONING IN CANADA AND THE UNITED STATES 301 ii. This act shall take effect immediately, but its provisions shall remain inoperative in any city of this State until adopted by a ma- jority vote of the legal voters thereof at an election under the same conditions as provided in sections six and seven of an act entitled "An act relative to the division of the uniform fire-fighting force, of cities of the first class in this State, into two platoons," approved February eighteenth, one thousand nine hundred and sixteen. No. 5. THE DISTRICT OF COLUMBIA ZONING LAW" An Act to regulate the height, area, and use of buildings in the District of Columbia and to create a Zoning Commission, and for other purposes. "Be it enacted, etc. "That to protect the public health, secure the. public safety, and to protect property in the District of Columbia there is hereby created a Zoning Commission, which shall consist of the Commissioners of the District of Columbia, the officer in charge of public buildings and grounds of the District of Columbia, and the Superintendent of the United States Capitol Building and Grounds, which said commis- sion shall have all the powers and perform all the duties hereinafter specified and shall serve without additional compensation. Such employees of the government of the District of Columbia as may be necessary to carry out the purposes of this Act shall be assigned to such duty by the Commissioners of the District of Columbia with- out additional compensation. There is hereby authorized for the expenses of said Commission, including the employment of expert services and all incidental and contingent expenses, a sum not to exceed $5,000, payable one-half out of any money in the United States Treasury not otherwise appropriated and the other half out of the revenues of the District of Columbia. "SEC. 2. That within six months after the passage of this Act and after public notice and hearing as hereinafter provided, the said commission shall divide the District of Columbia into certain districts, to be known, respectively, as height, area, and use districts, and shall adopt regulations specifying the height and area of buildings there- after to be erected or altered therein and the purposes for which buildings and premises therein may be used : Provided, That such regulations may differ in the various districts : Provided further, That the permissible height of buildings in any district shall not exceed the maximum height of building now authorized upon any street in any part of that district by the Act of Congress approved June i, 1910, 81 U. S. Public Act No. 153, 66th Congress, approved March i, 1920 (41 U. S. Stat. at Large, 500). Referen- dum. District of Columbia Zoning Commis- sion created. Height, area and use dis- tricts to be estab- lished. 302 THE LAW OF CITY PLANNING AND ZONING Public hearings before es- tablishing districts, etc. Accessories permitted in resi- dence dis- tricts. Advertise- ment of hearings. Proviso. Adjourned meetings. Establish- ment of districts. Height, etc.. of buildings in, to be specified. Changes restricted. Proviso. Petition of owners required. Action on changes. Order* and regu- lations au- thorized. Provisos. Construc- tion a!l.>w<-3 been issued, or plans for which shall be on file with the inspector of buildings of the District of Columbia at the time the orders or regula- tions authorized under this Act are promulgated; or (b) a permit for the erection of which shall be issued within thirty days after promul- gation of the orders or regulations authorized or adopted under this Act and the construction of which in either of the above cases shall have been diligently prosecuted within a year from the date of such permit and the ground story framework of which, including the second tier of beams, shall have been completed within said year, and which entire building shall be completed according to such plans within two years of the date of the promulgation of such orders or regulations; or (c) prevent the restoration of a building partially destroyed by fire, explosion, act of God or the public enemy, or pre- vent the continuance of the use of such building or part thereof as such use existed at the time of such partial destruction, or prevent a change of such existing use except under the limitations provided herein in relation to existing buildings and premises : Provided further, That no frame building that has been damaged by fire or otherwise more than one-half of its original value shall be restored within the fire limits as provided by the building regulations of the District of Columbia; or (d) prevent the restoration of a wall de- clared unsafe by the inspector of buildings of the District or by a board of survey appointed in accordance with any existing law or regulation." "SEC. 6. That any lawful use of a building or premises existing at the time of the adoption of orders and regulations made under the authority of this Act may be continued, although such use does not conform with the provisions hereof or with the provisions of such orders and regulations; and such use may be extended throughout the building, provided no structural alteration, except those required by law or regulation, is made therein and no new building is erected. Where the boundary line of any use district divides a lot in a single ownership at the time of the adoption of orders and regulations under the authority of this Act, the commission may permit a use author- ized on either portion of such lot to extend to the entire lot, but not more than twenty-five feet beyond the boundary line of the use district." "SEC. 7. That maps of the districts established by said commis- sion and copies of all orders and regulations as to the height and area of buildings to be erected therein and as to the uses to which such buildings may be lawfully devoted, and copies of all other official orders and regulations of the commission shall be filed in the office of the Engineer Commissioner of the District of Columbia. Copies of all orders and regulations shall be published in one or more newspapers printed in the District of Columbia for the information of all concerned." Restora- tion of buildings partially destroyed by fire, etc. Restric- tion as to frame buildings. Restora- tion of unsafe walls. Lots lo- cated in adjoining use dis- tricts. Maps, orders, etc.. of commis- sion to be filed. THE LAW OF CITY PLANNING AND ZONING Certificate of occu- pancy re- quired for use of buildings, etc. Buildings violating orders, etc., de- clared nuisances. Penalty for main- taining. Injunction proceed- ings. "SEC. 8. That it shall be unlawful to use or permit the use of any building or premises or part thereof hereafter created, erected, changed, or converted wholly or partly in its use or structure until a certificate of occupancy shall have been issued By authority of said zoning commission." "SEC. 9. That buildings erected, altered, or raised, or converted in violation of any of the provisions of this Act or the orders and regulations made under the authority thereof are hereby declared to be common nuisances; and the owner or person in charge of or maintaining any such buildings, upon conviction on information filed in the police court of the District of Columbia by the corporation counsel or any of his assistants in the name of said District, and which court is hereby authorized to hear and determine such cases, shall be adjudged guilty of maintaining a common nuisance, and shall be punished by a fine of not more than $100 per day for each and every day such nuisance shall be permitted to continue, and shall be required by said court to abate such nuisance. The corporation counsel of the District of Columbia may maintain an action in the Supreme Court of the District of Columbia in the name of the Dis- trict of Columbia to abate and perpetually enjoin such nuisance. "SEC. 10. That the Commissioners of the District of Columbia shall enforce the provisions of this Act and the orders and regula- tions adopted by said Zoning Commission under the authority thereof, and nothing herein contained shall be construed to limit the authority of the Commissioners of the District of Columbia to make municipal regulations as heretofore : Provided, That such regulations are not inconsistent with the provisions of this law and the orders and regula- tions made thereunder. In interpreting and applying the provisions of this Act and of the orders and regulations made thereunder they shall be held to be the minimum requirements for the promotion of the public health, safety, comfort, convenience, and general welfare. This Act shall not abrogate or annul any easements, covenants, or other agreements between parties: Provided, however. That as to all future building construction or use of premises where this Act or any orders or regulations adopted under the authority thereof impose a greater restriction upon the use of buildings or premises or upon height of building, or require larger open spaces than are imposed or required by existing law, regulations, or permits, or by such ease- ments, covenants, or agreements, the provisions of this Act and of the orders and regulations made thereunder shall control." "SEC. ii. That all laws or parts of laws and regulations in con- flict with the provisions of this Act are hereby repealed." ZONING IN CANADA AND THE UNITED STATES 305 No. 6. THE NEW YORK CITY BUILDING ZONE RESOLUTION M A Resolution regulating and limiting the height and bulk of buildings hereafter erected and regulating and determining the area of yards, courts and other open spaces, and regulating and restricting the location of trades and industries and the location of buildings de- signed for specified uses and establishing the boundaries of dis- tricts for the said purposes. Be it resolved by the Board of Estimate and Apportionment of The City of New York: ARTICLE I DEFINITIONS SEC. I. Definitions. Certain words in this resolution are defined for the purposes thereof as follows : (o) Words used in the present tense include the future; the singu- lar number includes the plural and the plural the singular; the word "lot" includes the word "plot" ; the word "building" includes the word "structure." (6) The "street line" is the dividing line between the street and the lot. (c) The "width of the street" is the mean of the distances between the sides thereof within a block. Where a street borders a public place, public park or navigable body of water the width of the street is the mean width of such street plus the width, measured at right angles to the street line, of such public place, public park or body of water. (rf) The "curb level," for the purpose of measuring the height of any portion of a building, is the mean level of the curb in front of such portion of the building. But where a building is on a corner lot the curb level is the mean level of the curb on the street of greatest width. If such greatest width occurs on more than one street the curb level is the mean level of the curb on that street of greatest width which has the highest curb elevation. The "curb level" for the pur- pose of regulating and determining the area of yards, courts and open spaces is the mean level of the curb at that front of the building where there is the highest curb elevation. Where no curb elevation has been established or the building does not adjoin the street the average ground level of the lot shall be considered the curb level. (?) A "street wall" of a building, at any level, is the wall or part of the building nearest to the street line. (/) The "height of a building" is the vertical distance measured in the case of flat roofs from the curb level to the level of the highest point of the roof beams adjacent to the street wall, and in the case of M Adopted July 25, 1916. 306 THE LAW OF CITY PLANNING AND ZONING pitched roofs from the curb level to the mean height level of the gable. Where no roof beams exist or there are structures wholly or partly above the roof the height shall be measured from the curb level to the level of the highest point of the building. Where a build- ing is a tenement house as defined in the Tenement House Law the height of the building on the street line shall be measured as pre- scribed in said law for the measurement of the height of a tenement house and such measurement shall be from the curb level as that term is used in said law. (g) The "depth of a lot" is the mean distance from the street line of the lot to its rear line measured in the general direction of the side lines of the lot. (/t) A "rear yard" is an open unoccupied space on the same lot with a building between the rear line of the building and the rear line of the lot. (i) The "depth of a rear yard" is the mean distance between the rear line of the building and the rear line of the lot. (/) Lots or portions of lots shall be deemed "back to back" when they are on opposite sides of the same part of a rear line common to both and the opposite street lines on which the lots front are parallel with each other or make an angle with each other of not over 45 degrees. (k) A "court" is an open unoccupied space, other than a rear yard, on the same lot with a building. A court not extending to the street or to a rear yard is an "inner court." A court extending to the street or a rear yard is an "outer court." A court on the lot line extending through from the street to a rear yard or another street is a "side yard." (/) The "height of a yard or a court" at any given level shall be measured from the lowest level of such yard or court as actually constructed or from the curb level, if higher, to such level. The highest level of any given wall bounding a court or yard shall be deemed to be the mean height of such wall. Where a building is a tenement house, as defined in the Tenement House Law, the height of a yard or a court shall be measured as prescribed in such law. (m) The "least dimension" of a yard or court at any level is the least of the horizontal dimensions of such yard or court at such level. It" two opposite sides of a yard or court are not parallel the hori- zontal dimension between them shall be deemed to be the mean dis- tance between them. (n) The "length of an outer court" at any given point shall be measured in the general direction of the side lines of such court from the end opposite the end opening on a street, or a rear yard, to such point. ZONING IN CANADA AND THE UNITED STATES 307 ARTICLE II USE DISTRICTS SEC. 2. Use Districts. For the purpose of regulating and re- stricting the location of trades and industries and the location of buildings designed for specified uses, the City of New York is hereby divided into three classes of districts: (i) residence districts, (2) business districts, and (3) unrestricted districts; as shown on the use district map which accompanies this resolution and is hereby declared to be part hereof. The use districts designated on said map are hereby established. The use district map designations and map desig- nation rules which accompany said use district map are hereby de- clared to be part thereof. No building or premises shall be erected or used for any purpose other than a purpose permitted in the use district in which such building or premises is located. SEC. 3. Residence Districts. In a residence district no build- ing shall be erected other than a building, with its usual accessories, arranged, intended or designed exclusively for one or more of the following specified uses: (1) Dwellings, which shall include dwellings for one or more families and boarding houses and also hotels which have thirty or more sleeping rooms. (2) Clubs, excepting clubs the chief activity of which is a service customarily carried on as a business. (3) Churches. (4) Schools, libraries or public museums. (5) Philanthropic or eleemosynary uses or institutions, other than correctional institutions. (6) Hospitals and sanitariums. (7) Railroad passenger stations. (8) Farming, truck gardening, nurseries or green houses. In a residence district no building or premises shall be used for any use other than a use above specified for which buildings may be erected and for the accessory uses customarily incident thereto. The term accessory use shall not include a business nor shall it in- clude any building or use not located on the same lot with the build- ing or use to which it is accessory. A private garage for more than five motor vehicles shall not be deemed an accessory use. SEC. 4. Business Districts, (a) In a business district no build- ing or premises shall be used, and no building shall be erected which is arranged, intended or designed to be used, for any of the fol- lowing specified trades, industries or uses : M 53 The list is here given as amended December 21, 1917. As a further aid to the zoner endeavoring to prepare a similar list suitable for use in any given locality, the following additional industries, selected from 308 THE LAW OF CITY PLANNING AND ZONING (1) Ammonia, chlorine or bleaching powder manufacture. (2) Asphalt manufacture or refining. (3) Assaying (other than gold or silver). (4) Blacksmithing or horseshoeing. (5) Boiler making. (6) Brewing or distilling of liquors. (7) Carpet cleaning. (8) Celluloid manufacture. (9) Crematory. (10) Distillation of coal, wood or bones, (n) Dyeing or dry cleaning. (12) Electric central station power plant. (13) Fat rendering. (14) Fertilizer manufacture. (15) Garage for more than five motor vehicles, not including a warehouse where motor vehicles are received for dead storage only, and not including a salesroom where motor vehicles are kept for sale or for demonstration purposes only. (16) Gas (illuminating or heating) manufacture or storage. a list prepared after an examination of the various zoning ordinances in this country, by J. P. Fox, Esq., of New York City, are here given : Acetylene gas manufacturing. Blast furnace. Brick, concrete products, terra cotta or tile manufacturing. Candle manufacturing. Coke manufacturing. Creosote manufacturing or treatment. Disinfectant, insecticide or poison manufacturing. Dyestuff manufacturing. Emery cloth and sandpaper manufacturing. Explosives, fireworks or gunpowder manufacturing. Forging. Gasoline or naphtha refining. Match manufacturing. Oiled, rubber or leather goods manufacturing. Ore reduction. Paper and pulp manufacturing. Pickle, sauerkraut, sausage or vinegar manufacturing. Potash refining. Pyroxylin manufacturing. Railroad yard or roundhouse. Rolling mill. Salt manufacturing. Shoe blacking manufacturing. Soda and soda compounds manufacturing. Stove polish manufacturing. Tobacco manufacturing or treatment for chewing purposes. Yeast manufacturing. ZONING IN CANADA AND THE UNITED STATES 309 (17) Glue, size and gelatine manufacture. (18) Incineration or reduction of garbage, offal, dead animals or refuse. (19) Iron, steel, brass or copper works. (20) Junk, scrap paper or rag storage or baling. (21) Lamp black manufacture. (22) Lime, cement or plaster of Paris manufacture. (23) Milk bottling and distributing station. (24) Oil cloth or linoleum manufacture. (25) Paint, oil, varnish or turpentine manufacture. (26) Petroleum refining or storage. (27) Printing ink manufacture. (28) Raw hides or skins storage, curing or tanning. (29) Repair shop for motor vehicles. (30) Rubber manufacture from the crude material. (31) Saw or planing mill. (32) Shoddy manufacture or wool scouring. (33) Slaughtering of animals. (34) Smelting. (35) Soap manufacture. (36) Stable for more than five horses. (37) Starch, glucose or dextrine manufacture. (38) Stock yards. (39) Stone or monumental works. (40) Sugar refining. (41) Sulphurous, sulphuric, nitric or hydrochloric acid manu- facture. (42) Tallow, grease or lard manufacturing or refining. (43) Tar distillation or manufacture. (44) Tar roofing or tar waterproofing manufacture. (6) In a business district no building or premises shall be used, and no building shall be erected, which is arranged, intended or de- signed to be used for any trade, industry or use that is noxious or offensive by reason of the emission of odor, dust, smoke, gas or noise ; but car barns or places of amusement shall not be excluded. (c) In a business district no building or premises shall be used, and no building shall be erected, which is arranged, intended or de- signed to be used, for any kind of manufacturing, except that any kind of manufacturing not included within the prohibitions of para- graphs a and b of this section may be carried on provided not more than 25 per cent, of the total floor space of the building is so used, but space equal to the area of the lot may be so used in any case, although in excess of said 25 per cent. The printing of a newspaper shall not be deemed manufacturing. No use permitted in a residence district by section 3 shall be excluded from a business district, 310 THE LAW OF CITY PLANNING AND ZONING SEC. 5. Unrestricted Districts. The term "unrestricted district" is used to designate the districts for which no regulations or restric- tions are provided by this article. SEC. 6. Existing Buildings and Premises, (a) Any use exist- ing in any building or premises at the time of the passage of this resolution and not conforming to the regulations of the use district in which it is maintained, may be continued therein. No existing building designed, arranged, intended or devoted to a use not per- mitted by this article in the district in which such use is located shall be enlarged, extended, reconstructed or structurally altered unless such use is changed to a use permitted in the district in which such building is located. Such building may, however, be recon- structed or structurally altered to an extent not greater than 50 per cent, of the value of the building, exclusive of foundations, provided that no use in such building is changed or extended, except as au- thorized in paragraph b of this section, and provided, further, that no use included in any one of the enumerated subdivisions of para- graph a of section 4 is changed into a use included in any other enumerated subdivision of paragraph a of section 4 or into a use pro- hibited by paragraph b of section 4, and also provided that no use prohibited by paragraph b of section 4 is changed into another use prohibited by paragraph b of section 4 or into a use included in an enumerated subdivision of paragraph a of section 4. (6) Any use existing in any building or premises at the time of the passage of this resolution and not conforming to the regulations of the use district in which it is maintained may be changed, and such use may be extended throughout the building, provided that in either case: 1 i ) No structural alterations shall be made in the building, except as authorized by paragraph a of this section, and (2) In a residence district no portion of a building devoted to a use included in subdivision I of section 3 shall be changed to any use prohibited in a residence district, and (3) In a residence district no building or premises, unless devoted to one of the uses that is by section 4 prohibited in a business district, shall be changed to any of such uses, and (4) In a residence or business district no building or part thereof and no premises unless devoted to one of the uses that is by para- graphs a or b of section 4 prohibited in a business district, shall be changed to any of such uses. If a use is changed as authorized in this section, the new use may thereafter be changed, subject to the limitations imposed by sub- divisions I, 2, 3 and 4 of this paragraph.* 4 SEC. 7. Use District Exceptions. The Board of Appeals, cre- M Sec. 6. amended as above December 21, 1917. ZONING IN CANADA AND THE UNITED STATES 3" ated by chapter 503 of the laws of 1916, may, in appropriate cases, after public notice and hearing, and subject to appropriate condi- tions and safeguards, determine and vary the application of the use district regulations herein established in harmony with their general purpose and intent as follows: (a) Permit the extension of an existing building and the exist- ing use thereof upon the lot occupied by such building at the time of the passage of this resolution or permit the erection of an addi- tional building upon a lot occupied at the time of the passage of this resolution by a commercial or industrial establishment and which additional building is a part of such establishment; (6) Where a use district boundary line divides a lot in a single ownership at the time of the passage of this resolution, permit a use authorized on either portion of such lot to extend to the entire lot, but not more than 25 feet beyond the boundary line of the district in which such use is authorized; (c) Permit the extension of an existing or proposed building into a more restricted district under such conditions as will safeguard the character of the more restricted district ; " (d) Permit in a residence district a central telephone exchange or any building or use in keeping with the uses expressly enumerated in section 3 as the purposes for which buildings or premises may be erected or used in a residence district; (e) Permit in a business district the erection or extension of a garage or stable in any portion of a street between two intersecting streets in which portion there exists a garage for more than five motor vehicles or a stable for more than five horses at the time of the passage of this resolution ; M (/) Grant in undeveloped sections of the city temporary and conditional permits for not more than two years for structures and uses in contravention of the requirements of this article. (<7) Permit in a business or residence district the erection of a garage provided the petitioner files the consents duly acknowledged of the owners of 80 per cent, of the frontage deemed by the Board to be immediately affected by the proposed garage. Such permit shall specify the maximum size or capacity of the garage and shall impose appropriate conditions and safeguards upon the construction and use of the garage." ARTICLE III HEIGHT DISTRICTS SEC. 8. Height Districts. For the purpose of regulating and limiting the height and bulk of buildings hereafter erected, the City 88 Par. c of sec. 7, amended as above, March 23, 1917. 58 Par. e of sec. 7, amended as above, December 21, 1917. w Par. <7 of sec. 7, amended as above, September 21, 1917. 312 THE LAW OF CITY PLANNING AND ZONING of New York is hereby divided into six classes of districts : (a) three- quarter times districts, (b) one times districts, (c) one and one- quarter times districts, (rf) one and one-half times districts, (r) two times districts, (/) two and one-half times districts; as shown on the height district map which accompanies this resolution and is hereby declared to be part hereof. The height districts designated on said map are hereby established. The height district map desig- nations and map designation rules which accompany said height district map are hereby declared to be part thereof. No building or part of a building shall be erected except in conformity with the regulations herein prescribed for the height district in which such building is located. (a) In a three-quarter times district no building shall be erected to a height in excess of three-quarter times the width of the street, but for each one foot that the building or a portion of it sets back from the street line one foot shall be added to the height limit of such building or such portion thereof. (b) In a one times district no building shall be erected to a height in excess of the width of the street, but for each one foot that the building or a portion of it sets back from the street line two feet shall be added to the height limit of such building or such portion thereof. (c) In a one and one-quarter times district no building shall be erected to a height in excess of one and one-quarter times the width of the street, but for each one foot that the building or a portion of it sets back from the street line two and one-half feet shall be added to the height limit of such building or such portion thereof. (rf) In a one and one-half times district no building shall be erected to a height in excess of one and one-half times the width of the street, but for each one foot that the building or a portion of it sets back from the street line three feet shall be added to the height limit of such building or such portion thereof. (e) In a two times district no building shall be erected to a height in excess of twice the width of the street, but for each one foot that the building or a portion of it sets back from the street line four feet shall be added to the height limit of such building or such portion thereof. (/) In a two and one-half times district no building shall be erected to a height in excess of two and one-half times the width of the street, but for each one foot that the building or a portion of it sets back from the street line five feet shall be added to the height limit of such building or such portion thereof."* SEC. 9. Height District Exceptions, (a) On streets less than 50 feet in width the same height regulations shall be applied as on " Section 8 amended as above November 25, 1921, streets 50 feet in width and, except for the purposes of paragraph d of this section, on streets more than 100 feet in width the same height regulations shall be applied as on streets 100 feet in width* (&) Along a narrower street near its intersection with a wider street, any building or any part of any building fronting on the nar- rower street within 100 feet, measured at right angles to the side of the wider street, shall be governed by the height regulations pro- vided for the wider street. A corner building on such intersecting streets shall be governed by the height regulations provided for the wider street for 150 feet from the side of such wider street, measured along such narrower street. (c) Above the height limit at any level for any part of a build- ing a dormer, elevator bulkhead or other structure may be erected provided its frontage length on any given street be not greater than 60 per cent, of the length of such street frontage of such part of the building. Such frontage length of such structure at any given level shall be decreased by an amount equal to one per cent, of such street frontage of such part of the building for every foot such level is above such height limit. If there are more than one such structures, their aggregate frontage shall not exceed the frontage length above permitted at any given level. (d) If the area of the building is reduced so that above a given level it covers in the aggregate not more than 25 per cent, of the area of the lot, the building above such level shall be excepted from the foregoing provisions of this article. Such portion of the building may be erected to any height, provided that the distance which it sets back from the street line on each street on which it faces, plus half of the width of the street, equals at least 75 feet. But for each one per cent, of the width of the lot' on the street line that such street wall is less in length than such width of the lot, such wall may be erected four inches nearer to the street line. (e) When at the time plans are filed for the erection of a building there are buildings in excess of the height limits herein provided within 50 feet of either end of the street frontage of the proposed building or directly opposite such building across the street, the height to which the street wall of the proposed building may rise shall be increased by an amount not greater than the average excess height of the walls on the street line within 50 feet of either end of the street frontage of the proposed building and at right angles to the street frontage of the proposed building on the opposite side of the street. The average amount of such excess height shall be com- puted by adding together the excess heights above the prescribed height limit for the street frontage in question of all of the walls on the street line of the buildings and parts of buildings within the above defined frontage and dividing the sum by the total number of buildings and vacant plots within such frontage. 314 THE LAW OF CITY PLANNING AND ZONING (/) Nothing in this article shall prevent the projection of a cornice beyond the street wall to an extent not exceeding five per cent, of the width of the street nor more than five feet in any case. Nothing in this article shall prevent the erection above the height limit of a parapet wall or cornice solely for ornament and without windows extending above such height limit not more than five per cent, of such height limit, but such parapet wall or cornice may in any case be at least five and one-half feet high above such height limit. (g) The provisions of this article shall not apply to the erection of church spires, belfries, chimneys, flues or gas holders. (h) Where not more than 50 feet of a street frontage would otherwise be subjected to a height limit lower than that allowed im- mediately beyond both ends of such frontage, the height limit on such frontage shall be equal to the lesser of such greater height limits. (i) If an additional story or stories are added to a building exist- ing at the time of the passage of this resolution, the existing walls of which are in excess of the height limits prescribed in this article, the height limits for such additional story or stories shall be computed from the top of the existing walls as though the latter were not in excess of the prescribed height limits and the carrying up of existing elevator and stair enclosures shall be exempted from the provisions of this article. ARTICLE IV AREA DISTRICTS SEC. 10. Area Districts. For the purpose of regulating and de- termining the area of yards, courts and other open spaces for build- ings hereafter erected, the City of New York is hereby divided into five classes of area districts: A, B, C, D and E; as shown on the area district map which accompanies this resolution and is hereby declared to be part hereof. The area districts designated on said map are hereby established. The area district map designations and map designation rules which accompany said area district map are hereby declared to be a part thereof. No building or part of a building shall be erected except in conformity with the regulations herein prescribed for the area district in which such building is located. Unless otherwise expressly provided the term rear yard, side yard, outer court or inner court when used iu this article shall be deemed to refer only to a rear yard, side yard, outer court or inner court required by this article. No lot area shall be so reduced or diminished that the yards, courts or open spaces shall be smaller than prescribed in this article. SEC. II. A Districts. In an A district a court at any given height shall be at least one inch in least dimension fur each one foot of such height. SEC. 12. B Districts. In a B district a rear yard at any given height shall be at least two inches in least dimension for each one foot of such height. The depth of a rear yard at its lowest level shall be at least 10 per cent, of the depth of the lot, but need not exceed 10 feet at such level. An outer court or a side yard at any given height shall be at least one inch in least dimension for each one foot of such height. An outer court at any given point shall be at least one and one-half inches in least dimension for each one foot of length. But for each one foot that an outer court at any given height would, under the above rules, be wider in its least dimension for such height than the minimum required by its length, one inch shall be deducted from the required least dimension for such height for each 24 feet of such height. A side yard for its length within 50 feet of the street may for the purposes of the above rule be considered an outer court. SEC. 13. C Districts, (a) In a C district a rear yard at any given height shall be at least three inches in least dimension for each one foot of such height. The depth of a rear yard at its lowest level shall be at least 10 per cent, of the depth of the lot but need not exceed 10 feet at such level. An outer court or a side yard at any given height shall be at least one and one-half inches in least dimension for each one foot of such height. An outer court at any given point shall be at least one and one-half inches in least dimension for each one foot of length. On a lot not more than 30 feet in mean width an outer court or a side yard at any given height shall be not less than one inch in least dimension for each one foot of such height, and an inner court at any given height shall be either ( i ) not less than two inches in least dimension for each one foot of such height or (2) it shall be of an equivalent area as hereinafter specified in paragraph c of section 17. (&) If the owner or owners of any part of a C district set aside perpetually for the joint recreational use of the residents of such part designated by them, an area at least equal to 10 per cent, of the area of such part in addition to all yard and court requirements for a B district, such part shall be subject to the regulations herein prescribed for a B district. Such joint recreational space shall be composed of one or more tracts, each of which shall be at least 40 feet in least dimension and 5,000 square feet in area and shall be approved by the Board of Appeals as suitable for the joint recrea- tional use of such residents. SEC. 14. D Districts, (a) In a D district a rear yard at any given height shall be at least four inches in least dimension for each one foot of such height. The depth of a rear yard at its lowest level shall be at least 10 per cent, of the depth of the lot, but need not exceed 10 feet at such level. If a building in a D district is located in a residence district as designated on the use district map, the depth of a rear yard at its lowest level shall be at least 20 per cent, of the 3i6 THE LAW OF CITY PLANNING AND ZONING depth of the lot, but need not exceed 20 feet at such level. How- ever, for each one foot in excess of 10 feet of the depth of such rear yard at its lowest level, there may be substituted one foot of depth of unoccupied space across the whole width of the front of the lot at the curb level, between the street line and the street wall of the building. (&) In a D district an outer court or a side yard at any given height shall be at least two inches in least dimension for each one foot of such height. An outer court at any given point shall be at least two inches in least dimension for each one foot of length. On a lot not more than 30 feet in mean width an outer court or a side yard at any given height shall be not less than one and one-half inches in least dimension for each one foot of such height. On such lot an outer court at any given point shall be not less than one and one-half inches in least dimension for each one foot of length. On such lot an inner court at any given height shall be either (i) not less than three inches in least dimension for each one foot of such height or (2) it shall be of an equivalent area as specified in para- graph c of section 17. (c) In a D district no building located within a residence district as designated on the use district map shall occupy at the curb level more than 60 per cent, of the area of the lot. if an interior lot, or 80 per cent, if a corner lot. In computing such percentage any part of the area of any corner lot in excess of 8,000 square feet shall be considered an interior lot. (rf) If the owner or owners of any part of a D district set aside perpetually for the joint recreational use of the residents of such part designated by them, an area at least equal to 10 per cent, of the area of such part in addition to all yard and court requirements for a C district, such part shall be subject to the regulations herein prescribed for a C district. Such joint recreational space shall be composed of one or more tracts, each of which shall be at least 40 feet in least dimension and 5,000 square feet in area and shall be approved by the Board of Appeals as suitable for the joint recreational use of such residents. SEC. 15. E Districts, (a) In an E district a rear yard at any given height shall be at least five inches in least dimension for each one foot of such height. The depth of a rear yard at its lowest level shall be at least 15 per cent, of the depth of the lot, but need not ex- ceed 15 feet at such level. If a building in an E district is located in a residence district as designated on the use district map, the depth of a rear yard at its lowest level shall be at least 25 per cent, of the depth of the lot, but need not exceed 25 feet at such level. However, for each one foot in excess of 10 feet of the depth of such rear yard at its lowest level there may be substituted one foot of depth of unoc- cupied space across the whole width of the front of the lot at the ZONING IN CANADA AND THE UNITED STATES 317 curb level between the street line and the street wall of the building. In an E district on at least one side of every building located within a residence district there shall be a side yard along the side lot line for the full depth of the lot or back to the rear yard. (&) In an E district an outer court or side yard at any given height shall be at least two and one-half inches in least dimension for each one foot of such height. On a lot not more than 50 feet in mean width an outer court or a side yard at any given height shall be at least two inches in least dimension for each one foot of such height. An outer court at any given point shall be at least two and one-half inches in least dimension for each one foot of length. (c) In an E district no building located within a residence dis- trict as designated on the use district map shall occupy at the curb level more than 50 per cent, of the area of the lot, if an interior lot, or 70 per cent, if a corner lot, and above a level 18 feet above the curb no building shall occupy more than 30 per cent, of the area of the lot, if an interior lot, or 40 per cent, if a corner lot. In com- puting such percentage any part of the area of any corner lot in excess of 8,000 square feet shall be considered an interior lot. SEC. 16. Rear Yards, (a) Except in A districts, for lots or por- tions of lots that are back to back there shall be rear yards extending along the rear lot lines of such lots .or portions of lots wherever they are more than 55 feet back from the nearest street. Such rear yard shall be at least of the area and dimensions herein prescribed for the area district in which it is located at every point along such rear lot line. Within 55 feet of the nearest street no rear yards shall be required. No rear yard shall be required on any corner lot nor on the portion of any lot that is back to back with a corner lot. (b) Where a building is not within a residence district as desig- nated on the use district map, the lowest level of a rear yard shall not be above the sill level of the second story windows, nor in any case more than 23 feet above the curb level. Where a building is within a residence district the lowest level of a rear yard shall not be above the curb level, except that not more than 40 per cent, of the area of the yard may be occupied by the building up to a level 18 feet above the curb level. In the case of a church, whether within or without a residence district, such 40 per cent, may be occupied up to a level of 30 feet above the curb level. (c) Chimneys or flues may be erected within a rear yard provided they do not exceed five square feet in area in the aggregate and do not obstruct ventilation. (d) Except in A districts, where a building on an interior lot between lots for which rear yards are required runs through the block from street to street or to within 55 feet of another street, there shall be on each side lot line above the sill level of the second story windows and in any case above a level 23 feet above the curb 3i8 THE LAW OF CITY PLANNING AND ZONING level a court of at least equivalent area at any given height to that required for an inner court at such height and having a least dimen- sion not less than that required for an outer court at the same height. (e) When a proposed building is on a lot which is back to back with a lot or lots on which there is a building or buildings having rear yards less in depth than would be required under this article, the depth of the rear yard of the proposed building shall not be re- quired to be greater at any given level than the average depth of the rear yards directly back to back with it at such level, but in no case shall the depth of such rear yard be less at any height than the least dimension prescribed for an outer court at such height. SEC. 17. Courts, (a.) If a room in which persons live, sleep, work or congregate receives its light and air in whole or in part directly from an open space on the same lot with the building, there shall be at least one inner court, outer court, side yard or rear yard upon which a window or ventilating skylight opens from such room. Such inner court, outer court or side yard shall be at least of the area and dimensions herein prescribed for the area district in which it is located. Such rear yard shall be at least of the area and dimen- sions herein prescribed for an inner court in the area district in which it is located. In an A district, such inner court, outer court, side yard or rear yard shall be at least of the area and dimensions herein pre- scribed for a court in such district. The unoccupied space within the lot in front of every part of such window shall be not less than three feet, measured at right angles thereto. Courts, yards and other open spaces, if provided in addition to those required by this section, need not be of the area and dimensions herein prescribed. The pro- visions of this section shall not be deemed to apply to courts or shafts for bathrooms, toilet compartments, hallways or stairways. (&) The least dimension of an outer court, inner court or side yard at its lowest level shall be not less than four feet, except that where the walls bounding a side yard within the lot are not more than 25 feet in mean height and not more than 40 feet in length, such least dimension, except in an E district, may be not less than three feet. Where any outer court opens on a street such street may be considered as part of such court. (c) The least dimension of an inner court at any given height shall be not less than that which would be required in inches for each one foot of height for a rear yard of the same height, except that an inner court of equivalent area may be substituted for said court, provided that for such area its least dimension be not less than one-half of its greatest dimension. If an inner court is connected with a street by a side yard for each one foot that such side yard i- than 65 feet in depth from the street, one square foot may be de- ducted from the required area of the inner court for each i~ of height of such court. If the lot is not required under this resolu- ZONING IN CANADA AND THE UNITED STATES 319 tion to have a rear yard, an outer court, not opening on a street, shall open at any level on an inner court on the rear line of the lot and such inner court shall be deemed a rear yard in such case. SEC. 18. Area District Exceptions, (a) The area required in a court or yard at any given level shall be open from such level to the sky unobstructed, except for the ordinary projections of skylights and parapets above the bottom of such court or yard, and except for the ordinary projections of window sills, belt courses, cornices and other ornamental features to the extent of not more than four inches. However, where a side yard or an outer court opens on a street a cornice may project not over five feet into such side yard or outer court within five feet of the street wall of the building. And pro- vided that in an E district a one-family residence, detached on all sides and having on one side a side yard of a clear and unobstructed width of not less than five feet, may have a cornice or eave project- ing not more than two feet six inches into a side yard on the opposite side. 88 (&) An open or lattice enclosed iron fire escape, fireproof outside stairway or solid-floored balcony to a fire tower may project not more than four feet into a rear yard or an inner court, except that an open or lattice enclosed iron fire escape may project not more than eight feet into a rear yard or into an inner court when it does not not occupy more than 20 per cent, of the area of such inner court. (c) A corner of a court or yard may be cut off between walls of the same building provided that the length of the wall of such cut-off does .not exceed seven feet. (d) An offset to a court or yard may be considered as a part of such court or yard provided that it is no deeper in any part than it is wide on the open side and that such open side be in no case less than six" feet wide. (e) If a building is erected on the same lot with another build- ing the several buildings shall, for the purposes of this article, be considered as a single building. Any structure, whether independent of or attached to a building, shall for the purposes of this article be deemed a building or a part of a building. (/) If an additional story or stories are added to a building existing at the time of the passage of this resolution, the courts and yards of which do not conform to the requirements of this article, the least dimensions of yards and courts shall be increased from the top of the existing yard or court walls, as though they were of the prescribed dimensions at such heights and the carrying up of existing elevator and stair enclosures shall be exempted from the provisions of this article. 58 Par. a of sec. 18, amended as above, September 21, 1917. 320 THE LAW OF CITY PLANNING AND ZONING ARTICLE V GENERAL AND ADMINISTRATIVE SEC. 19. Interpretation; Purpose. In interpreting and applying the provisions of this resolution, they shall be held to be the minimum requirements adopted for the promotion of the public health, safety, comfort, convenience and general welfare. It is not intended by this resolution to repeal, abrogate, annul or in any way to impair or interfere with any existing provision of law or ordinance or any rules, regulations or permits previously adopted or issued or which shall be adopted or issued pursuant to law relating to the use of buildings or premises; nor is it intended by this resolution to inter- fere with or abrogate or annul any easements, covenants or other agreements between parties ; provided, however, that where this reso- lution imposes a greater restriction upon the use of buildings or premises or upon height of buildings or requires larger yards, courts or other open spaces than are imposed or required by such existing provision of law or ordinance or by such rules, regulations or permits or by such easements, covenants or agreements, the provisions of this resolution shall control. SEC. 20. Rules and Regulations; Modifications of Provisions. The Board of Standards and Appeals, created by chapter 503 of the laws of 1916, shall adopt from time to time such rules and regulations as they may deem necessary to carry into effect the provisions of this resolution. Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this resolution the Board of Appeals shall have power in a specific case to vary any such provision in harmony with its general purpose and intent, so that the public health, safety and general welfare may be secured and substantial justice done. Where the street layout actually on the ground varies from the street layout as shown on the use, height or area district map, the designation shown on the mapped street shall be applied by the Board of Appeals to the unmapped streets in such a way as to carry out the intent and purpose of the plan for the particular section in question. Before taking any action authorized in this section the Board of Appeals shall give public notice and hearing. No garage for more than five cars may be erected or extended and no building not now used as a garage for more than five cars may have its use changed to a garage for more than five cars on any portion of a street between two intersecting streets in which portion there exists an exit from or an entrance to a public school; or in which portion there exists any hospital maintained as a charitable institution; and in no case within a distance of 200 feet from the nearest exit from or entrance to a public school; nor within two hun- dred fi.-it i if any hospital maintained as a charitable institution. This protection shall also annlv to duly organized schools for children ZONING IN CANADA AND THE UNITED STATES 321 under 16 years of age, giving regular instruction at least five days a week for eight months or more each year, owned and operated by any established religious body or educational corporation. This limita- tion on the location of garages shall apply to unrestricted as well as business and residence districts; but in no case shall it apply to cases where applications for the erection or extension of garages or the conversion of existing buildings into garages may be pending before the Board of Appeals at the time of the adoption of this resolution." SEC. 21. Unlawful Use; Certificate of Occupancy. It shall be unlawful to use or permit the use of any building or premises or part thereof hereafter created, erected, changed or converted wholly or partly in its use or structure until a certificate of occupancy to the effect that the building or premises or the part thereof so created, erected, changed or converted and the proposed use thereof conform to the provisions of this resolution shall have been issued by the superintendent of buildings of the borough in which such building or premises is located, or, in the case of a tenement house as defined in the Tenement House Law, by the tenement house commissioner. In the case of such buildings or premises it shall be the duty of the superintendent of buildings or the tenement house commissioner, as the case may be, to issue a certificate of occupancy within ten days after a request for the same shall be filed in his office by any owner of a building or premises affected by this resolution, provided said building or premises, or the part thereof so created, erected, changed or converted, and the proposed use thereof, conforms with all the requirements herein set forth. Under rules and regulations of the Board of Standards and Appeals a temporary certificate of occupancy for a part of a building may be issued by the superintendent of buildings or the tenement house commissioner as the case may be. Upon written request from the owner, the superintendent of build- ings or the tenement house commissioner, as the case may be, shall issue a certificate of occupancy for any building or premises existing at the time of the passage of this resolution certifying after inspec- tion the use of the building or premises and whether such use con- forms to the provisions of this resolution. SEC. 22. Enforcement, Legal Procedure, Penalties. This resolu- tion shall be enforced by the tenement house commissioner, the fire commissioner and by the superintendent of buildings in each borough under the rules and regulations of the Board of Standards and Ap- peals. The tenement house commissioner shall enforce the provisions herein contained in so far as they affect or relate to tenement houses as defined by the Tenement House Law. The superintendent of build- ings shall in each borough enforce the provisions herein contained in 89 Final paragraph added to sec. 20, June 6, 1919, and amended June 20, 1919. 322 THE LAW OF CITY PLANNING AND ZONING so far as they relate to buildings or premises other than tenement houses. The fire commissioner shall enforce the provisions herein contained in so far as they relate to the use of completed buildings or premises, or part thereof, other than tenement houses. For any and every violation of the provisions of this resolution or of the rules and regulations adopted thereunder, the owner, general agent or contractor of a building or premises where such violation has been committed or shall exist, and the lessee or tenant of an entire building or entire premises where such violation has been committed or shall exist, and the owner, general agent, contractor, lessee or tenant of any part of a building or premises in which part such violation has been committed or shall exist, and the general agent, architect, builder, contractor or any other person who commits, takes part or assists in such violation or who maintains any building or premises in which any such violation shall exist, shall be liable to the same legal procedure and the same penalties as are prescribed in any law, statute or ordinance for violations of the Building Code, and for such violations the same legal remedies shall be had and they shall be prosecuted in the same manner as prescribed in any law or ordi- nance in the case of violations of said Building Code. SEC. 23. Amendments, Alterations and Changes in District Lines. The Board of Estimate and Apportionment may from time to time on its own motion or on petition, after public notice and hearing, amend, supplement or change the regulations and districts herein established. Whenever the owners of 50 per cent, or more of the frontage in any district or part thereof shall present a petition duly signed and acknowledged to the Board of Estimate and Apportion- ment requesting an amendment, supplement, change or repeal of the regulations prescribed for such district or part thereof, it shall be the duty of the Board to vote upon said petition within 90 days after the filing of the same by the petitioners with the secretary of the Board. If, however, a protest against such amendment, supplement or change be presented, duly signed and acknowledged by the owners of 20 per cent, or more of any frontage proposed to be altered, or by the owners of 20 per cent, of the frontage immediately in the rear thereof, or by the owners of 20 per cent, of the frontage directly opposite the frontage proposed to be altered, such amendment shall not be passed except by the unanimous vote of the Board. If any area is here- after transferred to another district by a change in district bound- aries by an amendment, as above provided, the provisions of this resolution in regard to buildings or premises existing at the time of the passage of this resolution shall apply to buildings or premises existing at the time of passage of such amendment in such trans- ferred area. SEC. 24. Completion- and Restoration of Existing Buildings, (a) Nothing herein contained shall require any change in the plans, con- ZONING IN CANADA AND THE UNITED STATES 323 Struction or designated use of a building for which a building per- mit has been heretofore issued, or plans for which are on file with the building superintendent or with the tenement house department at the time of the passage of this resolution, and a permit for the erection of which is issued within three months of the passage of this resolution and the construction of which, in either case, shall have been diligently prosecuted within a year of the date of such permit, and the ground story framework of which, including the second tier of beams, shall have been completed within such year, and which entire building shall be completed according to such plans as filed within five years from the date of the passage of this resolu- tion. Provided, however, that any plan, other than a plan for a garage for more than five motor vehicles, filed with the building superintendent or with the tenement house department on July 26, or July 27, 1916, and a permit for the erection of which is issued prior to December 25, 1916, shall be deemed to have been filed at the time of the passage of this resolution. Provided, also, that the Board of Appeals may, after public notice and hearing, extend for not to exceed one year, or, in cases where one such extension may have been granted, may further extend for one year the time within which such ground-story framework, including the second tier of beams, shall be completed in any case, where, in the judgment of said Board, actual construction or fabrication was begun early enough to allow under the then existing conditions adequate time for completion as above specified, and where such construction or fabrication was diligently prosecuted and where such completion has been prevented by condi- tions impossible to foresee and beyond the control of the owner and builder. 80 (b) Nothing in this resolution shall prevent the restoration of a building wholly or partly destroyed by fire, explosion, act of God or act of the public enemy or prevent the continuance of the use of such building or part thereof as such use existed at the time of such destruction of such building or part thereof or prevent a change of such existing use under the limitations provided in section 6. Noth- ing in this resolution shall prevent the restoration of a wall declared unsafe by the superintendent of buildings or by a board of survey. SEC. 25. When Effective. This resolution shall take effect imme- diately. No. 7. THE MILWAUKEE, WISCONSIN, ORDINANCE 120 AN ORDINANCE To create Sections 26.3 to 26.77 of the Milwaukee Code of 1914, constituting Chapter Ill-a thereof, regulating and restricting the 80 Par. a of sec. 24, amended as above, December 15, 1916, October 19, 1917, and April 25, 1919. 324 THE LAW OF CITY PLANNING AND ZONING location of trades and industries and the location of buildings designed for specified uses, and regulating and limiting the height and bulk of buildings hereafter erected, and regulating and determining the area of yards, courts and other open spaces surrounding buildings, and establishing the boundaries for the said purposes. The Mayor and the Common Council of the City of Milwaukee do ordain as follows: SEC. i. There are added to the Milwaukee Code of 1914 twenty- eight (28) new sections constituting Chapter Ill-a thereof to read: CHAPTER III-A BUILDING ZONES Article I. Definitions SEC. 26.3. Certain words in this chapter are defined as follows: Words used in the present tense include the future; the singular number includes the plural and the plural the singular; the word lot includes the word plot; the word building includes the word structure. Private Garage. A private garage is a garage for not more than four automobiles, for storage only, and intended for private use, but in which space may be rented for storage only of not more than two non-commercial automobiles by others than the occupants of the build- ing to which such garage is accessory. Non-conforming Building or Use. A non-conforming building or use is one that does not conform with the regulations of a given use district. Lot. A lot is a parcel of land in a single ownership occupied by not more than one building and the accessory buildings or uses cus- tomarily incident to it, including such open spaces as are required by this chapter. Corner Lot. A corner lot is a lot or portion of a lot not more than fifty feet wide at the junction of and fronting on two intersect- ing streets. Any portion of a lot more than fifty feet distant from that street with the greater frontage shall comply with all the pro- visions of this chapter respecting interior lots. Interior Lot. An interior lot is a lot other than a corner lot. Depth of Lot. The depth of a lot is the mean distance from the street line of the lot to its rear line measured in the general direction of the side lines of the lot. Street Line. The street line is the dividing line between the street and the lot. Rear Yard. A rear yard is an open, unoccupied space on the sann- lot with a building between the rear line of the building and the rear line of the lot unobstructed to the sky. ZONING IN CANADA AND THE UNITED STATES 325 Side Yard. A side yard is an open unoccupied space on the same lot with a building situated between the building and the side line of the lot and extending through from the street to the rear yard, or where no rear yard is required, to the rear line of the lot. Outer Court. An outer court is an open, unoccupied space other than a yard on the same lot with a building extending to either the street, alley or the rear yard. Inner Court. An inner court is an open, unoccupied space on the same lot with a building not extending to either the street, alley or the rear yard. Width of a Yard or Court. The width of a yard or court is its least horizontal dimension at its lowest level. Length of an Outer Court. The length of an outer court is the horizontal distance between the end opening on a street or rear yard and the end opposite such street or rear yard. Height of a Yard or Court. The height of a yard or court is the vertical distance from the lowest level of such yard or court to the highest point of any bounding wall. Half Story. A half story is a story which is situated in a sloping roof, the floor area of w T hich does not exceed two-thirds of the floor area of the story immediately below it and which does not contain an independent apartment. Building Area. The building area is the maximum horizontal pro- jected area of a building and its accessories. Definition of Other Words as in Chapter IV. Any words not defined herein shall be construed as defined or construed in Chapter IV, Milwaukee Code of 1914. Article 2. Use Districts SEC. 26.4. Establishment of Use Districts. For the purpose of regulating and restricting the location of trades and industries and the location of buildings designed for specified purposes, the City of Milwaukee is hereby divided into four classes of districts; residence districts ; local business districts ; commercial and light manufacturing districts; and industrial districts; as shown on the use district map which accompanies this chapter and is hereby declared to be part hereof. The use districts designated on said map are hereby estab- lished. The use district designations which accompany said use dis- trict map are hereby declared to be part thereof. No building, struc- ture or premises shall be erected or used for any purpose other than a purpose permitted in the use district in which such building, struc- ture or premises is located. SEC. 26.41. Uses Permitted in Residence Districts. In a residence district no building, structure or premises shall be used and no build- ing or structure shall be erected which is arranged, intended or de- 326 THE LAW OF CITY PLANNING AND ZONING signed to be used except for one or more of the following specified uses: 1. Single family dwellings, two family dwellings, apartment or tenement houses. 2. Lodging or boarding houses, dormitories or convents. 3. Hotels. 4. Clubs, excepting clubs the chief activity of which is a service customarily carried on as a business. 5. Churches. 6. Schools, colleges, libraries or public museums. 7. Philanthropic and eleemosynary uses or institutions, other than correctional institutions. 8. Hospitals or sanitaria. 9. Railroad passenger stations. 10. Farming, truck gardening, nurseries or greenhouses. 11. Accessory uses customarily incident to the above uses. The term accessory use shall not include a. A business outside the building to which it is accessory, or which occupies a total floor area in excess of 25% of the floor area of one story of such building, or which by reason of the appearance of the building or premises, or the emission of odor, smoke, dust or noise or in any other way is objectionable or detrimental to the resi- dential character of the neighborhood, or which involves features in design not customary in buildings for the above uses or any struc- tural alteration of the building. b. A garage other than a private garage on a lot occupied by not more than two families. c. A group of private garages for more than four automobiles. d. The storage of not more than one commercial vehicle. 12. Telephone central offices. 13. In undeveloped sections of the city a temporary building or use incidental to the residential development erected and so used for a period of two years from the date of the permit. SEC. 26.42. Uses Prohibited in Local Business Districts. In a local business district no building or premises shall be used, and no building shall be erected which is arranged, intended or designed to be used for any of the following specified trades, industries or uses: 1. Any kind of manufacturing other than the manufacturing of products the major portion of which are to be sold at retail on the premises to the ultimate consumer. 2. A blacksmith shop or horseshoeing establishment. 3. A milk bottling or distributing station. 4. A carpet or bag cleaning establishment. 5. A coal yard or lumber yard. 6. Any trade, industry or use prohibited by Section 26.43 ' n a commercial and light manufacturing district. ZONING IN CANADA AND THE UNITED STATES 327 No use permitted in a residence district by Section 26.41 shall be excluded from a local business district. SEC. 26.43. Uses Prohibited in Commercial and Light Manufac- turing Districts. In a commercial and light manufacturing district no building or premises shall be used, and no building shall be erected which is arranged, intended or designed to be used for any of the following specified trades, industries or uses:* 1 45. Any other trade, industry or use that is noxious or offensive by reason of the emission of odor, dust, smoke, gas or noise, but car barns or places of amusement shall not be excluded. No use permitted in a residence district by Section 26.41 or in a local business district by Section 26.42 shall be excluded from a com- mercial and light manufacturing district. SEC. 26.44. Uses Prohibited in Industrial Districts. In an indus- trial district no building shall be used, and no building shall be erected which is arranged, intended or designed to be used in whole or in part as a dwelling or tenement for one or more families. This pro- vision shall, however, not prohibit the erection and maintenance of dwelling quarters in connection with any industrial establishment for watchmen employed upon the premises, nor of dwellings in unde- veloped sections for a period of five years from the date of the permit. No other use permitted in a residence, local business or commercial and light manufacturing district shall be excluded from an industrial district. SEC. 26.45. Exceptions as to Existing Buildings and Uses. Any non-conforming use existing at the time of the passage of this chapter may be continued and any existing building designed, arranged, in- tended or devoted to a non-conforming use may be reconstructed or structurally altered, and the non-conforming use therein changed subject to the following regulations: 1. The structural alterations made in such a building shall not during its life exceed fifty per cent of its assessed value, nor shall the building be enlarged, unless the use therein is changed to a con- forming use. 2. No non-conforming use shall be extended by displacing a con- forming use. 3. In a residence district no building or premises devoted to a use permitted in a local business district shall be changed into a use not permitted in a local business district. 4. In a residence or local business district no building or premises devoted to a use permitted in a commercial and light manufacturing district shall be changed into a use not permitted in a commercial and light manufacturing district. 5. In a residence, local business or commercial and light manu- 81 The lists of industries pars. 1-44 is omitted. See the list given in thq New York City resolution, p. 308 of this work and note to same. 328 THE LAW OF CITY PLANNING AND ZONING facturing district no building devoted to a use excluded from a com- mercial and light manufacturing district shall be structurally altered if its use shall have been changed since the time of the passage of this chapter to another use also excluded from a commercial and light manufacturing district. A change of use for the purpose of this subdivision shall be deemed to include any change from a use included in an enumerated subdivision of Section 26.43 to a use included in another enumerated subdivision of Section 26.43. 6. In a residence, local business or commercial and light manu- facturing district no building devoted to a use excluded from a com- mercial and light manufacturing district shall have its use changed to another use which is also excluded from a commercial and light manufacturing district if the building shall have been structurally altered since the time of the passage of this chapter. A change of use for the purpose of this subdivision shall be deemed to include any change from a use included in an enumerated subdivision of Section 26.43 to a use included in another enumerated subdivision of Section 26.43- SEC. 26.46. Public Service Corporation Uses. A structure or premises may be erected or used in any location by a public service corporation for any purpose which the railroad commission decides is reasonably necessary for the public convenience or welfare. Article 3. Height Districts SEC. 26.5. Establishment of Height Districts. For the purpose of regulating and limiting the height and bulk of buildings hereafter erected, the City of Milwaukee is hereby divided into four classes of districts ; one hundred and twenty-five foot districts ; eighty-five foot districts; sixty foot districts; and forty foot districts; as shown on the height district map which accompanies this ordinance and is hereby declared to be part hereof. The height districts designated on said map are hereby established. The height district map designa- tions which accompany said height district map are hereby declared to be part thereof. No building or part of a building shall be erected except in conformity with the regulations herein prescribed for the height district in which such building is located. SEC. 26.51. Height Limitations in One Hundred and Twenty- fire Foot Districts. In a one hundred and twenty-five foot district no building shall be erected to a height in excess of one hundred and twenty-five feet, and no buildings used in any part for residence purposes shall be in excess of eight stories; but nothing in this sec- tion shall prevent the erection on a business building of a tower, to a height of two hundred and twenty-five feet, provided : ( i ) that the area of such tower above the general height limit fixed for build- ings by the preceding section shall not be in excess of twenty-five per ZONING IN CANADA AND THE UNITED STATES 320 cent of the area of the building; and (2) that an open space shall be left above the general height limit fixed for buildings by this section on each and every lot line which is not also a street line, such open space being at least of the minimum dimensions prescribed by Sec- tion 26.61 for a side yard in an A area district for a building having a height equal to the maximum height of the tower above the curb level. SEC. 26.52. Height Limitations in Eighty-five Foot Districts. In an eighty-five foot district no building shall be erected to a height in excess of eighty-five feet, and no building used in any part for resi- dence purposes shall be in excess of six stories. SEC. 26.53. Height Limitations in Sixty Foot Districts. In a sixty foot district no building shall be erected to a height in excess of sixty feet, and no building used in any part for residence purposes shall be in excess of four stories. SEC. 26.54. Height Limitations in Forty Foot Districts. In a forty foot district no building, except as hereinafter provided for, shall be erected to a height in excess of forty feet, and no building used in any part for residence purposes by more than one family shall be in excess of two and one-half stories; provided, however, that in a local business district where a building is used for business purposes only, this height may be increased by not to exceed ten feet. A building used as a single family residence, erected on a lot pro- viding a side yard of forty feet in width on each side of said build- ing, may be erected to a height of forty-five feet. SEC. 26.55. Exceptions to Height Limitations. The provisions of this article shall not apply to the erection of the following struc- tures : 1. Chimneys, flues, grain elevators or gas holders. 2. Water towers or tanks other than those located on the roof of a building. 3. Bulkheads, elevator inclosures, towers, monitors, penthouses, skylights or water tanks occupying in the aggregate less than twenty- five per cent of the area of the roof on which they are located. 4. Parapet walls or cornices extending above the height limit not more than five feet. 5. Monuments, towers, spires, church roofs, domes, cupolas or belfries for ornamental purposes and not used for human occupancy. 6. Churches, convents, schools, dormitories, colleges, libraries, public museums, hospitals and sanitaria in a forty or sixty foot height district; provided, however, that such buildings or portions thereof exceeding the height limit of the district be set back from lot lines a distance equal to ^ the height of such building or portion thereof and also be set back from the street or alley lines a distance equal to l /2 the height of such building or portion thereof less 10 feet. 7. Structures erected prior to the passage of this chapter, the 330 THE LAW OF CITY PLANNING AND ZONING foundations of which have been completed and which were designed to carry structures above the height provided herein, shall not exceed the height provided for in the design of the foundation and in no event shall exceed the 185 ft. height, provided, however, that such structures shall be completed within five (5) years from the date of the passage and publication of this chapter. Article 4. Area Districts SEC. 26.6. Establishment of Area Districts. For the purpose of regulating and determining the area of yards, courts and other open spaces for buildings hereafter erected, the City of Milwaukee is hereby divided into four classes of area districts : A, B, C and D ; as shown on the area district map which accompanies this chapter and is hereby declared to be part hereof. The area districts desig- nated on said map are hereby established. The area district map designations which accompany said area district map are hereby declared to be a part thereof. No building or part of a building shall be erected and no existing building shall be altered, enlarged or rebuilt except in conformity with the regulations herein prescribed for the area district in which such building is located. Required Yards and Courts. Every room in which one or more persons live, sleep, work or congregate, except storage rooms or other rooms where the nature of the occupancy does not require direct light and air from the outside, shall have a window area equal to one-tenth of the floor area of the room. Such windows and others which are required by the building code shall open directly either upon a street or alley or upon a rear yard, side yard, outer court or inner court located upon the same lot and conforming to the require- ments prescribed by this article as to its minimum area and least dimensions. Yards and Courts, When Not Required. The provisions of this article shall not be deemed to apply to courts or shafts for bathrooms, toilet compartments, hallways or stairways, nor shall they apply to yards and courts which may be provided in addition to those re- quired by this article. No Reduction of Yards or Courts Allowed. No lot area shall at any time be so reduced or diminished that the yards, courts or open spaces shall be smaller than prescribed by this article. SEC. 26.61. Regulations in A Districts. The following regula- tions shall apply to A Districts: Rear Yards. No rear yard shall be less than ten feet wide on an interior lot, nor less than five feet wide on a corner lot for a building two stories or less in height. At each additional story height the width of such rear yard shall be increased one foot. Side Yards. No side yard shall be less than three feet wide for a ZONING IN CANADA AND THE UNITED STATES 331 building two stories or less in height and eighty feet or less in length. At each additional story height the width of such side yard shall be increased one foot, and for any additional length the width of such side yard shall be further increased at the rate of one foot in twenty feet. Outer Courts. No outer lot-line court shall be less than three feet wide for a court two stories or less in height and forty feet or less in length. At each additional story height the width of such court shall be increased one foot, and for any additional length the width of such court shall be further increased at the rate of one foot in fifteen feet. No outer court not on a lot line shall be less than six feet wide for a court two stories or less in height and forty feet or less in length. At each additional story height the width of such court shall be increased one foot, and for any additional length the width of such court shall be further increased at the rate of one foot in ten feet. Inner Courts. No inner lot-line court shall be less than six feet in width nor less than sixty square feet in area for courts two stories or less in height, except that an inner lot-line court one story high shall be not less than four feet wide and not less than forty square feet in area. At each additional story height every such court shall be increased by at least one lineal foot in its length and one lineal foot in its width. No inner court not on a lot line shall be less than ten feet in width nor less than one hundred and fifty square feet in area for courts two stories or less in height. At each additional story height every such court shall be increased by at least one lineal foot in its length and one lineal foot in its width. Exceptions. Any building erected or used in any part for resi- dence purposes shall be erected in conformity with the provisions pre- scrihjpd by Section 26.62 for B districts, and as provided for in Sec- tion 26.65. SEC. 26.62. Regulations in B Districts. The following regula- tions shall apply in B Districts: Rear Yards. No rear yard shall be less than fifteen feet wide on an interior lot nor less than ten feet wide on a corner lot for a build- ing two stories or less in height. At each additional story height the width of such rear yard shall be increased one and one-half feet. Side Yards. No side yard shall be less than four feet wide for a building two stories or less in height and sixty feet or less in length. At each additional story height the width of such side yard shall be increased one foot, and for any additional length the width of such side yard shall be further increased at the rate of one foot in fifteen feet. On a lot improved with two side yards if the southerly or easterly of such yards exceeds the width required by this paragraph by one foot the other side yard may be reduced in width one foot. 332 THE LAW OF CITY PLANNING AND ZONING Outer Courts. No outer lot-line court shall be less than five feet wide for a court two stories or less in height and thirty feet or less in length. At each additional story height the width of such court shall be increased one foot, and for any additional length the width of such court shall be further increased at the rate of one foot in ten feet. No outer court not on a lot line shall be less than eight feet wide for a court two stories or less in height and thirty feet or less in length. At each additional story height the width of such court shall be increased one foot, and for any additional length the width of such court shall be further increased at the rate of one foot in eight feet. Inner Courts. No inner lot-line court shall be less than six feet in width nor less than sixty square feet in area for courts two stories or less in height. At each additional story height every such court shall be increased by at least one and one-half lineal feet in its length and one lineal foot in its width. No inner court not on a lot line shall be less than ten feet in width nor less than one hundred and fifty square feet in area for courts two stories or less in height. At each additional story height every such court shall be increased by at least two lineal feet in its length and one and one-half lineal feet in its width. Setbacks. Setbacks are required and shall conform to the regula- tions prescribed by Section 26.63 f r setbacks in 'C' Districts. Building Area. No building shall occupy more than seventy per cent of the area of an interior lot, nor more than eighty-five per cent of a corner lot. Exceptions. For exceptions see Section 26.65. SEC. 26.63. Regulations in C Districts. The following regula- tions shall apply in C Districts: Rear Yards. No rear yard shall be less than twenty feet wide on an interior lot nor less than ten feet wide on a corner lot for a build- ing two stories or less in height. For each additional story in height the width of such rear yard shall be increased three feet. Side Yards. No side yard shall be less than five feet wide for a building two stories or less in height and fifty feet or less in length. For each additional story in height the width of such side yard shall be increased one and one-half feet, and for any additional length the width of such side yard shall be further increased at the rate of one foot in ten feet. On a lot improved with two side yards for i-ach foot that the southerly or easterly of such side yards exceeds the width required by this paragraph the other side yard may be minced one foot, but in no case shall such side yard be less than three feet wide. On a lot having a width of less than thirty -three and one-half feet at the time it is placed in a C District and improved with two side yards the width of each of such yards may be reduced one foot. On a vacant lot or on two adjacent vacant lots having a width of ZONING IN CANADA AND THE UNITED STATES 333 thirty (30) feet or less, at the time they are placed in a C District and adjacent lots on both sides of such lots are thirty (30) feet wide or less with buildings already erected upon them which buildings are so located on the respective lots as to leave a side yard on the north or west side of such buildings of at least eighteen (18) inches and on the south or east side of such buildings of at least four (4) feet, the improvements upon such vacant lots may be so placed so as to leave a side yard on the north or west side of not less than eigh- teen (18) inches and on the south or east side of not less than four (4) feet. Outer Courts. No outer lot-line court shall be less than seven feet wide for a court two stories or less in height and thirty feet or less in length. For each additional story in height the width of such court shall be increased one and one-half feet, and for any additional length the width of such court shall be further increased at the rate of one foot in eight feet. No outer court not on a lot line shall be less than ten feet wide for a court two stories or less in height and thirty feet or less in length. For each additional story in height the width of such court shall be increased two feet, and for any additional length the width of such court shall be further increased at the rate of one foot in six feet. Inner Courts. No inner lot-line court shall be less than eight feet in width nor less than one hundred square feet in area for courts two stories or less in height. For each additional story in height every such court shall be increased by at least three lineal feet in its length and two lineal feet in its width. No inner court not on a lot line shall be less than fourteen feet in its width nor less than two hundred and eighty square feet in area for' courts two stories or less in height. For each addifional story in height every such court shall be increased by at least four lineal feet in its length and three lineal feet in its width. Setbacks. Where in a residence district as designated on the use district map at least one-quarter of the frontage oh either side of a street between two intersecting streets is improved with buildings and at least one-half of the buildings so situated conform to a minimum setback line no new building shall be erected and no existing build- ing shall be reconstructed or altered to project beyond such setback line unless an open space be left on each side of the building beyond such setback line. Each of these open spaces shall have at every point a minimum width, in addition to the width of any prescribed yards or courts, equal to at least twice the number of feet that such point projects beyond such setback line, provided that on a lot between and adjoining two lots, each with a building projecting beyond such setback line, those portions of such open spaces that are back of the* front line of the building with the lesser projection may be omitted; 334 THE LAW OF CITY PLANNING AND ZONING Building Area. No building shall occupy more than fifty per cent of the area of an interior lot, nor more than sixty per cent of a corner lot, provided that when a building is used for business purposes only, no building shall occupy more than seventy (70) per cent of the area of an interior lot, nor more than eighty-five (85) per cent of a corner lot. Number of Families Housed. No dwelling or apartment house shall hereafter be erected or altered to accommodate or make pro- vision for more than fifty families on any acre of land nor more than a proportional number of families on a fractional part of any acre of land, provided, however, in a local business district not more than twenty families per acre may be housed. The maximum number of families which may hereafter be housed on any plot of ground shall not exceed the integral number obtained by multiplying the acreage of such plot, exclusive of the area within street lines, by fifty, or in a local business district by twenty. Exceptions. For exceptions see Section 26.65. SEC. 26.64. Regulations in D Districts. The following regula- tions shall apply to D Districts: Rear Yards. No rear yard shall be less than twenty-five feet wide on an interior lot nor less than ten feet wide on a corner lot for a building two stories or less in height. For each additional story in height the width of such rear yard shall be increased six feet. Side Yards. No side yard shall be less than six feet wide for a building two stories or less in height and fifty feet or less in length. For each additional story in height the width of such side yard shall be increased three feet, and for any additional length the width of such side yard shall be further increased at the rate of one foot in eight feet. At least one side yard shall be provided on every lot located in a residence district as designated on the use district map. On a lot having a width of less than thirty-seven feet at the time it is placed in a D District and improved with two side yards the width of each of such yards may be reduced one foot. On a lot having a width of less than thirty-three and one-half feet at the time it is placed in a D District and improved with two side yards the width of each of such yards may be reduced two feet. On a lot improved with two side yards for each foot that the southerly or easterly of such side yards exceeds the width required by this paragraph the other side yard may be reduced one foot, but in no case shall the side yard be less than three feet wide. On a vacant lot or on two adjacent vacant lots having a width of thirty feet or less at the time they are placed in a 'D' district and adjacent lots on both sides of such lots are thirty feet wide or less with buildings already erected upon them, which buildings are so located on the respective lots as to leave a side yard on the north or west side of such buildings of at least eighteen inches and on the south or east side of such buildings of at least four feet, ZONING IN CANADA AND THE UNITED STATES 335 the improvements upon such vacant lots may be so placed as to leave a side yard on the north or west side of not less than eighteen inches and on the south or east side of not less than four feet. Courts and Setbacks. All courts and setbacks shall conform to the regulations prescribed by Section 26.63 f r courts and setbacks in C Districts. In a residence district as designated on the use district map all windows required by the building code shall open directly either upon a street or upon a rear yard or side yard, provided that on an interior lot having a width of less than thirty-five feet at the time it is placed in a D District such windows may open on an outer lot-line court. Building Area. No building shall occupy more than thirty per cent of the area of an interior lot, nor more than forty per cent of a corner lot, provided that on an interior lot containing at the time it is placed in a D District less than one-tenth of an acre a building may be erected so as to occupy not more than one thousand three hundred square feet nor more than thirty-five per cent of such lot. Number of Families Housed. No dwelling or apartment house shall hereafter be erected or altered to accommodate or make provi- sion for more than twenty families on any acre of land nor more than a proportional number of families on a fractional part of any acre of land. The maximum number of families which may hereafter be housed on any plot of ground shall not exceed the integral number obtained by multiplying the acreage of such plot, exclusive of the area within street lines, by twenty. The limitation imposed by this section shall, however, not prohibit the erection of a single family dwelling on any lot containing at the time it is placed in a D District an area of less than one-twentieth of an acre, nor the erection of a two-family dwelling on any lot containing at the time it is placed in a D 'District more than one-fifteenth of an acre. Exception.. Where a lot is not within a residence district as desig- nated on the use district map all yards and building areas shall con- form to the regulations prescribed by Section 26.63 f r yards and building areas in C Districts. SEC. 26.65. General Regulations in Area Districts. The follow- ing regulations shall apply to all area districts unless specifically excepted. Height of Buildings Interpreted in Stories. In applying the requirements of this article the first story shall be considered as being not more than twenty feet high and for each additional thirteen feet or fraction thereof the building shall be considered to have at least one additional story. Building Area Limitation, Where Applied. The limitation of building area in this article shall apply at the curb level in the case of a building located in a residence district as designated on the use district map and at the sill level of the second story windows, but not 336 THE LAW OF CITY PLANNING AND ZONING more than twenty-three feet above the curb level in the case of a building located in a district other than a residence district as desig- nated on the use district map. Rear Yard, When Required. In B, C and D Districts there shall be a rear yard on every lot, or portion thereof, the rear line of which is more than fifty feet back from the front street line. In A Districts there shall be a rear yard on every lot, the rear of which abuts on an alley. Rear Yard, When Not Required. A corner lot or an interior lot running through the block from street to street or to within fifty feet of another street shall not be required to provide a rear yard. Rear Yard, Computation of Depth. In computing the depth of a rear yard abutting on a street or alley the measurement may include one-half the width of such street or alley, but in no case exceeding ten feet. Rear Yard, Reduction in Size. On a lot less than one hundred feet deep the width of a rear yard required in preceding sections of this article for a building two stories or less in height may be reduced one per cent for each foot such lot is less than one hundred feet in depth, provided that such reduction shall in no case exceed one-half the required width. For each additional story in height the width of such yard shall be increased by the amounts required by preceding sections of this article. Rear Yard, Level of. Where a lot is not within a residence dis- trict as designated on the use district map, the lowest level of a rear yard shall not be above the sill level of the second story windows nor in any case more than twenty-three feet above the curb level. Where a lot is within a residence district as designated on the use district map the lowest level of a rear yard shall not be above the curb level or the level of the ground back of the building whichever is the highest, and not above the sill level of the first story windows in any case. Accessory Buildings. Accessory buildings in C and D Districts may occupy ten per cent of the lot area in addition to the building area limitations up to a height of fifteen feet measured from the ground floor of such buildings to the roofplate thereof, provided that in a residence district not more than forty per cent of required of a rear yard is occupied by such accessory buildings. On a lot in a D District as designated on the area district map and not occupied by more than one family, where a lot exceeds 12,000 sq. ft. in one additional automobile may be housed in addition to four automo- biles for each 3,000 sq. ft. such lot exceeds 12,000 sq. ft. in area. Chimneys and Flues. Chimneys or flues may be erected within a rear yard provided they do not exceed five square feet in arc.i in the aggregate and do not obstruct ventilation. Fire Escapes. Open or lattice enclosed iron fire escapes may pro- ZONING IN CANADA AND THE UNITED STATES 337 ject not more than eight feet and fire-proof outside stairways or solid- floored balconies to fire towers may project not more than four feet into a rear yard. Cut-Offs. A corner of a yard or court may be cut off between walls of the same building provided that the length of the wall of such cut-off does not exceed five feet. Extension to Yards or Courts. Windows opening on a portion of a yard or court which is an extension to a yard or court conforming to the minimum requirements of a yard or court shall be deemed to comply with the provisions of this article. Such extension on which windows open shall not be deeper in any part than it is wide on the open side nor shall such open side be less than six feet wide. The area contained in an extension to a yard or court shall in no case be included in computing the required area of a yard or court. Projections Allowed. The area required in a yard or court at any given level shall be open from such level to the sky unobstructed, except for the ordinary projections of skylights and parapets above the bottom of such court or yard, and except for the ordinary pro- jections of window sills, belt courses, gutters, cornices and other orna- mental features to the extent of not more than six inches, provided that wider cornices on the street front may turn the corner and pro- ject their full width into a side yard or outer court within five feet of the street wall of the building. Bay Windows and Oriels. In a side yard not less than six feet wide an oriel or bay window not more than fifteen feet wide and without a gable may be constructed to extend not nearer than four and one-half feet from the side lot line. Article 5. General Provisions SEC. ' 26.7. District Boundaries, How Determined. The boun- daries between districts are, unless otherwise indicated, either the center lines of streets or imaginary lines drawn parallel to and one hundred and twenty feet back from one or more of the street lines bounding the less restricted side or sides of a block. Where uncer- tainty exists or the street layout actually on the ground varies from the street layout as shown on the use, height, or area district map, the district boundary line shall be determined and recorded by the inspector of buildings in accordance with the intent of this chapter. Division of Lots by Boundary Lines. Where a district boundary line divides a lot in a single ownership at the time of the passage of this chapter, the regulations for either portion of such lot may extend to the entire lot, but not more than twenty-five feet beyond the boun- dary line of the district for which such regulations are established. Effect of Widening a Street. Whenever a street other than a boulevard or parkway is so widened as to be within one hundred and 338 THE LAW OF CITY PLANNING AND ZONING twenty feet of a boundary line of a more restricted district, the less restricted district shall thereupon extend one hundred and twenty feet back from the widened street and such change in the district boundary lines shall have the same force and effect as though sepa- rately ordained. SEC. 26.71. Effect of This Chapter Upon Contracts and Agree- ments and Upon Other Laws and Regulations. In their interpreta- tion and application the provisions of this chapter shall be held to be the minimum requirements adopted for the promotion of the public safety, health, convenience and general welfare. It is not intended by this chapter to interfere with or abrogate or annul any easements, covenants or other agreements between parties; nor is it intended by this chapter to repeal, abrogate, annul or in any way to impair or interfere with any existing provision of law or ordinance or any rules, regulations or permits previously adopted or issued or which shall be adopted or issued pursuant to law relating to the use of buildings or premises; provided, however, that where this chapter imposes a greater restriction upon the use of buildings or premises or upon the height of buildings or requires larger yards, courts or other open spaces than are imposed or required by such existing provision of law or ordinance or by such rules, regulations or per- mits, the provisions of this chapter shall control. SEC. 26.72. Enforcement by Building Inspector; Issuance of Building Permits. This chapter shall be enforced by the inspector of buildings. He shall issue no permit for the construction or alteration of any building or structure or part thereof plans and specifications and intended use for which are not in all respects in conformity with the provisions of this chapter. In case the intended use owing to its nature or the vagueness of its statement falls within more than one of the classes of uses established by Article 2 of this chapter such building or structure shall not be permitted in any district in which any such classes are prohibited. SEC. 26.73. Certificates of Occupancy. It shall be unlawful to use or permit the use of any building or premises or part thereof hereafter created, erected, altered, changed or converted wholly or partly in its use or structure until a certificate of occupancy to the effect that the building or premises or the part thereof so created, erected, altered, changed or converted and the proposed use thereof conform to the provisions of this chapter shall have been issued by the inspector of buildings. It shall be the duty of the inspector of buildings to issue a certificate of occupancy within ten days after a request for the same is filed in his office by any owner of a building or premises affected by this chapter, provided said buildii premises, or the part thereof so created, erected, altered, changed or converted, and the proposed use thereof, conforms with all the re- quirements of Article 4 of this chapter. ZONING IN CANADA AND THE UNITED STATES 339 Fees for Certificates of Occupancy. There shall be charged for each certificate of occupancy for a single family dwelling and uses accessory thereto a fee of one dollar, and for all other uses a fee of two dollars. Such fees shall be paid into the city treasury and credited to the general city fund. Temporary Certificates of Occupancy. Pending the issuance of a regular certificate, a temporary certificate may be issued for period not exceeding six months, during the completion of alterations or during partial occupancy of a building pending its completion. Such temporary certificates shall not be issued except under such restric- tions and provisions as will adequately insure the safety of the occu- pants. No temporary certificate shall be issued if, prior to its com- pletion, the building fails to conform to the provisions of the build- ing ordinance or of this chapter to such a degree as to render it unsafe for the occupancy proposed. Changes Requiring Issuance of New Certificate of Occupancy. If the conditions of use or occupancy of any building or premises or part thereof are substantially changed, or so changed as not to be in conformity with the conditions required by a certificate issued there- for, or if the dimensions or area of the lot upon which a building is located or its yards or courts are reduced, said certificate shall be void and the owner shall notify the inspector who shall order an inspection of the building premises or lot. If the building conforms to all the requirements of this chapter and of Chapter IV a new cer- tificate shall be issued as herein provided. Procedure in Case of Non-conformity. If, on any inspection, the conditions of a building or premises or its use or occupancy are found not to conform to the requirements of this chapter or of Chapter IV or the conditions of an existing certificate therefor, the inspector shall at once issue written notice to the owner, specifying the manner in which the building or premises or its use or occupancy fails to so conform, and the owner shall at once take steps to make it so con- form, as directed by the inspector; and if it is necessary for the proper protection of the occupants he shall order the use or the occu- pancy of the building or premises modified or the building or premises vacated until its condition is made satisfactory in conformity with the requirements of this chapter and of Chapter IV, at which time a certificate shall be issued as herein provided. SEC. 26.74. Amendments and Changes in the Districts and Regu- lations Therefor by the Common Council. The Common Council may from time to time on its own motion or on petition, after public notice and hearing as provided by law and after report by the Board of Public Land Commissioners, alter, supplement or change the boun- daries or regulations herein or subsequently established. Whenever the owners of fifty per cent or more of the frontage in any district or part thereof present a petition duly signed and acknowledged to 340 THE LAW OF CITY PLANNING AND ZONING the Council requesting an amendment, supplement or change in the regulations prescribed for such district or part thereof, it shall be the duty of the Council to vote upon said petition within ninety days after the filing of the same by the petitioners with the city clerk. In case a protest against a proposed amendment, supplement or change be presented, duly signed and acknowledged by the owners of twenty per cent or more of any frontage proposed to be altered, or by the owners of twenty per cent of the frontage immediately in the rear thereof, or by the owners of twenty per cent of the frontage directly opposite the frontage proposed to be altered, such amendment shall not be passed except by a three-fourths vote of the Council. If any area is hereafter transferred to another district by a change in dis- trict boundaries by an amendment, as above provided, the provisions of this ordinance in regard to buildings or premises existing at the time of the passage of this chapter shall apply to buildings or prem- ises existing at the time of passage of such amendment in such trans- ferred area. SEC. 26.75. Completion and Restoration of Existing Buildings. Nothing herein contained shall require any change in the plans, con- struction or intended use of a building for which a building permit has been heretofore issued and the construction of which shall have been diligently prosecuted within six months of the date of such per- mit, and the ground story framework of which, including the second tier of beams, shall have been completed within six months, and which entire building shall be completed according to such plans as filed within two years from the date of the passage of this chapter. Noth- ing in this chapter shall prevent the restoration of a wall declared unsafe by the inspector of buildings. SEC. 26.76. Penalties. Any person, firm, company or corporation owning, controlling or managing any building or premises wherein or whereon there shall be placed or there exists anything in violation of any of the sections of this chapter; or any person, firm, company or corporation who shall assist in the commission of any violation of these sections; or who shall build contrary to the plans or specifica- tions submitted to and approved by the building inspector; or any person, firm, company or corporation who shall omit, neglect or refuse to do any act required in said sections shall, except where a special penalty is provided, be subject to a fine of not less than ten dollars nor more than two hundred dollars, together with the costs of the action, and in default of payment thereof, to imprisonment in the house of correction for a period of not less than one day nor more than six months, or until such fine and costs shall be paid; and every such person, firm, company or corporation shall he deemed guilty of a separate offense for each day such violation, disobedience, omission, neglect or refusal shall continue; provided, however, that ZONING IN CANADA AND THE UNITED STATES 341 said accumulated penalties recoverable in any one action shall not exceed the sum of two thousand dollars. SEC. 26.77. Validity of Ordinance. If any article, section, para- graph, subdivision, clause or provision of this chapter shall be ad- judged invalid, such adjudication shall apply only to the article, section, paragraph, subdivision, clause or provision so adjudged, and the rest of this chapter shall remain valid and effective. SEC. 2. This ordinance shall take effect and be in force from and after its passage and publication. No. 8. THE ALAMEDA, CALIFORNIA, ORDINANCE" Ordinance Establishing Districts or Zones and Regulating Therein the Use of Property, Height of Buildings, and Required Open Spaces for Light and Ventilation of Such Buildings WHEREAS, the public interest, health, comfort, convenience, pres- ervation of the public peace, safety, morals, order and the public wel- fare of the City of Alameda require the classification of the city into districts within some of which it shall be lawful and in others unlawful to erect, construct, alter, or maintain certain buildings or uses of property or to carry on certain trades or callings or within which the height and bulk of future buildings shall be limited. Now, therefore, be it ordained by the Council of the City of Alameda as follows: ARTICLE I USE DISTRICTS SEC. I. Use Districts. For the purpose of regulating and restrict- ing the location of trades and industries, businesses and residences and buildings designed for specified uses, the City of Alameda is hereby divided into the following classes of Residence, Business and Industrial Use Districts: RESIDENCE DISTRICTS OF Class I Single family dwellings. Class II Dwellings, flats, clubs, railroad shelter stations, apart- ment houses, hotels without stores. BUSINESS AND PUBLIC USE DISTRICTS OF Class III Retail businesses, trades and professions, including residences of Classes I and //. 48 No. 144, N. S., adopted Feb. 18, 1919 ; here given as amended by No. 149, N. S., May 28, 1919. 342 Class IV Schools, public and semi-public buildings, churches, playgrounds, green-houses and parks, including residences of Class I. Class V Public garage, dyeing and cleaning, wholesale business, bath houses, amusement parks, oil stations and feed business, includ- ing residence and business uses of Classes I, II, III and IV. Class VI Hospitals, sanitariums, charitable institutions, includ- ing residences of Classes I and //. INDUSTRIAL DISTRICTS OF Class VII Factories not obnoxious, warehouses, including any business use, but excluding new residences of any kind. Class VIII Obnoxious and odor producing factories, including any business use, but excluding new residences of any kind. As herein defined and limited and as shown on the map entitled "Diagram of Use Districts, Building Zone Map of the City of Ala- meda, February 4, 1919," filed in the office of the City Clerk of the City of Alameda, February 4, 1919, which is hereby declared to be part hereof. The Use Districts designated herein and on said map are hereby established. No building or premises shall be erected or used for any purpose other than a purpose permitted in the Use Dis- trict of the class in which such premises, building or property is located. SEC. 2. Residence Districts of Class I : In residence districts of Class I no building, structure or premises shall be erected, con- structed, altered or maintained, except as provided in section 12 hereof, which shall be used for or designed or intended to be used for any purpose other than that of a single family dwelling. The following described residence districts of Class I are hereby established : All of the City of Alameda except the districts established and included in Residence Districts of Class II or in Business or Indus- trial Use Districts as hereinafter described and shown on the afore- said map. SEC. 3. Residence Districts of Class II: In residence districts of Class II no building structure or premises shall be erected, con- structed, altered or maintained, except as provided in section 12 hereof, and which shall be designed, intended or used for any pur- pose other than a single family dwelling, flat, group dwelling, board- ing house or lodging house, club, fraternity dwelling, apartment or hotel without stores. SEC. 4. Business and Public Use Districts of Class III Retail Business and Offices: (a) In business and public use districts of Class III, no build- ing, structure or premises shall be erected, constructed or maintained, except as provided in section 12 hereof which shall be designed, in- tended or used for any purpose other than those specified in Resi- dence Districts of Classes I and // hereof and those of a business or professional office, retail trade, theatre or store, with the exceptions made in paragraph (6) of this section. (&) In a Business and Public' Use District of Class III no build- ing or premises shall be used and no building shall be erected which is arranged, intended or designed to be used for any of the following specified trades, industries or uses, except as provided in section 12 hereof: [The list of uses is omitted. For a list of uses, see p. 308.] (c) In any Business or Public Use District no building or prem- ises shall be used, and no building shall be erected, which is arranged, intended or designed to be used for any trade, industry or use that is noxious or offensive by reason of the emission of odor, dust, smoke, gas or noise. (d) In any Business or Public Use District no building or prem- ises shall be used, and no building shall be erected, which is arranged, intended or designed to be used for any kind of manufacturing, except that any kind of manufacturing or wholesale business not in- cluded within the prohibitions of paragraph (a) and (&) of this section may be carried on, provided not more than 25 per cent of the ground floor space nor of the total floor space of the building is so used. The printing of a newspaper shall not be deemed manu- facturing. SEC. 5. Business and Public Use Districts of Class IV. In Busi- ness and Public Use Districts of Class IV, no building, structure or premises shall be erected, constructed, altered or maintained, except as provided in section 12 hereof which shall be designed, intended or used for any purpose other than that of an Assembly Hall, church, public or private school, playground structure, park structure, public art gallery, museum, library, fire house or convenience station, or other public or semi-public building, or residence use specified in Class I. SEC. 6. Change of Classification: When an established Busi- ness and Public Use District of Class IV adjoins and touches the boundaries of a Residence District of Classes I or // on three of its sides, or is completely surrounded by the same, upon the change of use of said district or of any portion thereof to a use specified for Residence Districts of Classes I or //, said property shall thereafter be classified as a Residence District of Class I or of Class II re- spectively. SEC. 7. Business and Public Use Districts of Class V : Garages, Etc. In Business and Public Use Districts of Class V no building, structure, or premises shall be erected, constructed, altered or main- tained, except as provided in section 12 hereof, which shall be desig- nated, intended or used for any purpose other than those permitted 344 THE LAW OF CITY PLANNING AND ZONING in a Residence District of Classes I and // and in Business and Public Use Districts of Classes III and IV hereof, and that of a bath house, commercial recreation park, undertaking parlor, public garage, gaso- line or oil supply station, feed, fuel or construction material busi- ness, dyeing and dry cleaning establishment or wholesale business. SEC. 8. Business and Public Use Districts of Class VI Hos- pitals and Institutions. In Business and Public Use Districts of Class VI no building, structure or premises shall be erected, con- structed, altered or maintained, except as provided in section 12 hereof, which shall be designed, intended or used for any purpose other than that of a public or private hospital, sanitarium, asylum or institute for the treatment of disease, clinic, day nursery or other charitable institution or Residence Use specified in Classes I or //. SEC. 9. Industrial Districts of Class VII Ordinary Factories and Warehouses. (a) In Industrial Districts of Class VII, no building, structure or premises shall be erected, constructed, altered or maintained, ex- cept as provided in section 12 hereof which shall be designed, intended or used for any purpose other than that of a retail or wholesale busi- ness such as specified in Business and Public Use Districts of Classes II, III. IV, V and VI, and that of the following specified trades, in- dustries or uses : Blacksmithing or horseshoeing, Bottle or glass factory, Brew- ing or distilling of liquors, Brick yard or kiln, Carpet cleaning or carpet beating, Coal yard or coal or fuel storage, dry dock or other dock or wharf, Electric Central station power plant, Food Product, cereal and similar factories, Fruit packing and curing, Hay barn or warehouse, Junk, scrap paper or rag storage or baling, Livery stable, Feed yard, Veterinary hospital or riding academy, Lumber yard, Ma- chine shop, Mattress or bed-spring factory, Milk Bottling and Dis- tributing Station. Nursery or greenhouse, Oil cloth and linoleum manufacture, Paint, oil, varnish or turpentine manufacturing, Planing Mill or Sash and door, box or woodwork factory, Printing ink manu- facture, Railroad freight yard, team track freight Depot or shed, Roller mill, Rubber manufacture from crude material, Sheet Metal Works, Ship building plant or ship yard, Silk, cotton or other mill using power, Shoddy manufacture or wool scouring, Stable for more than one horse, Starch, glucose or dextrine factory, Stone or monu- mental works, Rock, sand gravel, loading, distributing or receiving station, Sugar refining, Tar distillation or manufacture, Tar roofing or tar waterproofing manufacture, Wood yard. (&) It shall be unlawful for any person, firm or corporation to erect, establish, carry on or maintain, except as provided in section 12 hereof, within an Industrial District of Class VII as described in paragraph (a) of this section, any industry engaged in making or preparing soap, candles, glue, tallow oil, chemicals, gunpowder or ZONING IN CANADA AND THE UNITED STATES 345 other explosives, bone boiling, fat boiling, tanning, dressing or pre- paring skins, hides or leather, or crematory. (c) In Industrial Districts of Class VII no buildings or prem- ises shall be designed, intended or used for any trade, industry, or use that is noxious or offensive by reason of the emission of odor, dust, smoke, gas or noise. SEC. 10. Industrial Districts of Class VIII Noxious Industries. In Industrial Districts of Class VIII, no building, structure or premises shall be erected, constructed or maintained, except as pro- vided in section 12 hereof, which shall be designed, intended or used for any purpose other than a Business or Industrial Use. SEC. ii. No New Dwellings Permitted in Industrial Districts. In any Industrial District of Class VII or of Class VIII no new building or structure shall be hereafter designed, erected, constructed or maintained, except as provided in section 12, hereof for dwelling, sleeping or human housing purposes, provided however that in con- nection with any industrial plant one single family dwelling quarters for one watchman employed in said plant may be built and used by him and his family. SEC. 12. Existing Building and Premises. (a) In any building or premises any lawful use existing therein at the time of the passage of this ordinance may be continued therein, although not conforming to the regulations of the use district in which it is maintained, provided that no structural alterations re- quiring a building permit shall be made therein and no new building or addition be erected, except in conformity with the requirements of this ordinance, or unless required by law. (&) No existing building designed, arranged, intended or de- voted to a use not permitted by this article in the Use District in which such use is located shall be enlarged, extended, reconstructed or structurally altered unless such use is changed to a use permitted in the Use District in which such building is located. SEC. 13. Reversion of Exceptions. (a) If at any time any building or premises now erected or main- tained, which by the terms of this ordinance, or of a later ordinance, or amendment thereto, is declared to be an exception to the Use Dis- trict, either completely or partially surrounding such exception, shall be changed from its present use to a different use or destroyed, or more than forty (40) per cent burned, moved or altered, then and without further action by the City Council, the said premises on which said building or structure was erected or maintained, shall from and after the time of such destruction, burning, removal or alteration be deemed to be classified without further notice as a district of the same class of use as the surrounding or adjoining district to which said premises formed originally an exception, and the same shall be subject to all the restrictions of such classification. 346 THE LAW OF CITY PLANNING AND ZONING (&) Doctors' Offices in Dwellings. Single family or other type of dwellings may lawfully include the office of a physician, surgeon, dentist, or one artist's or musician's studio without violating the pro- visions of any classification in any paragraph of this ordinance. (c) Private Garages and Other Outbuildings. Private garages and the customary outbuildings may be located or maintained as accessory to any building lawfully within the boundaries of any dis- trict herein specified. A private garage for more than five motor vehicles shall not be deemed accessory. ARTICLE II HEIGHT DISTRICTS SEC. 14. Height Districts. For the purpose of regulating and limiting the height and bulk of buildings hereafter erected the City of Alameda is hereby divided into the following classes of Height Districts: 2 l /2 Story Height Districts Limited to a maximum of two stories and attic, not to exceed a total height of 35 feet to finished ceiling line of the attic story above the curb. 5 Story Height Districts Three stories not to exceed 40 feet. 4 Story Height Districts Four stories not to exceed 50 fert. 8 Story Height Districts Eight stories not to exceed 90 feet, as hereinafter defined and limited and as shown on the map entitled "Diagram of Height Districts. Building Zone Map of the City of Alameda, February 4, 1919," filed in the office of the City Clerk of the City of Alameda, Feb. 4, 1919, and which is hereby declared to be part hereof. The Height Districts designated on said map are hereby established. No building or part of a building shall be erected, constructed, or altered, except in conformity with the regulations herein described for the Height District in which such building is located. SEC. 15. 2 1/2 Story Height Districts. In a 2 l / 2 Story Height District no building shall be erected hereafter to a height in i of two stories and a finished attic nor more than thirty-five (35) feet to the finished ceiling line of the second story, above the established curb grade of the street in front of the building, or adjoining ground level, except as provided in section 19 hereof. The following described 2 l / 2 Story Height Districts are hereby established : All of the City of Alameda not otherwise described or designated as in a 3 Story, 4 Story, or an 8 Story Height District, by sections 16, 17 and 18 hereof, as shown on said last mentioned map, provided, however, that an apartment house may be erected in this district to a height of three stories as prescribed in section 16. SEC. 16. 3 Story Hcujht Districts. In a 3 Story Height : ZONING IN CANADA AND THE UNITED STATES 347 trict no building shall be erected hereafter to a height in excess of three stories, nor more than forty (40) feet to the finished ceiling line of the third story above the established curb grade of the street in front of the building, or adjoining ground level, except as pro- vided in section 19 hereof. SEC. 17. 4 Story Height Districts. In a 4 Story Height District no building shall be erected hereafter to a height in excess of four stories nor more than fifty (50) feet to the finished ceiling line of the fourth story above the established curb grade of the street in front of the building, or adjoining ground level, except as provided in section 19 hereof. SEC. 18. 8 Story Height Districts. In an 8 Story Height Dis- trict no building shall be erected hereafter to a height in excess of eight stories, nor more than ninety (90) feet to the finished ceiling line of the eighth story above the established curb grade in front of the building, or adjoining ground level, except as provided in section 19 hereof. SEC. 19. Height District Exceptions. (a) No building shall hereafter be erected in any Height Dis- trict to a height in excess of four stories nor more than fifty (50) feet to the finished ceiling line of the fourth story above the estab- lished curb grade of the street in front of the building unless the width of said building on each and every abutting public street is at least one-half of its height. (&) Towers, chimneys, spires, gas or water tanks completely closed in with walls down to the ground or to the adjoining lower story of the building may be permitted as to a greater height than allowed in the class of Height District in which the building is lo- cated, provided that no such exception shall cover at any level more than fifteen (15) per cent in area of the lot. (c) Nothing in this article shall prevent the projection of a cornice beyond the street wall to an extent not exceeding five feet in any case. (d) No building shall hereafter be erected in any height district to a height in excess of the width of the street upon which it abuts, measured at right angles from the front property line to the opposite property line. SEC. 20. Area Requirements. For the purpose of regulating and determining the area of yards, courts and other open spaces for buildings hereafter erected, the following area requirements are hereby established. No building or part of a building shall be erected except in conformity with the area regulations herein prescribed for the Use District in which said building is located. Unless otherwise expressly provided the term rear yard, side yard, outer court or inner court when used in this article shall be deemed to refer only 34 THE LAW OF CITY PLANNING AND ZONING to a rear yard, side yard, outer court or inner court required by this article. No lot area shall be so reduced or diminished that the yards, courts, or open spaces shall be smaller than prescribed in this article. SEC. 21. In Industrial Use Districts of Class VII or of Class VIII, a court or a yard where required by section 26 of this ordinance shall be at least two inches in least dimension for each one foot of such height, with a depth of not less than five (5) feet. SEC. 22. In Business and Public Use Districts of Classes III, IV, V and VI, and in each business, store or office building in In- dustrial Districts of Classes VII and VIII a court or a yard, where required by section 26 of this ordinance, of each building hereafter constructed, of whatever use, shall be of the same least dimensions and area as required for tenement houses in the "State Tenement House Act." SEC. 23. Behind every building hereafter erected in a Business or Public Use District of Classes III, IV, V or VI, outside the fire limits of the City of Alameda, there shall be a rear yard extending across the entire width of the building. Such yard shall be at every point open and unobstructed from the ground to the sky, except that in the case of corner lots the rear yard may begin at the top of the entrance story. Every part of such yard shall be directly accessible from every other part thereof. The depth of such yard shall be measured at right angles from the rear lot line to the extreme rear part of the building. Each outer court, inner court or side yard of each building hereafter erected outside the fire limits in said Busi- ness and Public Use Districts, shall be of the same least dimensions and area as required for tenement houses in the "State Tenement House Act," provided however that in the case of corner lots no rear yard shall be less than ten (10) feet in depth and in the case of interior lots no rear yard shall be less than twelve (12) feet in depth. SEC. 24. In Residence Use Districts of Classes I or II each court, side yard, or rear yard of each building, of whatever use, shall be of the same least dimensions and area as required for a dwelling in the "State Dwelling House Act." SEC. 25. Home Area Districts. For the purpose of regulating and limiting congestion in home neighborhoods for buildings here- after erected, Home Area Districts in the City of Alameda are hereby established, in which no building nor structure shall hereafter be erected, constructed or altered which is not detached at least four (4) feet from every other building or which covers more than fifty (50) per cent in area of the lot, as follows: All of that portion or those portions of the City of Alameda established as Residence Use Districts of Class I as described in section 2 of this ordinance and as shown on the map entitled "Diagram of Use Districts, etc." ZONING IN CANADA AND THE UNITED STATES 349 SEC. 26. Yards and Courts. If a room in which persons live, sleep, work or congregate receives its light and air in whole or in part directly from an open space on the same lot with the building, there shall be one inner court, outer court, side yard or rear yard from which a window or ventilating skylight opens from such room. Such inner court, outer court or side yard shall be at least of the area and dimensions herein prescribed for a court in such district. The unoccupied space within the lot in front of every part of such window shall be not less than 3 feet, measured at right angles thereto. Courts, yards and other open spaces if provided in addition to those required by this section, need not be of the area and dimensions herein prescribed. The provisions of this section shall not be deemed to apply to courts or shafts for bathrooms, toilet compartments, hall- ways or stairways. SEC. 27. If a building is erected on the same lot with another building the several buildings shall, for the purpose of this article, be considered as a single building. Any structure, whether inde- pendent of or attached to a building, shall for the purpose of this article be deemed a building or a part of a building. ARTICLE IV DEFINITIONS SEC. 28. Definitions. Certain words in this ordinance are de- nned for the purposes hereof as follows: (a) Words used in the present tense include the future; the singular number includes the plural and the plural the singular; the word "lot" includes the word "plot," the word "building" includes the word "structures." (&) The "width of the street" is the mean of the distances be- tween the sides thereof within a block. Where a street borders a public place or public park the width of the street is the mean width of such street plus the width, measured at right angles to the street line, of such public place or public park. (c) The "curb level" for the purpose of measuring the height of any portion of a building, is the mean level of the curb in front of such portion of the building. But where a building is on a corner lot the curb level is the mean level of the curb on the street of greatest width. If such greatest width occurs on more than one street the curb level is the mean level of the curb on that street of greatest width which has the highest curb elevation. The "curb level" for the purpose of regulating and determining the area of yards, courts, and open spaces is the mean level of the curb at that front of the building where there is the highest curb elevation. Where no curb elevation has been established or the building does not adjoin the street the average ground level of the lot shall be considered the curb level. 350 THE LAW OF CITY PLANNING AND ZONING (d) A "street wall" of a building, at any level, is the wall or part of the building nearest to the street line. (e) The "height" of a building is the vertical distance measured from the curb level to the finished ceiling line of the highest story of the building. Where a building is a tenement house, hotel or boarding house or dwelling as respectively defined in the State Tene- ment House Law, State Hotel and Lodging House Law or State Dwelling House Law, the height of the building on the street line shall be measured as prescribed in said law for the measurement of the height of a tenement house hotel, lodging house and dwelling house, and such measurement shall be from the curb level as that term is used in said law. (/) The "depth of a lot" is the mean distance from the street line of the lot to its rear line measured in the general direction of the side lines of the lot. (fir) A "rear yard" is an open, unoccupied space on the same lot with a building between the rear line of the building and the rear line of the lot. (h) The "depth of a rear yard" is the mean distance between the rear line of the building and the rear line of the lot. () Lots or portions of lots shall be deemed "back to back" when they are on opposite sides of the same part of a rear line common to both and the opposite street lines on which the lots front are parallel with each other or make an angle with each other of not over 45 degrees. (/) A "court" is an open unoccupied space, other than a rear yard, on the same lot with a building. A court not extending to the street or to a rear yard is an "inner court." A court extending to the street or to a rear yard is an "outer court." A court on the lot line extending through from the street to a rear yard or another street is a "side yard." (k) The "height of a yard or a court" at any given level shall be measured from the lowest level of such yard or court as actually constructed or from the curb level, if higher, to such level. The highest level of any given wall bounding a court or yard shall be deemed to be the mean height of such wall. Where a building is a tenement house, as defined in the State Tenement House Law, the height of a yard or a court shall be measured as prescribed in such law. (/) The "least dimension" of a yard or court at any level is the least of the horizontal dimensions of such yard or court at such level. If two opposite sides of a yard or court are not parallel the hori- zontal dimension between them shall be deemed to be the mean dis- tance between them. (m) The "length of an outer court" at any given point shall be measured in the general direction of the side lines of such court ZONING IN CANADA AND THE UNITED STATES 351 from the end opposite the end opening on a street, or a rear yard, to such point. (n) Dwelling. A dwelling is any house or building or portion thereof which is occupied in whole or in part as the home, residence or sleeping places, either permanent or transient of one or more human beings. (0) Types of Dwellings. For the purpose of this ordinance the types of dwellings are denned as follows: Single family dwellings Two family dwellings Group dwellings Apartments or tenements. (/>) A Single Family Dwelling is a dwelling for one family alone, having but one kitchen and within which not more than five persons may be lodged for hire at one time. (q) A Two Family Dwelling is a building or structure having under one and the same roof two single family dwellings, each dwell- ing of which shall have a separate ground floor entrance on the out- side of the building. (r~) A Group Dwelling is a building designed for more than one single family dwelling, each dwelling of which shall have a ground floor entrance on the outside of the building and be entirely sepa- rated from each other private dwelling by a vertical wall. (s) An Apartment is a tenement as defined under the State Tene- ment House Law. (f) A Boarding House is a building in which more than five per- sons are lodged for hire and in which there are not more than twenty- five sleeping rooms. (u) Story. The term "Story" means a vertical distance from floor to ceiling. (v} An Attic is a story under a sloping roof at the top of the building, the spring or cornice of the main roof of which is not more than two (2) feet above the floor of said attic. An attic story shall not use more than eighty (80%) per cent of the floor area of said attic story for rooms, baths or toilets. Walls of rooms and baths shall be not less than four (4) feet in height. The attic may be used only as permitted in the Alameda Housing Code. (w) A Detached Building is one that is not less than six (6) feet distant, measured horizontally from any portion, except the cornice or eaves, of any other building. (;r) A Public Laundry is any building or grounds used for laun- dering for hire in which more than two persons are engaged in the business thereof., All words and phrases not otherwise defined in this ordinance shall be interpreted as defined in the State Tenement Housing Act and the Alameda Housing Code. 352 THE LAW OF CITY PLANNING AND ZONING ARTICLE V GENERAL AND ADMINISTRATIVE SEC. 29. Interpretation: Purpose. In interpreting and applying the provisions of this ordinance, they shall be held to be the minimum requirements adopted for the promotion of the public health, safety, comfort, convenience and general welfare. It is not intended by this ordinance to repeal or interfere with any existing provision of law or ordinance or any rules, regulations or permits previously adopted or issued or which may be adopted or issued pursuant to law relating to the use of buildings or premises; nor is it intended by this ordi- nance to interfere with any easements, covenants, or other agree- ments between parties; provided, however, that where this ordinance imposes a greater restriction upon the use of buildings or premises or upon height of buildings or requires larger yards, courts or other open spaces than are imposed or required by such existing provisions of law or ordinances or by such rules, regulations or permits or by such easements, covenants or agreements, then, and in that case, the provisions of this ordinance shall control. SEC. 30. Unlawful Use: Certificates of Occupancy. It shall be unlawful to use or permit the use of any building or premises or part thereof hereafter created, erected, changed or converted wholly or partly in its use or structure until a certificate of occupancy to the effect that the building or premises or the part thereof so created, erected, changed or converted and the proposed use thereof conform to the provisions of this ordinance shall have been issued by the building department. In the case of such premises or buildings it shall be the duty of the building department to issue a certificate of occupancy within ten days after a request for the same shall be filed in its office by any owner of a building or premises affected by this ordinance, provided said building or premises or the part thereof so created, erected, changed or converted, and the proposed use thereof, conforms with all the requirements herein set forth. A temporary certificate of occupancy for a part of a building may be issued by the building department. Upon written request of the owner the building department shall is^ue a certificate of occupancy for any building or premises existing at the time of the passage of this ordi- nance certifying after inspection the use of the building or premises and whether such use conforms to the provisions of this ordinance. SEC. 31. Enforcement, Legal Procedure, Penalties. This ordi- nance shall be enforced by the Building Department, health inspec- tor, health officer, city engineer, chief of police, fire marshal, or such other officer as may be designated by the City Charter or by ordinance of the City of Alameda. Any person, firm or corporation violating any of the provisions of this ordinance shall be guilty of a misde- meanor and upon conviction thereof shall be punishable by a fine of not more than three hundred ($300.00) dollars, or by imprisonment ZONING IN CANADA AND THE UNITED STATES 353 in the city jail for a period of not more than six (6) months or by both fine and imprisonment. Each such person, firm or corporation shall be deemed guilty of a separate offence for each and every day during any portion of which any violation of any provision of this ordinance is committed, continued or permitted by such person, firm or corporation and shall be punishable accordingly. SEC. 32. Building Permits. No building permit shall be issued by the Building Department of the City for the erection or alteration of any building or structure contrary to the provisions of this ordi- nance. Each application for a building permit hereafter filed with the City shall be accompanied by a statement as to the use, height and area of the building applied for, on a blank to be furnished by the City, on which shall also be shown an accurate block plan of the location of the building on the lot, drawn to a scale of 16 feet to the inch. SEC. 33. Changes Within Districts. (a) Changes and Reclassification within Residence Districts: Any portion of a residence district may be changed from Class I to Class II, or vice versa, in the manner following : A petition therefor, describing the change desired and signed by the owners of not less than twenty-five (25) per cent of the area of real property situated within a radius of two hundred (200) yards of the particular portion proposed to be changed, must be filed with the City Clerk. The petition may be accompanied by the plans or a sketch of such build- ing or structure, if any, which is proposed to be erected in the place desired to be redistricted. Immediately upon receipt of such a petition, the City Clerk shall cause to be posted along that portion of all the main streets within the radius aforementioned, and at least one (i) on each side of each block or fraction of block therein, notices of the filing of said peti- tion; said notices shall be headed "Notices of Redistricting" in one (i) inch type or larger, briefly describing the change desired and notifying all persons having objections to appear before the next meeting of the City Council, giving date of same, and show cause why such proposed change should not be made; provided, that at least three (3) of said notices shall be posted on the side of the block in which the change is proposed, and three (3) on the side of the block opposite thereto ; provided further, all of said notices shall be posted at least seven days before the time of said hearing. At any time prior to said hearing any owner of real property situated within the radius aforesaid, may make written protests or objections to the proposed change, and deliver them to the City Clerk. At the time fixed, the City Council shall proceed to hear and pass upon the protests or objections so made, and its decision shall be final and conclusive; provided, however, the Council may adjourn 354 THE LAW OF CITY PLANNING AND ZONING such hearings from time to time and may refer the matter to the City Planning Commission, Chamber of Commerce, Merchants Association, or other civic or improvement organizations, for an opinion and re- port on the proposed change, before rendering its decision. Each petition or protest aforementioned shall have an affidavit annexed, certifying that each signature thereon is the bona-fide signa- ture of the person whose name it purports to be. Such affidavit may be made and subscribed before the City Clerk or a Notary Public. (&) Reclassification Within Business Districts Any portion of a Business or Public Use District may be changed and reclassified within such district, by petition, notice and hearing in the same man- ner as provided for changes and reclassification within Residence Districts. (c) Reclassification Within Industrial Districts Any portion of an Industrial District may be changed and reclassified within such district, by petition, notice and hearing in the same manner as pro- vided for changes and reclassification within Residence Districts; provided, however, the decision of the Council in such case shall be expressed by ordinance, which ordinance shall be subject to the referendum. SEC. 34. Changing from One Kind of District to Another. (a) Any portion of a Residence District, Business District, or Industrial District may be changed and transferred from one to the other of said districts of any classification thereof by petition, notice and hearing in the same form and manner as provided for changes and reclassification within Residence Districts; provided, however, the decision of the Council shall be expressed by ordinance, which ordinance shall be subject to the referendum. (6) Changes in Height Districts. Any portion of a Height District may be changed and reclassified by petition, notice and hearing in the same form and manner as pro- vided for changes and reclassification within Residence Districts; provided, however, the decision of the Council shall be expressed by ordinance, which ordinance shall be subject to the referendum. (c) Districts defined. For the purposes of changing and redis- tricting any portion of a Use or Height District, as herein provided, every portion of such district which lies separate and apart from other portions thereof shall be treated as a separate district. (d) Further amendments or changes. Any other amendments, alterations or changes in Use or Height districts, not herein provided for, shall be made by ordinance. SEC. 35. Official Map for Use and Height Districts. The City Clerk shall keep on file in his office an official map of the Use and Height Districts herein provided for, showing the char- acter, extent and area of each respective district. In every where the dividing line of a district or portion of a district is within ZONING IN CANADA AND THE UNITED STATES 355 the lines of any city block, he shall indicate by figures on said official map the exact location of such district lines. He shall also indicate all alterations, amendments or changes hereafter made in any of said districts or district lines by showing thereon the new lines in a dif- ferent color from the lines in which said map was originally drawn or printed, together with a proper explanatory legend giving the date of each such change and amendment. Said map shall be certified by him as being the original Zone Map of the City of Alameda. SEC. 36. Completion and Restoration, of Existing Buildings. (a) Nothing herein contained shall require any change in the plans, construction or designated use of a building for which a build- ing permit has been heretofore issued, or for which a permit has been applied and plans for which are on file with the building de- partment at the time of the passage of this ordinance, and a permit for the erection of which is issued after the passage of this ordi- nance, and the construction of which in either case shall have been diligently prosecuted within six months of the date of such permit, and the ground story framework of which, including the second tier of beams, shall have been completed within said six months, and which entire building shall be completed according to such plans as filed within two years of the date of the passage of this ordinance. (&) Nothing in this ordinance shall prevent the restoration of a building less than forty (40) per cent destroyed by fire, explosion, act of God or act of the public enemy or prevent the continuance of the use of such building or part thereof as such use existed at the time of such destruction of such building or part thereof. Noth- ing in this ordinance shall prevent the restoration of a wall declared unsafe by the superintendent of buildings or by a board of survey. SEC. 37. Individual Enactment of Sections. It is hereby de- clared to be the intention of the City Council to enact each and every section, paragraph, clause or phrase of this ordinance irrespective of the enactment of every other section, paragraph, clause or phrase herein contained. SEC. 38. Repeal of Certain Other Ordinances. Ordinance No. 125, N. S. entitled "An Ordinance establishing a Residence District and also an Industrial Zone in the City of Alameda and providing regulations for both" is hereby repealed, to take effect thirty (30) days after the final passage of this ordinance. SEC. 39. When Effective. This ordinance shall take effect thirty (30) days after its final passage. SEC. 40. Printing for Distribution. The City Clerk shall cause one thousand copies of this ordinance to be printed for distribution. PART V CITY PLANNING FINANCE Importance of Financial Considerations. One of the essential parts of the planning of the public features of a city is the devising of methods of financing their construction. The problem of raising sufficient money to build the public works necessary to the prosperity and well-being of the modern city is a difficult one and this difficulty is constantly increasing. In the earlier period of our municipal history, the authorities were expected to do little more than keep the peace, leaving it to the citizens themselves to obtain most of the facilities of city life. Nowadays these facilities have greatly increased in number and cost, and the citizen looks more and more to the city authorities to furnish them. In comparatively recent times the city dweller obtained daylight, air, and outdoor recreation from his own land or that of his neighbors ; now he demands boulevards, parks, playgrounds and recreation fields supplied by the city. Formerly, to go to and from his business, he was satisfied with the leisurely horse car line, built and managed at comparatively small expense by private enterprise; he obtained water from his own well or a private company, and at night burned a kero- sene lamp ; now he demands a subway express, electricity, pub- lic water in superabundance, and the countless necessities and luxuries that have come to be considered public utilities; and if private enterprise does not supply these needs at a minimum price, he clamors for, and obtains the use of, public money for the purpose. These changed conditions have greatly increased the amount of money that the modern city must raise from its citizens, and made the distribution of the heavy burden a mat- ter of grave concern. Sources of Municipal Revenue. There are three main sources from which the modern city obtains its revenue: 357 358 THE LAW OF CITY PLANNING AND ZONING municipal property and enterprises, subventions from the cen- tral government and general taxation. In addition, special or local benefit assessments are levied, the proceeds to be used only in improving the property assessed. Taxation, everywhere, is the principal source of general revenue. In Europe, especially in Germany, municipal property and undertakings yield a much greater proportion of the whole than with us, and subventions, so rare here, are common. Local or benefit assessment is resorted to more in this country than abroad. Municipal taxa- tion in Germany is levied principally on incomes from all sources, and in England, until recently, local taxes on real estate were assessed exclusively on its rental values; so that unused land, in these countries, was not taxed. There is now in Ger- many and there was in England for a few years * a small special tax on unused realty. In this country the common form of local taxation, the proceeds of which are available for any municipal purpose, is the general property tax, levied at the same rate on all property real and personal, but in practice per- sonal property, so easily concealed in most of its forms, escapes taxation to a considerable extent, so that, with us, perhaps 75 per cent of municipal taxation falls upon real estate. In some jurisdictions by law, and in others in practice, unused land, and land used for agriculture, within city limits, is taxed at a much lower rate than other realty in the city. The incidence of taxation affects the relative values of property, the uses to which it can be put with profit, and, in this way, the city plan. Thus, for instance, if unused realty or real estate used for agri- culture is not taxed, or is assessed at a much lower rate than other land, it will more often be held for a speculative advance. General Taxation. The constitutions or laws of many of the states in this country require that, in levying the general property tax, a uniform rate shall be fixed for all sorts of prop- erty. The determination of the rate from year to year is usu- ally left to the city authorities. In this country, in order to guard against too heavy taxation, the constitution or law of the 1 "Undeveloped Land Duty." This, and an "Increment Value Duty" were both imposed under the "Finance (1909-10) Act, 1910" (10 Edw. 7, ch. 8). CITY PLANNING FINANCE 359 state or charter of the city usually fixes the maximum amount, or the maximum rate, of the tax ; while in Europe the rate and amount of the various taxes, in so far as locally determined, is usually subject to readjustment by the state or national authori- ties. Some check upon the amount that a city can raise by taxation in a given period is generally regarded as necessary, but the fixing of the proper maximum is a difficult matter. An unduly high rate of taxation makes both living and business expenses excessive; but too low a rate, making it impossible for the city to furnish the streets, docks, public utilities and other necessities and aids to healthful and contented living, the prosperous conduct of private business and the normal growth of the city upon which business and therefore com- fortable living conditions are dependent, is equally unfortunate. The fixing of a maximum rate to be applied under all circum- stances to all the cities of a state is, as compared with the European method of regulation, a crude way of settling in- tricate questions; such a maximum, if too high, is of no effect, and if too low, is disastrous. We have not in this country developed the administrative machinery for the use of the European method, nor indeed have we come to believe that we should adopt it. If, under these circumstances, we impose a maximum, it should be a liberal one. The risk of the possible abuse of a necessary power is never a sufficient reason for limiting it to such an extent as to make its proper use impos- sible. Municipal Borrowing. It is not wise in all cases to adopt the policy of limiting the expenditures of the year to the amount that can safely be raised by taxation during that year. Such a policy would make it impossible to construct needed improve- ments and would often deprive the city and its citizens of neces- sary facilities and even result in financial loss. Where an im- provement is permanent or will remain useful for many years, the sum needed should be borrowed, to be repaid gradually. This is just; the future receives its share of the benefit and should pay its share of the cost. It is also expedient; the im- provement will, in well-being or financial gain, return year by year more than interest and amortization charges on its cost; 360 THE LAW OF CITY PLANNING AND ZONING the present cannot pay for all the permanent improvements that ought to be constructed, and will leave them unbuilt rather than shoulder the burden. The correct principle in improvements of this sort is that the indebtedness incurred shall be funded, but in every case provision, by sinking fund or otherwise, should be made for the payment of the loan during the period of the usefulness of the work. The Debt Limit. The risk of excessive borrowing is more insidious and therefore much greater than that of ex- cessive taxation. In Europe this danger is guarded against by state or national supervision and control of municipal loans. In this country, to attain this end, the state by constitutional provision or statute imposes a debt limit upon cities. In most cities in the United States there is a general limit, varying all the way from one and one-half to ten per cent, of the assessed valuation of real estate within the city; but, without regard to this limit, indebtedness may be contracted for many purposes, and there are easy methods of increasing the percentage. Prob- ably there are few cities where the total indebtedness may not exceed five per cent, of the assessed valuation, and many where it may materially exceed ten per cent. 2 In the effort to prevent extravagance and dishonesty, care must be taken that the debt limit, like the tax limit, is not fixed at too low a rate. In municipal as well as in private business an extensive plant and equipment are becoming more and more essential to economy and efficiency; and municipalities, like other corporations, can obtain the money for such uses only by borrowing for the purpose. The power to borrow ade- quately, like the power to impose adequate taxes, although undoubtedly subject to abuse, is essential to the conduct of the affairs of the modern city. The democratic remedy for the possible abuse of needful powers is not to abolish or unduly curtail them, but by active participation in government to secure their proper use. Faulty as it is, democracy is the best form of government we know, and local self government, with the necessary powers to make it effective, is essential to it. M'or a fuller statement on this point see "City Planning," edited by John Nolen, p. 391. CITY PLANNING FINANCE 361 Not all loans are obtained for the purpose of making durable improvements. In every city it is customary to borrow for the purpose of meeting certain current expenses that will later be taken care of in other ways. If this is not done, delays in con- struction are likely to occur, most expensive to the city and to land owners. This is especially true with relation to the laying out of streets, with their sewers and other accessories needed for building development. Without them houses cannot be erected on abutting land, the owners must carry it at a heavy expense instead of selling it at a profit, and the city must lose several years' taxes on improvements not yet built. The entire cost to the city of this construction may and should be a charge on the property improved, to be speedily repaid by the land owner. Certainly such a lien is a safe and ample security for such a loan. Not only should the city be allowed to borrow for such purposes, but the loans should be outside the debt limit. Self-Supporting Enterprises. Self-supporting public en- terprises should also be outside the debt limit. As soon as, for instance, a municipal street railway or gas plant is on such a basis as permanently to be able to pay interest on the cost and a reasonable sum toward amortization and renewals, the money thus employed should no longer be regarded as a debt but recog- nized as an investment, and the amount so employed deducted in calculating the indebtedness under the debt limit. 3 1 Such loans are as a rule outside the debt limit in Canada. See for instance R. S. Manitoba 1913, Municipal Institutions (ch. 133), part VTII, Local Improvements, sec. 561; Saskatchewan Stat., 1915, ch. 16; 1916, ch. 19. Indebtedness to acquire self-sustaining enterprises is also, to some extent, outside the debt limit of the city and county of .Philadelphia (Penn. Const., art. IX, sec. 8) and of Virginia cities (Va. Const., art. VIII, sec. 127). The city that perhaps has found such a law most useful is New York. The provision is in the constitution of the State and is as follows : Art. VIII, sec. 10: . . . "Any debt hereafter incurred by the City of New York for a public improvement owned or to be owned by the city, which yields to the city current net revenue, after making any necessary allowance for repairs and maintenance for which the city is liable, in excess of the interest on said debt and of the annual installments neces- sary for its amortization, may be excluded in ascertaining the power of said city to become otherwise indebted, provided that a sinking fund for its amortization shall have been established and maintained and that the indebtedness shall not be so excluded during any period of time when the revenue aforesaid shall not be sufficient to equal the said interest and amortization installments, and except further that any indebtedness here- 362 THE LAW OF CITY PLANNING AND ZONING Avoiding the Debt Limit. After the city has reached its debt limit, it may still make improvements or acquire prop- erty if only it does not enter into any obligation to pay for them. This it may accomplish by constituting these payments a charge on a special fund to be created or on special property to be acquired. Thus the city may construct a public work to be paid for solely by local assessments on private property bene- fited, the assessments usually being a lien on this property ; 4 or make extensions of a public utility, the cost to be paid solely out of net income; 5 or, if it can make whatever initial pay- ment may be required out of current income, it may accept property subject to a mortgage which it does not assume, 6 or acquire property to be paid for, if at all, in installments. 7 In the two latter cases, the city will lose the property if the mort- gage or the installments are not paid when due, but in no case is it under any obligation to meet them. In all these cases the city, by pledging its credit, could accomplish its purpose more cheaply; but if the improvement is needed at once it may be tofore incurred by the City of New York for any rapid transit or dock investment may be so excluded proportionately to the extent to which the current net revenue received by said city therefrom shall meet the interest and amortization installments thereof, provided that any increase in the debt incurring power of the City of New York which shall result from the exclusion of debts heretofore incurred shall be available only for the acquisition or construction of properties to be used for rapid transit or dock purposes. The legislature shall prescribe the method by which and the terms and conditions under which the amount of any debt to be so excluded shall be determined, and no such debt shall be excluded except in accordance with the determination so prescribed. The legislature may in its discretion confer appropriate jurisdiction on the appellate division of the Supreme Court in the first judicial department for the purpose of determining the amount of any debt to be so excluded. No indebtedness of a city valid at the time of its inception shall hereafter become invalid by reason of the operation of any of the provisions of this Section. . . ." The legislature did pass an act (Laws, 1910, ch. 276) so prescribing methods, and giving the Court referred to. jurisdiction. For a cas< struing this paragraph and law see In re Debt Limit, 123 N. Y. Supp. 860. v. Minnesota, 63 Minn. 125 (l Winston v. Spokane, 12 Wash. 524 (1895); Lexington v. Lafayette Bank. 105 Mo. 671 (1901); Evans v. Holman, 244 111. 596 (1910). Burnham v. Wilwaukee, 98 Wis. 128 (1897); contra, Browne v. Boston, 179 Mass. 321 (1901) ; Evans v. Holman. 244 Ills. 596 (1910). T Cases cited above; contra, Reynolds v. Waterville, 92 Maine, 202 (1898). See generally on this subject, Pond, Public Utilitifs, ch. VI (Bobbs- Merrill Co., Indianapolis, 1913). CITY PLANNING FINANCE 363 worth the added expenditure necessary to obtain it without delay. Special Assessments. 8 The planning and construction of streets and other public features are undoubtedly of advan- tage to the entire city. In many jurisdictions the cost of such features is met by a tax on the city as a whole. But the land in the neighborhood of an improvement, in addition to the general gain, often receives a special benefit by reason of this construction. This result of public works wisely planned and intelligently carried out is perhaps most evident in the case of land abutting on a newly built street. This land, in addition to the privileges in the street which it shares with all city land, receives special benefits from it, such as the right to light, air, access and view, which greatly and immediately raise its market value. The law and custom of all civilized countries respects these privileges ; our law recognizes them as property rights in the street appurtenant to and running with the abutting land of which the owner cannot be deprived without compensation. 9 It is becoming more and more the rule, the world over, to make a special assessment against this land to meet the cost of the street. The justice and expediency of this course is evident. General taxation is imposed upon all because it is for the bene- fit of all. To the extent that a new street or other improvement is of special advantage to neighboring property owners, it is unfair to assess its cost upon the property owners of the city as a whole; and it is only right and just that to this extent the neighboring land owners should pay for the gain they receive. Any other course would enrich them at the general expense. Care, however, should be taken not to levy a local tax in excess 'Also called local or benefit assessments. Such an assessment has been defined as "a compulsory contribution paid once for all to defray the cost of a special improvement to property undertaken in the public interest and repaid to the government in proportion to the special benefits accruing to the property named." (Quarterly Journal of Economics, April, 1893). There are many other sorts of assessment, such as the imposition on the owner of realty of the cost of cleaning the sidewalk of ice and snow, or of repairing the pavement in front of his land, or the levying on him of the price of water supplied, etc., etc. It is not, how- ever, any of these, but only special or benefit assessments that are here considered. * For a fuller statement of the law on this subject see p. 1/3. 364 THE LAW OF CITY PLANNING AND ZONING of the local gain. The improvement of a residential street for through travel might often prove to be a detriment to the abutter. The history of benefit assessment is a long one. In Europe the practice goes back at least to the feudal period, but it is only in comparatively recent times that it has begun to come into common use in European countries. Thus in England local statutes authorizing its use began to be passed about 1900 and now this procedure is authorized as a part of the general "Hous- ing, Town Planning, etc., Act" passed in 1909. In France local assessment to provide payment for various public works was authorized as a part of a general statute passed in 1807, but the procedure was so cumbrous that this method of financ- ing improvements has not been employed in France until very recently. 10 In Germany for many years there have been pro- visions for local assessments in the laws of the different states. In this country the practice, copied from the custom and law of London, was introduced in early colonial times, but the period of its active use did not begin until about 1813; and it is now the prevailing system here and in Canada. Limiting the Amount of Local Assessments. Local assessment is based upon the principle that the land owner should repay the special benefit he derives from a public work. 11 In some cities in this country only a certain proportion of the cost of a new street, or its cost only to the extent of a certain proportion of the special benefit it brings to abutters, is col- lected from them. This latter practice is contrary to the prin- ciple of local assessment. It is unjust that the abutter should pay more than the amount of his peculiar gain, but he should certainly pay tr> the extent of that gain or the other tax payers ** See the report accompanying the bill to amend the expropriation law of May 3, 1841, Chamber of Deputies, loth Legislature, extraordinary ion of 1911, No. 1369. " In some states it is held that the question whether such an assess- ment is in any particular case in excess of the special benefit, is for the : in otnen that the decision of the administrative authorities on that point cannot as a rule l>e so reviewed. See for a fuller ll in value. "If the increase in valuations adjoining these parks had been the same as in other property in the same taxing districts, and no more, it would have been $8,453,454, leaving an increase as a result of the parks of $16,- 668,700. The fortunate owners of this property have been enriched by this large sum beyond what they would have been had the parks not been established. "But this is not all. The cost of these four parks was $.1.24 The increase is enough to pay for them four times. The cost of all the park- in the county was $6,929,625.47 say $7,000,000. The increa property adjoining these four parks alone, beyond what it would have been if the parks had not been constructed, is sufficient to pay for all CITY PLANNING FINANCE 371 Additional facts and figures of this sort might be given indefinitely, but there can be no proof to a mathematical cer- tainty that new parks increase land values in their neighbor- hood, since other factors in these increases cannot be incontro- vertibly eliminated or exactly allowed for. Manifestly, how- ever, the judgment of common observation and common sense strengthens the conclusion that new parks, if wisely planned and located, are sufficient to add greatly to land value; and fortunately our courts do not demand any better evidence. Assessments for Public Improvements Generally. There is no reason why the practice of levying local assessments for local benefits should be confined to streets and parks. On the contrary, as has been well said, 18 "One principle should be invariably recognized, namely, where there is local benefit there should be local assessment. There can be no improvement which has been intelligently planned and executed which will not result in some local benefit, and it follows that there always should be some local assessment. No improvement, however small or however large, will be of equal benefit to the entire city, and to distribute the burden of paying for it over the whole city according to taxable values is unfair in that it is not placed accord- ing to benefit." 19 the parks in the county 2.4 times, and the increase from the other parks in the county, while not so great in proportion, is undoubtedly much more than their cost. The increased revenue to the county is already suffi- cient to pay the interest and sinking fund charges on the bonds issued for park construction. "So the county is the possessor of what is said to be the finest system of parks in the country, and they have paid for themselves and will remain an asset that will not only yield a dividend in taxes to the county, but one in health and pleasure -to the people that is beyond price." "Nelson P. Lewis, Chief Engineer of Board of Estimate and Appor- tionment, New York City, in Proceedings of Fourth National Conference on City Planning, p. 45. "An assessment may be levied for the benefit derived from several correlated improvements, and for the benefit obtained by the several elements of a scheme or plan of development or improvement. Thus an assessment on the property benefited may be made for a new or im- proved highway with sewers and building lines (Laws, New York, 1869, ch. 861 ; Lincoln v. St. Com'rs., 176 Mass. 210 (1900), or for the improve- ment of a district by the widening of certain highways, the narrowing of others, the establishment of building lines on some of them and the exclusion of certain trades and industries in others (Laws, New York 1868, ch. 631) or for the construction of a train station, and the construc- tion and change of streets so as to give access to it. (Sears v. St. Com'rs., 180 Mass. 274 (1902); Wells v. St. Com'rs., 187 Mass. 451 (1905)- See also, American Assoc. v. Commonwealth, 193 Mass. 470 (1907). 372 THE LAW OF CITY PLANNING AND ZONING Assessments for Transit Lines. An application of this principle, most useful, most just, and yet quite outside ordinary present practice in the United States, 20 is the assessment on those locally benefited of the cost of the construction of local transit lines. In this connection the article just quoted states : ' 21 "The City Club of New York several years ago showed that as a result of the building of the first Rapid Transit Subway in New York the actual land values in those portions of upper Manhattan and the Bronx which were most directly affected were within seven years increased $80,500,000 above the normal increase for that period. The cost of that part of the subway passing through the districts where this rise in values took place was about $13,000,000, while the cost of the entire subway from the Battery north was $43,000,000. It is quite evident that if the $13,000,000 which was spent upon that part of the subway traversing the district so notably benefited had been assessed directly upon the property, its owners would still have netted a neat profit of some $67,500,000, while had the cost of the en- tire subway been assessed upon the same limited district, the net profit to the land owners would have been $37,500,000. Was it quite fair that property in distant parts of the city, entirely unaffected by this great project, should bear the same proportion of the burden as that which was so conspicuously advantaged ?" * 10 In Canada, very generally, the cost of constructing or extending pub- lic utilities or of acquiring them if already constructed, may be defrayed by the levy of local assessments upon those benefited in proportion to their benefits. Saskatchewan, Stats., 1916, ch. 19, part XII; Revised Statutes, Ontario, 1914, Local Improvements, ch. 193; Revised Statutes, Manitoba, 1913, ch. 133, sec. 483- * Proceedings of the Fourth National Conference on City Planning, p. 43 at 46. "The report of the City Club, here referred to, is also mentioned with approval by the Federal Electric Railways Commission in its report to the President, published by the Government Printing Office, August, 1920. See also an article entitled "Low Street Railway Fares With the Help of the Land Owner," by Louis B. Wehle, in the National Municipal Review for October, 1921. The following legal provisions for the construction of a rapid transit road in the manner described in the City Club's report arc on the statute books of New York State, but have never been made use of : New York Laws 1909, amending (by sec. 17) laws 1891, ch. 4, as heretofore amended by adding thereto sec, 37. pars. 3-9; here Riven as amended by Laws 1915, ch. 545, applying to cities of over a million in- habitants i.e., New York City. RP<1 3. ... A rapid transit railroad, owned or to be owned by the city, raii'road ar| d ^ or tne construction of which with public money in whole or in part owned by a contract or contracts have been or are authorized by this act t-> he city to be entered into as aforesaid, shall be a l"i-:il improvement, the cost of which It rore- lin railroad may be met in whole or in part by assessment on the property ment. benefited. The public service commission with the approval of the board 373 Increment Taxation. It has often been urged of .late that there should be a special tax on increments in land value, of estimate and apportionment . . . shall have power to determine whether all or any, and if any, what portion of the cost and expense necessary to be incurred for any such road shall be assessed upon property benefited thereby, and whether all or any, and if any, what portion of the cost and expense necessary to be incurred, or which shall have been already neces- sarily incurred, for the acquisition of any property for the construction or operation of said railroad shall be assessed upon property benefited by said railroad. An assessment or assessments upon the property so benefited may be laid, confirmed, enforced and collected in accordance with such determination and pursuant to the provisions of the charter and laws respecting assessments for local improvements in such city. * 4-6. Procedure, etc., in levying such assessments. 7. In order to provide funds in advance of the collection of such assessments, the comptroller or other chief financial officer of such city shall in addition to power to issue assessment bonds under the provisions of any law or charter of such city have also additional authority in lieu of issuing any such assessment bonds under said law or charter to issue and sell at not less than par on or after the date when any such assess- ment shall be confirmed and entered bonds which shall be known as rapid transit construction bonds for the railroad designated as aforesaid and which shall not exceed in the aggregate the amount of the assessment so levied as aforesaid. Except that the city may guarantee in such bonds the validity of the assessment and the regularity of the proceedings to levy it, such rapid transit construction bonds shall not be issued or sold upon the faith or credit of the city and the faith or credit of the city shall not be pledged nor shall the city or any of the city's property be liable for the payment thereof, but such bonds shall be payable only out of the rapid transit construction fund as hereinafter directed to be constituted. Such bonds shall be in such form, denomination or denominations, and for such term, not exceeding fifteen years, as the said comptroller or other financial officer shall designate, and shall bear the same rate of interest as the assessment installments shall bear. . . . 'In selling such rapid transit construction bonds the comptroller may by the terms of sale or otherwise prescribe that payment to him therefor shall be made by the purchaser in such installments as the need of con- struction as certified to him by the public service commission shall require, and may provide for the forfeiture of the right to bonds allotted and of payments made thereon. All moneys derived from the sale of such bonds, and all moneys derived from the collection of such assessments shall be kept separate and apart from all other funds of the said city and shall be known as the rapid transit construction fund of such rail- road. . . . They shall be applied only to the following uses and among such uses, only in the following order as nearly as may be: (i) To cost and expenses of the construction of such railroad and the acquisition of property necessary for such construction, including equipment other than rolling stock; (2) to the acquisition of real property necessary for the operation thereof ; (3) to the retirement of the rapid transit construction bonds therefore. . . ." * 8. Proceedings in cases of default on bonds, reductions in assess- ments ; excess of cost of road over assessments, etc. *9-io. Partial assessment of costs; procedure when funds derived from assessment are insufficient, * Summarized, Assess- ments; de- termination of property benefited, collection. Issue and sale of rapid transit construc- tion bonds. City's faith and credit not pledged. Bonds; form, in- terest, ex- emption from' taxation, etc. Terms of sale. Rapid transit construc- tion fund. Uses of assess- ments. 374 THE LAW OF CITY PLANNING AND ZONING heavy enough to appropriate for general use the major part at least of gains due to that cause. It is asserted that the rise in land values is, in the main, the result of the general improve- ment of the community, and its increase in numbers, and, in so far as expedient, may with justice be appropriated for general use by special taxation. It is impossible within the limits of this work to discuss the merits of such taxation ; but some of its applications may with profit be considered. 28 Germany has now for many years made use of increment taxation. As administered in that country there are certain practical objections to it. Germany makes the entire levy at the time of the sale of the real estate, appropriating at that time a substantial portion of the increment in value since the last sale. This system yields an uncertain income and often absorbs such a large percentage of the selling price as to cause hardship and prevent the free sale of land. Land is usually mortgaged, and often improved land is subject to more than one mortgage, so that the total indebtedness on it equals a large percentage of its value. If, as is said often to be the case in Germany, the increment tax takes all or more than all the equity in the prop- erty, sales are made exceedingly difficult. The objections just stated are not inherent in increment taxation ; indeed a bill free from them was introduced into the New York legislature. 24 It took the assessed value of land, " The increment may in some cases be obtained for the city by excess condemnation, if legal (See p. 59 above) ; and in Germany these returns are sometimes secured to the municipality by the purchase of land at private sale, but cannot be condemned for that purpose. "Assembly Intro. No. mo, 1915. The bill reads (in part) as follows: "For the purpose of imposing a tax upon the unearned increment, in addition to the general tax upon real estate, the department of taxes and assessments of the city of New York shall cause to be included in the books for the annual record of the assessed valuation of real e-tatc. kept as provided in section eight hundred and ninety-two of this act, two addi- tional columns, in the first of which there shall be set \vn in each year the basic value, as hereinafter defined, of each separately assessed parcel of real estate except special franchises, and in the second there shall be set down the amount, if any, by which the assessed value of such parcel for the current year, assessed as if wholly unimproved, exceeds such basic value, which excess shall, for the purpose of this tax, be deemed tlie un- earned increment. The basic value of any parcel of real estate shall al- ways be the assessed valuation of such parcel, ass<"--< tin- 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 ju->t compensation from the District of Columbia for the taking, if any, of the easements involved in said designation, subject to deduction for Ix-iv fits; 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 nf Co- lumbia, holding a district court of the United States for said District. PLANNING FOR THE PROMOTION OF BEAUTY 389 beautiful in nature and art. This evolution in our law is due more to general practice and its effect on public opinion than to legal decisions. The growing recognition of ethical values, as indicated in the Gettysburg case, and of the need of rest and recreation in pleasant surroundings, as so well stated in the Shoemaker case, have been potent factors in this evolution ; but perhaps the greatest influence has been the constant practice of spending money raised by taxation for the adornment of public places. This fact is presented clearly and convincingly by Nichols in the latest edition of his standard work on Eminent Domain 14 as follows : "From the earliest recorded times public money has been spent to make public buildings attractive, and under American constitutions it has long been considered proper for the nation, state or city to erect memorial halls, monuments, and statues and to plan public buildings upon a more expensive scale than if designed for utility alone. The public mind has thus been educated to feel that aesthetic upon application in writing, made within said year and not thereafter by such owner or owners or persons having an interest against the Dis- trict of Columbia ; and upon failure of any such owner or owners or per- son having said interest to thus present such claim within said period, said right shall cease and determine. "Sec. 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 dam- ages, 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 prop- erty 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 more than benefited." * Sees. 4-7. Procedure in assessing benefits. "Sec. 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 Chap- ter 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 the said commissioners." * Sec. 9. Appropriation to carry out the act. * Sec. 10. Enforcement and penalties. 14 Second Edition (1917), Vol. I, pp. 162-163. * Summarized. 390 THE LAW OF CITY PLANNING AND ZONING and artistic gratification are purposes public enough to justify the expenditure of public money, and to authorize the exercise of eminent domain in behalf of similar purposes was but a short step beyond." " '"While there are some dicta that property cannot be. condemned merely for ornamental purposes or for purposes of pleasure, and there is little, if any, direct authority to the contrary, yet the undoubted ten- dency of the more recent decisions is in the opposite direction, ami the time is not far distant, it is believed, when it will be the accepted rule that a municipality may be authorized to condemn property for aesthetic purposes." McQuillin Alunic. Corps. (1912 sec. 1485.) "Public money may be expended in acquiring property to be used for purposes largely aesthetic in their nature, such as parks, boulevards, and museums, and in beautifying and adorning public buildings and other public property, already possessed. So, also, may the property of indi- viduals be condemned for such purposes on payment of compensation." Note on "Exercise of Police Power for Esthetic Purposes," 34 Lawyers Reports Annotated (1911), pp. 998-999. "It is not necessary that every part of all highways should be used for the passage of vehicles and pedestrians. It is proper that some regard should be had for the aesthetic tastes, the comfort, health, and conveni- ence of the public; and if the legislature had enacted that Clinton Avenue should be increased in width to the extent provided in this act, and had provided that a strip in the center of the highway, forty feet wide, should be devoted to trees and flowers, as is done in many of our cities, it would hardly have been questioned that this constituted a public use, in the same sense that a park preserve is generally recognized as a public use. Shoe- maker v. U. S., 147 U. S. 282, 297. 13 Sup. St. 361, 37 L. Ed. 170, and authorities there cited. Because the legislature has preferred to leave this breathing space upon the sides of the street, subject to the limited use of the owners of the fee, does not change its essential character, and the improvement is undoubtedly much less expensive than the one which is suggested as within the legislative discretion." In re City of New York. 68 N. Y. S. 196, 200, 57 App. Div. 166, affirmed without opinion in 167 N. Y. 624 (1901); sometimes cited as "In the matter of Clinton Ave- nue." The New York law referred to is 1899, ch. 257. I'nder chapter 170 of the Laws of New York for 1900, the Commis- sioners of Palisades Interstate Park were authorized to condemn such land in the vicinity of the Palisades, within certain limits, "as may in their opinion be proper and necessary to be reserved for the purpose of establishing a State Park and thereby preserving the scenic beauty of the Palisades." In a case under this statute it was decided that "the taking of land used as a stone quarry alone: the Palisades of the Hudson and adjoining the state park for the purpose of preserving the scenic beauty of the river and of the park, is a taking for a 'public use' though the land itself is so rugged as not to be adapted for use as a park" Bunyan v. Commissioners of Palisades Interstate Park, 1915. 153 N. Y. S. 622. See also Foster v. Park Com'rs., 133 Mass .u>i (iXXjt The appropriation of the water of a stream for a waterfall essential to the beauty of a summer resort, is a legal appropriation for it, under the Colorado law which gives the first taker the legal right to the water; and a company demanding it for commercial uses, cannot claim that such uses are the only beneficial ones. In so deciding the court says : "Is it no benefit to the public to spend money in making a beautiful place in nature visible and enjoyable? ... It is a benefit to the weary, ailing and feeble that they can have the wild beauties of nature placed at their convenient disposal, k a piece of canvas valuable only for a PLANNING FOR THE PROMOTION OF BEAUTY 3Qi Promotion of Beauty under Police Power. It is neither possible nor desirable in all cases to attempt to promote the aesthetic or any other phase of the public welfare by the expenditure of public money. If the number of people affected by any measure is great, compensation for the resulting limita- tion of property rights is often impracticable, and regulation without compensation under the police power must be resorted to or the desired result will be practically unattainable. The question arises in any given class of cases whether regulation without compensation can reasonably and properly be imposed, the decisions turning upon the answer to such questions as whether the sacrifice demanded is too great and the end to be attained sufficiently important. If the city dweller is to live in pleasing surroundings, not only public property but private property exposed to general view must be pleasing. This consideration applies especially to the city streets. The street, as legally defined, consists of the land within the street lines; the street to the ordinary citizen includes those parts of the buildings or other structures which border it and which he sees, and is intended to see, when pas- ing through it; indeed to him the character of the street is in these structures much more than in the mere street surface. Fifth Avenue in its street surface is not peculiarly distinguished from many other of the streets of New York ; it is the buildings abutting on Fifth Avenue that make it one of the best known thoroughfares in the world. In all civilized countries money raised by public taxation is spent to erect public buildings, to acquire for them suitable sites, and in countless ways to make the appearance of land tent-fly, but worthless as a painting? Is a block of stone beneficially used when put into the walls of a dam, and not beneficially used when carved into a piece of statuary? Is the test dollars, or has beauty of scenery, rest, recreation, health, enjoyment, something to do with it? ... When the defendant company says the complainants are putting the fall of the water to no. beneficial use, it means that the complainants are not ruining the beautiful scenery for cash." Cascade Town Co. v. Empire Water & Power Co., 181 Fed. Rep. ion (1910). It was long ago held that roads might be laid out to provide access to places of beauty; Higginson v. Nahant, n Allen (Mass.) 530 (1866). See in this connection, Appeal of Rees, 8 Sadler (Penn.) 582 (1888). Consult also 20 Corpus Juris, 583. 392 THE LAW OF CITY PLANNING AND ZONING abutting on public streets attractive ; but evidently most of this abutting land must and should be in private use and cannot be made pleasing to the passerby at public expense. If this is to be accomplished to any considerable extent it must be by restric- tions imposed without compensation; and it only remains to determine whether regulations to this end which will not be unreasonably burdensome to the private owner can be devised to bring about this result. In spite of the many difficulties involved, European countries and Canada on this side of the water, 16 have found it possible to make and enforce such regu- lations; but, except for the amendment of the Massachusetts constitution, authorizing the regulation of bill boards, 17 we in this country have not as yet devised any method of doing so; for under our state constitutions the police power cannot be used to promote civic beauty; 18 although if the main purpose 16 In the province of Quebec, Canada, under R. S. 1909, art. 5638, par. No. i, municipal councils may pass by-laws to regulate the architecture, dimensions and symmetry of buildings in certain streets; and the munici- pal council of the city of Quebec, in an amendment to its charter (Laws, 1909, ch. 80, sec. 4) is given the same power. In this connection, the following statute of the Province of Saskatche- wan, Canada (1916, ch. 19), is of interest: "ESTABLISHING A MUNICIPAL CENTER "211. In the event of the council acquiring land for the establishment of a municipal center, with a view to grouping together in some central location the municipal offices and other buildings of a public character, it shall be in the power of the council to pass bylaws or regulations pre- scribing the height, structural character and architectural features of all buildings on lands fronting on or adjoining such municipal center and the uses to which such buildings may be put. and prohibiting the use of any such buildings on such frontage or adjoining lands for the exhibition of advertisement hoardings, or the holding of travelling shows, or for any other purpose which the council may deem jesthetically offensive or obnoxious, having regard to the character of the locality as a municipal center : "Provided that the council shall not be liable, in respect of any such bylaws or regulations or the enforcement thereof, to make compensation to the owners or occupiers of lands or buildings affected thereby, except- ing in the event of any building having to be taken down, removed or altered in consequence of such bylaws or regulations, in which case the amount of compensation shall, failing agreement, be determined by arbi- tration in the manner provided for by part X of this Act." 11 See p. 395, note 22. "McQuillin. Munic. Corps., Vol. Ill, sec. 929, and cases there cited. See to the contrary, however, Churchill ct al. v. Rafferty, Collector, in the Supreme Court of the Philippines, HIT.. i<>!5 (14 Official Gazette, p. 383, Feb. 16, 1916). and the long editorial on the case in the New York PLANNING FOR THE PROMOTION OF BEAUTY 393 of the measure in question justifies the employment of that power, the promotion of beauty may be a subsidiary considera- tion. 19 Legal writers have not all been reconciled to the law as thus stated ; and the courts have on several occasions, in their dicta, shown the same feeling. 20 Law Journal of October 16, 1916, in which, after stating its belief that some state in this country would be courageous and wise enough to up- hold the aesthetic regulation of bill boards under the police power, that paper quotes among others, the following passages from the opinion of the court : "The success of billboard advertising depends not so much upon the use of private property as it does upon the use of the channels of travel used by the general public. Suppose that the owner of private property, who so vigorously objects to the restriction of this form of advertise- ment, should require the advertiser to paste his posters upon the bill- boards so that they would face the interior of the property instead of the exterior. Billboard advertising would die a natural death if this were done, and its real dependency not upon the unrestricted use of pri- vate property, but upon the unrestricted use of the public highways is at once apparent. Ostensibly located on private property, the real and sole value of the billboard is its proximity to the public thoroughfares. Hence we conceive that the regulation of billboards and their restric- tion is not so much a regulation of private property as it is a regulation of the use of the streets and other public thoroughfares. . . . "It may be that the courts in the United States have committed them- selves to a course of decisions with respect to billboard advertising, the full consequences of which were not perceived for the reason that the development of the business has been so recent that the objectionable features of it did not present themselves to the courts nor to the people. We in this country have the benefit of the experience of the people of the United States arid may make our legislation preventive rather than cor- rective." In comment on the second quotation from the case the editors of the Law Journal say : ''It seems highly probable that the authority reasonably to regulate public aesthetics would now be recognized by the Supreme Court of the United States as not impugning the Fourteenth Amendment." It should be especially noted in connection with the Rafferty Case that the Organic Act of the Philippines (39 U. S. Stats, at Large, 545 ch. 416 (Public No. 240), sec. 3, approved Aug. 29, 1916; repealing and superseding the similar provision, 32 Stat. 691, ch. 1369, Publ. No. 235, sec. 5, approved July i, 1902. These acts, and others, will be found in a compilation, issued by the Government Printing Office in 1920, entitled "Acts of Congress and Treaties Pertaining to the Philippine Islands in Force July i, 1919) incorporates the provisions of the Fourteenth Amend- ment of the United States Constitution, that no person shall be deprived of property without due process of law, which is one of the provisions upon which the courts base their decisions that aesthetic regulation of billboards is unconstitutional. " Welch v. Swasey, 193 Mass. 364 at 375. 10 A Maryland statute (1904, ch. 42) provided that no building to ex- ceed seventy feet in height should be erected in a designated portion of the city of Baltimore, in the center of which stands the Washington Monument. The statute was attacked as a taking of private property 394 There is little doubt that if a state, by amending its con- stitution, expresses its belief and purpose that the police power shall be used conservatively for given aesthetic purposes, the without compensation for a purely aesthetic purpose and therefore for a private use, which was unconstitutional. The Court, in sustaining this contention, says : "Such is undoubtedly the weight of authority, though it may be that in the development of a higher civilization, the culture and refinement of the people has reached the point where the educational value of the Fine Arts, as expressed and embodied in architectural symmetry and harmony, is so well recognized as to give sanction, under some circum- stances, to the exercise of this (police] power even for such pur- poses. . . ." The statute was upheld, however, on the ground that the object of the act is not merely to preserve the architectural beauty of the locality but also to avoid the increased danger from fire which arises from tall buildings in the event of a general conflagration. Cochran v. Preston, 108 Md. 220 (1908). "It is generally assumed that the prohibition of unsightly advertise- ments (provided they are not indecent) is entirely beyond the police power, and an unconstitutional interference with the rights of property. Probably, however, this is not true. It is conceded that the police power is adequate to restrain offensive noises and odors. A similar protection to the eye, it is conceived, would not establish a new principle, but carry a recognized principle to further application. It is true that ugliness is not as offensive as noise or stench. But on the other hand offensive manufactures are useful and the offense unintentional and inevitable, whereas in the case of an advertisement the owner claims the right to obtrude upon the public an offensive sight which they do not want, and which but for this undesired obtrusion, would not be of the slightest value to him." Freund, Police Power, p. 165. In sustaining a St. Louis billboard ordinance, providing that : (a) No billboard shall exceed fourteen feet in height. (&) Billboards shall have open spaces of four feet from the lower edge to the ground. (f) Billboards shall not be nearer than six feet to a building or the side line of any lot or nearer than two feet to any other billboard, (rf) Nor over five hundred square feet in area or closer to the street line than fifteen feet, a Missouri Court says : "This is a legitimate and honorable business, if honorably and 1- mately conducted, but every other feature and incident thereto have evil tendencies, and should for that reason be strictly regulated and controlled. The signboards and billboards upon which this class of advertisements are displayed are constant menaces to the public safety, and welfare of the city; they endanger the public health, promote immorality, constitute hiding places and retreats for criminals and all classes of miscreants. They are also inartistic and unsightly. "In cases of fire they often cause their spread and constitute barriers against their extinction; and in cases of high wind, their temporary char- acter, frail structure and broad surface, render them liable to be Mown down and to fall upon and injure those who may happen to be in tln-ir vicinity. The evidence shows and common observation teaches us that the ground in the rear thereof is being constantly used as privjps and PLANNING FOR THE PROMOTION OF BEAUTY 395 Supreme Court of the United States will not declare the state action invalid. 21 Many such amendments have from time to time been offered in the various states, but as yet Massachusetts is the only state in which any such amendment has been adopted. 22 dumping ground for all kinds of waste and deleterious matters, and there- by creating public nuisances and jeopardizing public health; the evidence also shows that behind these obstructions the lowest form of prostitution and other acts of immorality are frequently carried on, almost under public gaze; they offer shelter and concealment for the criminal while lying in wait for his victim ; and last, but not least, they obstruct the light, sunshine and air, which are so conducive to health and comfort. . . . "The amount of good contained in this class of business is so small in comparison to the great and numerous evils incident thereto that it has caused me to wonder why some of the courts of the country have seen fit to go as far as they have in holding statutes and ordinances of this class void, which were only designed for the suppression of the evils incident thereto and not to the suppression of the business itself. . . . My individual opinion is that this class of advertising as now conducted is not only subject to control and regulation by the police power of the state, but that it might be entirely suppressed by statute, and that, too, without offending against either the State or Federal Constitution." St. Louis Gunning Adv. Co. v. St. Louis, 235 Mp. 99 (1911). "The views in and about a city, if beautiful and unobstructed, con- stitute one of its chief attractions, and in a way add to the comfort and well-being of its people. Billboards for advertising purposes, erected to any great height, would undoubtedly be subject to all of these, as well as other, objections, and such structures are, therefore, plainly within the regulating power of the governing of a city." Matter of Wilshire, 103 Fed. Rep. 620 (1900). See also 20 Harvard Law Review, 35. An im- portant case, recently decided, of general interest on this subject, is St. Louis Poster Adv. Co. v. St. Louis, 249 U. S. 269 (1919). 11 See p. 22. 12 Amendment to Constitution of Massachusetts adopted November 5, 1918: "Art. L. Advertising on public ways, in public places and on pri- vate property within public view may be regulated and restricted by law." Under this amendment a statute (Gen. Laws 1920, ch. 93, sees. 29-33) has been enacted empowering the division of highways of the depart- ment of public works of the state to pass rules and regulations with regard to such advertising; and such regulations were issued, Dec. 20, 1920. These rules still leave the owner of land abutting on a highway free, in most cases, to display outdoor advertising in full view of it ; but no such advertising is allowed "within the bounds of any highway" a prohibition that may be made in any state, and is made in many of them "nor on any location within 300 feet of any park, parkway, play- ground, state reservation, or public building," nor "upon any rock or tree nor upon any fence or pole bordering any public highway." The regulations further provide that "no permits shall be granted for the location or maintenance of signs near certain highways in territory which, in the opinion of the division, is of unusual scenic beauty. Such places will be designated by the division from time to time." The right is re- served to pass upon the subject matter displayed and to approve of the size, shape and material of signs. An amendment covering the field more completely, prepared by the 396 THE LAV,' OF CITY PLANNING AND ZONING Promotion of Beauty Without Compensation in Europe. In Europe regulations imposed by the state with- out compensation and thus analogous to our police power, are used, independently or in conjunction with eminent domain and compensation, to preserve and promote beauty, and prevent the defacement of private property exposed to public view. These regulations may for convenience be classified under two heads : the more general provisions for these purposes and the pro- visions formulated to cope with the abuses of out-door adver- tising. 28 Classification in France. Probably no country in Europe has been more active and intelligent in its efforts to protect its art treasures and natural beauties than France. 24 Legislation author for presentation to the Moot Constitutional Convention of the National Municipal League, held at Cleveland, Ohio, December 29, 1919, and unanimously adopted, reads as follows : "The preservation of places and things of historic significance or of beauty difficult or impossible of replacement or duplication, and the pro- motion of the beauty of the view of or from public places or structures being in the public interest, reasonable regulations with respect to private property may be enacted to these ends." A. shorter amendment was proposed by Albert S. Bard, Esq., of New York City, reading as follows : "Reasonable regulations may be enacted with respect to the appear- ance of private property visible from any public place." " With relation to aesthetic legislation in Europe generally see : French Law La Beaute de Paris et La Loi by Charles Lortsch, Librairie Recueil Sirey, 22 rue Soufflot, Paris, 1913; La Beaute de Paris by Charles Magny, Librairie Bernard Tignol, 53 bis quai des Grand Augustins, Paris, 1911; Comment Reconstruire nos Cites Detruites, by Agache, Aubartin and Redont, Librairie Armand Colin, Paris, 2d ed. 1916. German Law: lias Kgl. Sachs, Gesets gcgen Verunstaltung vom 10 Mars 1909, Rossberg'sche Verlagsbuchhandlung, Leipzig, 1909, which contains a preface with an excellent history of the entire European movement, and the laws on the subject not only of Saxony but of several of the other German states. "But not more so than in Italy. The regulation and prohibition of the export of certain classes of works of art began in Rome in the fifteenth century under Popes Paul II and Sixtus IV. Noteworthy are the Lex Doria Pamphili of 1802 and the Lex Pacca of 1821, which remained in force until 1902. Similar statutes are to be found in a number of other Italian cities in the nineteenth century. Protection of movable works of art and articles of historic interest led to the protection of buildings and places of like character. The statutes at present in force throunh-nit Italy are the law of June 20, 1909, n. 364, as amended by the law of Juno 23, 1912, n. 688. More or less similar laws, since amended, have l-en passed in Sweden (1867), various cantons of Switzerland, Denmark (1869), Roumania and Portugal (1892). Japan has recently passed a law for the preservation of the beauty of landscapes and of historical and natural monuments (Law No. 44 of 1919; see also- decrees Nos. 261, PLANNING FOR THE PROMOTION OF BEAUTY 397 for this purpose began there in 1830. In 1887, to accomplish this purpose, she adopted a system which is generally referred to as "Classification." By this system she protects both public works of art a matter of no special legal difficulty and privately owned objects and places of beauty. On December 31, 1913, she codified most of her legislation on this subject, in a law somewhat inaccurately entitled the "Law with regard to Historic Monuments" 25 which may be summarized as follows : Real properties belonging to the state, a department, a commune, a public establishment or a private individual, the conservation of which, from the point of view of history or art, is for the public interest, may be classified as historic monu- ments. The classification is made by the Minister of Fine Arts subject to an appeal to the Council of State. Upon notification to the owner of the intention of the Administration of Fine Arts to ask for classification, all the requirements of classifi- cation apply. They cease to apply if the decision to classify is not made within six months of this notice. If the property is private, and the owner does not consent, the classification in some cases gives rise to a claim of indemnity proportionate to the injury caused by such a classification. Classified public property cannot be sold until the Minister of Fine Arts has been notified and been allowed fifteen days within which to give his opinion on the subject; in default of this notice the Minister may within five years nullify any such conveyance. No classified property shall be destroyed, removed in whole or in part, restored, repaired or in any way changed or added to without the consent of the Minister of Fine Arts. He may always repair or maintain private classified property when necessary for its conservation. No person can acquire any right by prescription in a classi- fied property or easement in it which may cause it injury, or any 281 of 1919) a translation of which will be found in the report for 1920 of the American Scenic and Historic Preservation Society, to the Legis- lature of the State of New York, p. 422 ff. In this connection the re- ports of the Society contain much valuable information. The law of England and of the German states is given below. " Passed Dec. 31, 1913. A translation of the law practically in full is given on p. 423, ff. of this work. 398 THE LAW OF CITY PLANNING AND ZONING easement 2e whatever except with the consent of the Minister of Fine Arts. The effects of classification run with the land and bind all those subsequently acquiring any interest in it. Whoever con- veys a classified property shall notify the purchaser of the classification and shall, within fifteen days of such conveyance, notify the Minister of Fine Arts. A list of classified properties and orders and decrees of classification shall be recorded in the Bureau of Mortgages of the locality where the property is situated. There shall also be drawn up a list of properties which, while not justifying a special demand for immediate classification, should nevertheless be preserved. The owners of properties entered on the list shall be notified and shall not make any alteration of such property until after five days previous notice to the prefect. The Minister of Fine Arts, on behalf of the state and the departments and communes, after the Minister has had an opportunity to be heard, may expropriate property classified or proposed for classification. No new structure shall be classified without the authority of the Minister of Fine Arts. Property may be wholly or partly declassified by a decree of the Council of State on petition of the Minister of Fine Arts or the proprietor. Movable objects, including fixtures, the conservation of which from the point of view of history or art is in the public interest, may also be classified by direction of the Minister of Fine Arts, much like real property. Private property of this sort can be classified only with the consent of the owner or by a special law. The exportation of classified objects from France is prohibited. The Administration of Fine Arts may order the provisional transfer of a classified movable for safety, but within three months measures must be taken for its per- manent security. The owner may obtain its return on satis- fying the authorities that the article will be safe. 27 " Known as "Servitude" in Roman law countries. "Hesse (Law for the Protection of Monuments, etc., of July 16. 1902, to be found also in the book on the Saxon law, referred to on p. 396) and Wiirttemberg (Building Ordinance of July 28, 1910, Tiibinscn, 1912, art. 97) have adopted the system of classification in the protection of PLANNING FOR THE PROMOTION OF BEAUTY 399 Like "historic monuments," places of natural beauty are also classified in France, and with much the same effect in law. 28 Protection of Ancient Monuments and Places of Beauty in England. The English act which provides for the preservation of objects of beauty is much like the French law passed to effectuate the same purpose, and is of especial interest to us because of the similarity of our legal systems. The English statute is entitled "Ancient Monuments Consolidation and Amendment Act, 1913." 29 The original act was passed in i882. 30 It extended only to prehistoric remains and merely authorized the Commis~ sioners of Works to purchase such monuments, receive them as gifts, or accept the guardianship of them if offered by the owner for this purpose. As a part of the monument were in- cluded its site and access to it. Monuments in the custody of the Commissioners might be maintained by them. Any person, including the owner if he had relinquished its custody, who injured or defaced an ancient monument, was guilty of a crime. In 1900 the act was amended 31 to include in its protection any monument or structure of historic, traditional, artistic or architectural public interest; but remained permissive. The act of 1913 adds compulsory provisions. Under the present act, if the preservation of the monument is of national importance and it is in danger of destruction, or removal, or damage from neglect, or injudicious treatment, a "preserva- tion order" may be issued, placing it under the protection of the commissioners. Such an order, unless confirmed by Parlia- ment, expires in eighteen months, and no such order shall thereafter be issued for five years. private property of general historical and artistic interest. The statute of Hesse follows the French statute closely and the W'urttemberg pro- visions conform to it in general principle, using building regulation, in part, for the purpose. 8 "Law for the Protection of Places of Beauty," of April 21, 1906, a translation of which is given practically in full on p. 422 of this work. "3 and 4 Geo. V, ch. 32. The statute is given practically in full on p. 432 of this work. *45 and 46 Viet. ch. 73. "63 and 64 Viet. ch. 34. 400 THE LAW OF CITY PLANNING AND ZONING The commissioners shall from time to time make and pub- lish a list of monuments the preservation of which is of national importance. Any owner who proposes to demolish, remove, structurally alter or make additions to any such monument shall first notify the commissioners and shall not, except in case of urgent necessity, commence any such work for one month thereafter, on penalty of fine and imprisonment. 32 Building Regulation in Germany in the Promotion of Beauty. It is by rules forming a part of the system of build- ing regulation characteristic of Germany, Switzerland and Aus- tria, that these countries for the most part seek to promote and preserve the beauty of private property exposed to public view. The system prevailing in Germany will be here described as typical of that in all three countries. 83 Before this can be done, however, it will be necessary to consider briefly the law in Ger- many with regard to aesthetics generally. 34 The German states have for many years authorized the issuance of police ordinances for aesthetic considerations. Thus the Prussian law, as early as 1794, empowered the police to make ordinances for the purpose of preventing the disfigure- ment of public places 35 but, under the decisions, only a gross disfigurement could be so dealt with; and this in most of the states remained the law until about the year 1907. Certain cities, among which may be noted Frankfort 36 and Hildes- heim 37 passed local statutes or ordinances before 1907 requir- Sees. 18 and 19 of the act, given in full on pp. 43, 99 of this work, are most interesting. They relate to phases of the subject that will he taken up later, but for a complete idea of the statute, should be read in this connection. "The law of the city of Lausanne of January 15, 1915, should be noted in this connection. ** For the system used in Hesse and Wurttemberg, see p. 308, note 27. Most if not all the German states have classified their public art treasures and systematically inspect and protect them. See Balz, Batipolizcir,-* ht, 4th ed. Carl Heymann s VerlaR. Berlin, 1910, p. 96, for Prussia; and the annotated editions of their building laws for the law and its administra- tion in other states. Private property of beauty or general interest may be expropriated. Wiirttemberg Building Ordinance of July 28, 1910, art. 97 cited on p. 398 above; Hesse, Law of July 16, 1902, also referred to on p. 398 above. "A. L. R. (Allgemeines Landrecht or Code of Prussia, the work of Frederick the Great), I, 8, sec. 66, 71. ""Ordinance to Maintain the Ancient Character of Parts of Ccrtaiw PLANNING FOR THE PROMOTION OF BEAUTY 401 ing new structures in the older sections of the city to conform to the ancient styles of architecture; but the validity of these statutes was considered at least doubtful. About the year 1907 the German states began to pass leg- islation giving the authorities increased power to promote pub- lic beauty and prevent public disfigurement, and at present there are general statutes, or amendments to the general building laws or ordinances to this effect in most of these states, and ordinances or local statutes taking advantage of these powers in many of their cities. Establishment of Street and Building Lines Partly for Esthetic Reasons. The German requirements for the pro- motion or preservation of the beauty of private property ex- posed to public view are made either as requisites to be observed by the public authorities in the establishment of street and building lines, etc., or as conditions to be fulfilled by the prop- erty owner before he can obtain a building permit. 38 In Germany the lines of future streets are fixed by plans made long before the land for the streets is acquired. These plans bind private property and are established under the police power without compensation. 39 For many years the building police have been empowered and directed to pay due regard to considerations of aesthetics in fixing these lines. The weight which might be given to aesthetic considerations under the earlier statutes and the decisions interpreting them was much less than under the more recent laws. Thus the Prussian City Planning or Building Line Statute of 1875 provides that: "SEC. 3. In establishing street and building lines, due regard shall be paid to the requirements of traffic, safety from fire, and public health, and care shall be taken that there shall not be any disfigurement of the streets :" * to which the Housing Law of 1918 has added, "nor of the general view of the town." 4 Streets in the Old City," passed Feb. 27, 1000, and repealed and super- seded by the local statute against defacement, passed Nov. 3, 1911, by virtue of the Prussian Act of 1907. 37 Passed June 17, 1899. 38 As to Hesse and Wtirttemberg, see ante, p. 398. 39 See p. 454 below. 40 For a translation of the entire law, see p. 466. 41 See p. 473. 402 THE LAW OF CITY PLANNING AND ZONING The cases in interpretation of this aesthetic provision point out the fact that it is based upon the General Land Law, 42 and that, therefore, "disfigurement" means "the production of a condition that is positively ugly, and offends the eye of every impartial observer." Under Art. II of the Wiirttemberg law, of July 28, 1910, however: "In the establishment of new and the change of existing city plans and building lines . . . care shall be taken to preserve build- ings of artistic and historic value, objects of natural beauty ... at- tractive street and landscape views; and that in the construction of newly planned streets and squares, new views of like nature shall be created." In practice cities in other countries fix their street lines in part for aesthetic reasons ; 43 but in this connection as in others Germany has worked out her legal system more defi- nitely and explicitly than has been done elsewhere. Issuance of Building Permit Subject to Fulfillment of Esthetic Requirements. In all civilized countries a per- mit is required for the erection, alteration or repair of any structure and for the construction of any addition to it; and such work must fulfill certain requirements or the permit will not issue. In all these countries these requirements include provisions with regard to stability, hygiene, etc. ; in Germany there are also aesthetic requirements. These aesthetic pre- requisites to the issuance of the permit may for convenience be *A. L. R., i, 8, sees. 66, 71. **Thus the Paris building and street line statute with its invariable height limit for the building proper and limiting angle for the roof, is framed to produce, so far as possible, the uniform sky line so dear to Parisians (see Les Rtglemcnts de Vo\nc, by Louis Bonnier. Charles Schmid, Editor, 51 Rue des ficoles, Paris, 1903) ; while the New York City zoning resolution allows towers to any height on a given portion of the lot, and, limiting height, generally at the street line, permits greater height with setbacks (see p. 270), to preserve the irregular sky line, so characteristic of the city; thus producing many buildings, new in type, of great beauty. The primary purpose of the rules in both cities is to preserve the supply of light and air and lessen congestion. Everywhere, also, building regulation allows the projection beyond the line fixed for buildings, of ornamental features, to encourage builders to include them in their plans. PLANNING FOR THE PROMOTION OF BEAUTY 403 roughly divided into those of the period before the legislation of 1907 already referred to and those of that period. 44 Esthetic Legislation of 1907 and Thereafter. In the building laws and ordinances of the various states, as this legislation existed prior to 1907, there were provisions, differing in the different states, making certain specific require- ments with regard to the appearance of private property to be exposed to public view, enforced by refusal to issue permits if they were not complied with; such as, for instance, that the walls of buildings visible from the street should be finished like facades, and not left rough 45 or painted in harsh colors. 48 These provisions were limited to the prevention of what was considered gross disfigurement of the public streets ; for beyond this the law did not permit the building police to go. The aim of the legislation of 1907 and thereafter was to authorize the making of stricter regulations to promote public beauty. More specifically the purpose of these laws was to permit (i) the prevention of disfigurement of public places even if it could not be said in law to be gross, 47 provided an unreasonable burden was not thereby imposed upon property owners; (2) the making, subject to the same proviso, of special requirements with regard to the appearance of buildings in special localities; (3) the more drastic suppression of the evils of outdoor advertising a subject to be considered later. To accomplish all three of these purposes some states have passed general laws, while other states have amended their general building laws or ordinances ; and in substance, also, the 44 It should be noted, however, that in some states there was more progress in this direction before 1907 than in others ; and that at present aesthetic legislation still lags in some jurisdictions. 45 E. g., Frankfort, ordinance of June 4, 1912, sec. 8, par. 5, given in translation on p. 229 of this work : to be found in the same form in earlier ordinances, as for instance that of July 15, 1884, sec. 9; Munich, Staffel- bauordnung of April 20, 1904, sec. 10, parts I, X; Munich Building Ordi- nance of July 29, 1895, as amended March 21, 1900, and Aug. 3, 1910, sec. 67. ** Fagades shall not be painted in harsh colors ; Bavarian Building Ordinance of Feb. 17, 1901, sec. 53, par. II, Building Ordinance of Anhalt of June 19, 1905, sec. 64, par. 2. 47 The Prussian Statute of 1907, however, still requires "gross" dis- figurement before it grants redress. 404 provisions vary in the various states. The general statute of the Kingdom of Saxony, passed March 10, loxx), 48 is fairly typical of all this legislation. 49 The provisions of that statute to prevent disfigurement of public places generally and to allow special requirements to be made in certain localities the por- tions of the statute now to be considered are as follows : "SEC. 2. The building police permit for the construction and alteration of buildings may be refused when thereby a building, or its surroundings, or a street, a built up locality or a country land- scape would be disfigured; provided that a disproportional economic injury or expense shall not thereby be caused the owner. . . ." "SEC. 3. Local statutes may provide that for given streets or squares of historical or artistic importance the building police permit for the construction or alteration of buildings shall be refused if the character or appearance of the locality or street would be impaired thereby." "SEC. 4. Local statutes may provide that the building police per- mit for structural alterations of single buildings of historical or artistic importance or for the construction or structural alteration of buildings in the neighborhood of such structures may be refused when their characteristic appearance or the effect that they produce, would thereby be impaired." "SEC. 9. If by the enforcement of the provisions of sees. 3 or 4 ... a disproportionate economic injury or expense would be caused, the building police may, after hearing the representatives of the mu- nicipality or the lord of the manor, waive the provisions in question when the structure as planned would conform to the character of the building and its surroundings." The German law of the period of 1907 and thereafter for the preservation under the police power, without compensation, of the beauty of private property exposed to public view, of which the clauses of the statute just quoted give us a fair idea, *Gesetz- und Verordnungs-blatt, 1909, Nr. 25. "As examples of general laws, see, in addition to the Saxon statute, referred to in the text, the Prussian statute of July 15, 1907 (< Sammlung, or Collection of Laws for that year, p. 260) ; and as examples of clauses in building laws, etc., see Baden, Building Ordinance of S< pt I, 1907, sec 33 (and long note to same in the edition of Roth, Karlsruhe, 1009); Bavaria, Polizeistrafgesetzbuch, art. 101, par. in, as am July 6, ioo8j and sec. 53, par. IV, of the Building Ordinance, passed under it, the provision having been in force in cities of over 20,000 inlia! : since 1000; \\iirttt mherg, Building Ordinance of July 28, 1910, art. 97 and especially art. 98, par. 2. PLANNING FOR THE PROMOTION OF BEAUTY 405 has for its aim three very different objects: (i) to preserve structures of historic or artistic importance, (2) to prevent public disfigurement in general, (3) to require structures and structural alterations in localities of special beauty or interest to conform to special standards. The provision for the preservation of private structures of historic or artistic importance is admittedly incomplete. The police have no right in any case to prevent the owner from destroying his building, 50 or to forbid him to alter it if this refusal imposes upon him a disproportionate economic injury or expense. For the preservation of such structures the police power alone is in its very nature inadequate and the power of eminent domain must also be employed; as, for instance, is done in France and other countries under the system of classi- fication. Eminent domain is in fact resorted to in Germany for this purpose, the building police notifying the authorities of the imminent destruction of a historic or artistic monument and meanwhile withholding the permit, in order that time may be given to condemn the monument if it seems wise to do so. Preservation of Character of Special Localities. The provision authorizing the making of special requirements for structures and structural changes in special localities, like the provisions for the protection of the appearance of the city generally, is regarded in Germany as a provision permitting the prohibition of public disfigurement ; for the special locality is injured by a structure below its special standards just as the city generally is injured by a structure transgressing its gen- eral standards. This rule for special localities, like all wise and conservative aesthetic laws, is based also on economic con- siderations. The special character of the special locality is an asset of value to every property owner of that locality, of which no one owner has the right arbitrarily to deprive the rest. 51 " 33 This provision is only another application of the rule of jurisprudence and justice which, in all systems of law, re- quires every one "sic utere tuo ut alienum non laedas." 50 See Roth, Baden Building Ordinance, pp. 116-17, note; Balz, Baupoliseirecht, p. 96, note 6. 61-53 See Roth, Baden Building Ordinance, p. 113, note 4.. 406 THE LAW OF CITY PLANNING AND ZONING Dangers of Artistic Censorship. There are grave dan- gers in the policy of establishing an official censorship of any branch of art. The official taste may perhaps be better than that of the inferior artists but can seldom be equal to that of the best ; and in any event the imposition of a standard is likely to suppress originality and establish uniformity. These dan- gers the German officials have, on the whole, been remarkably successful in avoiding. They do not themselves make plans or designs, or deal with the owner, thus superseding the architect ; but instead revise the professional plan submitted to them ; and they do not attempt to introduce into these plans what is ad- mirable but only to eliminate what is inappropriate, elaborate and useless. In so doing they almost invariably lessen the cost of the structure to the owner instead of increasing it. 04 These are also the principles which some of the most successful of the art commissions in this country have adopted, with the same result, in passing upon structures to be placed upon public property. 55 Nor should it be overlooked that the German Building Police, in causing the private structure to be less objectionable to the general public, are also making it more valuable to the owner ; for, as every practical real estate owner or dealer knows, an attractive structure built at less cost, often rents or sells more readily and for a larger sum than a more expensive structure in which appearances have been disre- garded. 56 The results attained in Germany are often charm- ing; but, even if we do not always approve of them, we must "These functions are exercised by "Bureaus of Building Advice." Such bureaus existed before 1907, exercising in most states more limited powers with less assurance of their legal right to act than since 1907. "See p. 563. "This is true the world over. In the course of giving the writer oral instructions as to the investigations he was to make in Europe in behalf of the Heights of Buildings Commission of New York City in 1013, the chairman said : "You will investigate the regulations with regard to the appearance of streets and private structures on them" Here a mem- ber of the committee interrupted "That would be of no use to us; we cannot in this country pass aesthetic regulations under the police power." "Let me finish," said the chairman, "Their appearance y such sign or advertisement.* Sec. 431. Designation of officers for enforcement of article. A mayor of a city, president of a village or supervisor of a town may designate an existim: city, village or town officer or may appoint an officer to per- form the duties prescribed by this article. The compensation for the per- * Par. s, imt it) original bill (No. 555), wu inserted in this print number. PLANNING FOR THE PROMOTION OF BEAUTY 417 formance of such duties shall be fixed and paid in the same manner as for other city, village or town officers. If the duties hereby required to be performed are delegated to an existing officer, additional compensa- tion may be allowed therefor in like manner. Sec. 432. Duties of state tax commission. The state tax commission shall prescribe the form of applications, tax receipts, plates and labels required to be used under this article, and shall have the same powers and duties as to the enforcement of the provisions of this article as are imposed upon it in relation to the assessment and taxation of real prop- erty. Such board is hereby authorized to make rules to secure the proper application and enforcement of the provisions of this article. The Mayor's Billboard Advertising Commission of the City of New York, 1913 (second printing, 1915) in a proposed bill in other respects much like the one given above, provides for a progressive rate of taxa- tion. The Committee explains that "the rate inserted in par. 2 as the unit is the rate suggested by the Commission on New Sources of City Revenue. The rate in par. 6 is merely tentative." The Section in question (page 89 of their report) is as follows: "i. The tax herein provided for shall be a progressive tax increasing in multiples of the respective units of taxation as hereinafter defined and shall be paid for each square foot of the area of the advertisement to which it shall apply, computed as hereinafter provided. "2. In the case of all advertisements subject to tax hereby, except such advertisements as shall be parts of or erected or displayed in or upon a station or structure of a subway, elevated or other rapid transit road, street railroad or railroad, the tax unit shall be two one-hundredths of one per cent, per annum of the value per front foot of the lot occupied by the advertisement according to the last preceding assessment. Where such lot or parcel fronts on more than one street and no front foot value is given by the tax department upon the minor street or streets, the tax unit for the minor street or streets shall be 75 per cent, of the unit for the major street. But in no case shall the tax unit be less than fifty cents per square foot in cities having a population of 1,000,000 or over, nor less than thirty cents per square foot in cities of the first class, nor less than twenty cents per square foot in cities of the second class, nor less than ten cents per square foot elsewhere. "3. If the superficial area of such an advertisement, computed as here- inafter provided, shall not exceed one hundred square feet the rate per square foot shall be the tax unit. If such area is greater than one hundred square feet, but does not exceed two hundred square feet, the rate shall be twice such tax unit. If such area -is greater than two hundred square feet, but does not exceed three hundred square feet, the rate shall be three times such tax unit; and the rate shall progress in like manner for each additional one hundred square feet of superficial area of such advertisement. "4. If no part of the advertisement shall be more than ten feet above the curb level the rate per square foot shall be the tax unit or multiple thereof computed according to the last preceding paragraph. If any part of the advertisement is more than ten feet above the curb level but not more than twenty feet the rate shall be twice such tax unit or multiple thereof ; if more than twenty feet but not more than thirty feet the rate shall be three times such tax unit or multiple thereof ; and the rate shall progress in like manner for each additional ten feet in height above the curb level to or at which the highest part of the advertisement shall be erected or shall occupy; and the rate to be paid for the whole adver- tisement shall be the highest rate to which any part of the advertisement is subject. 418 THE LAW OF CITY PLANNING AND ZONING board ; 84 thus making their location in such neighborhoods de- pendent upon the consent of such owners, as in the case of saloons, etc. Still more important is the fact that outdoor advertising, which cannot be legally regulated anywhere (ex- cept, to some extent in Massachusetts by Constitutional Amendment 65 ) because it is ugly, can, under zoning regula- tions, be altogether excluded from residential districts because it is out of place. This may be done 66 by passing a special ordinance zoning a city as to advertising, or under a general building zone ordinance regulating the construction and use of structures of all kinds; for advertising structures are business structures, excluded from residential neighborhoods as such, without being otherwise mentioned ; and the New York regu- lation, and others which, like it, do not specifically mention "5. Every advertisement which is illuminated at night by lights attached or appurtenant thereto, but not self -illuminating signs on skeleton frames in which the picture or device is itself made with lights, shall pay double the rate as computed according to the last two preceding paragraphs. "6. The tax unit per annum of advertisements which are parts of or erected or displayed in or upon a station or structure of a subway, elevated or other rapid transit road, street railroad or railroad shall be, for each square foot of surface of such advertisement, computed as hereinafter provided, as follows : In cities having a population of 1,000,000 or over, one dollar ; in other cities of the first class, fifty cents ; in cities of the second class, twenty-five cents; and in other places ten cents. If the superficial area of such an advertisement, computed as hereinafter provided, shall exceed ten square feet the rate shall be doubled; if it exceed twenty square feet the rate shall be trebled; and the rate for the whole surface shall progress in like manner for each additional ten square feet of surface of the advertisement. "7. Where a single advertising structure shall have more than one surface or plane of display, all surfaces or planes of display shall be treated as one surface which are visible from any one point in a street or other public place, for the purpose of fixing the area of such sign." Another bill, prepared by Messrs. Heydecker and Pleydell, and referred to in the Report of the New York Committee on New Sources of Revenue, was published in the New York "City Record" for January 24, 1913, and subsequently reprinted in pamphlet form. **Cusack Co. v. Chicago, 267 111. 344, affirmed 242 U. S. 526 (1917). The decision cites the ordinance. Similar ordinances have been passed in other cities ; see for instance the Cincinnati ordinance, No. 25 1919, passed January 28, and the Toledo ordinance, No. 1839, passed May 17, 1920. "See p. 395, note 22. **As in Los Angeles; see ordinance No. 38, 315, N. S., approved June 25, 1918. The ordinance is reprinted in the report of the American Scenic and Historic Preservation Society for 1919, p. 187. See also the San Francisco ordinance (No. 4059, N. S.) passed Feb. 16, 1917. PLANNING FOR THE PROMOTION OF BEAUTY 419 billboards or outdoor advertising in any way, have been so interpreted by officials acting under them. 67 Later ordinances do, in some cases, 68 specifically mention such structures, and class them as business structures. 69 Outdoor Advertising in France. In our efforts to curb the excesses of outdoor advertising on private property exposed to public view, we may gain encouragement and instruction 67 Roof signs are subject to the height and setback restrictions of the building zone resolution ; Board of Standards and Appeals, New York City, Bulletin of Oct. n, 1916, and Rules, 1920, p. 45. 88 As for instance that for Lakewood, Ohio. 69 An indirect method by which to a considerable extent, advertising on the street walls of buildings in cities can legally be regulated on aesthetic grounds, has been suggested in the report of the Mayor's Bill- board Advertising Commission of New York (printed August i, 1913, reprinted with a few additions July, 1915; see p. 42 of that report). City streets are held by cities in trust for street purposes. Cities may grant abutters rights in the streets (by revocable license only) or refrain from granting them as they see fit. Universally cities do allow encroachments, such as projecting steps, cornices, ornamental columns, balconies, etc. As the city may withhold this privilege, it may attach conditions to it. This is the law in other cases (People v. Rosenheimer, 209 N. Y. 115, 1913; Lewis Publishing Co. v. Morgan, 229 U. S. 288 (1913), People ex rel. Beinert v. Miller, 188 Appellate Division (N. Y.) 113 (1919), up- holding an order of the Board of Appeals of New York City, in their discretion allowing a stable to be erected with one wall on a residential street, on condition that there was no opening in that wall) and would undoubtedly be so in this one. The report accordingly recommends that the privilege of encroaching to any extent, in any case, on the public highways be made conditional upon the observance of such regulations on advertising upon the building encroaching, as the city sees fit to make. "Few owners," . . . the report rightly observes, "are likely to surrender lightly their present privilege of extending to some degree beyond the building line." In this connection it is interesting to note that it is on the principle here invoked that the Board of Appeals, in granting excep- tions to the zoning resolution in New York City, constantly requires the petitioner to agree to construct his building in ways which improve its appearance and make it more acceptable to neighbors for this reason ; but being imposed for aesthetic reasons, would not, as independent pro- visions, be valid. See also the statutes of New Jersey for 1895 (ch. 28, P. L., p. 88) and 1898 (ch. 191, P. L. 439) in which the state, owning lands under navigable water, and granting them to such parties and on such terms as it sees fit, directs its agents not to part with such lands in ways which will deface the Palisades of the Hudson River. In 1922 the statute was further amended (P. L. 1922, p. 159, ch. 87) by adding a definition of "the Palisades." See also in this connection Oppenheim Apparel Corp. v. Cruise, and three other cases reported in the New York Law Journal, March 2, 1922 (p. 1914) sustaining a New York City ordinance prohibiting certain "illuminated signs" on certain streets. Such signs project beyond the property line (Ordinances, ch. 23, art. 16, sec. 215, par. 3) and a careful reading of the decision shows that it was based upon that fact. 420 THE LAW OF CITY PLANNING AND ZONING from foreign experience. France has never attempted to pro- hibit signs and posters in all parts of her cities. Disfigurement not exceeded in all the world, one is inclined to think, may be seen in many places within the limits of any of her cities, not excluding Paris, the most beautiful of them all. Instead she forbids all advertising on 70 or within a certain distance of structures and natural sites 71 of historical and artistic impor- tance listed under her classification statutes of 1887 and 1913, already referred to. 72 In certain localities, also, advertising is made a government monopoly under the statute giving the authorities power over publicity and the press, 73 the munici- palities erecting small tasteful kiosks and forbidding all posters elsewhere. In France, also, outdoor advertising is heavily taxed, the principle of a rate increasing progressively with the size of the advertisement, being adopted under a late statute. 74 Outdoor Advertising in England. In England the law on this subject was until recently like our own, and the situa- tion worse. Comfortable and convenient as they are, nothing could be uglier, for instance, than the London busses and the London underground stations, nothing more confusing than the mass of signs which make it difficult to discover the des- tination of a bus or the name of a station. In 1907 England passed her "Advertisements Regulation Act" 7B under which any local authority may make bye-laws : "(i) For the regulation and control of hoardings and similar structures used for the purpose of advertising when they exceed twelve feet in height; "(2) For regulating, restricting, or preventing the exhibition of advertisements in such places and in such manner, or by such "Passed Jan. 27, 1902; Bull, des lois, XII Ser., Bull. 2348, No. 41492, p. 1878. The title of the act is "Law Modifying Art. 16 of the Law of July 29, 1881, with regard to the Press." n Law of April 20. 1910. Bull des lois. Nouv. Ser.. Bull. 32. No. 1481 p. 1123. In Italy municipalities may prohibit advertisements that are on or near public buildings or monuments, or that deface the locality. Law of Public Security of 1889, Art 65. See Raccolta uffitiale dellc leggi e dei decrcti, Vol. 91, No. 5888 decies.) "Law of July 29, ifei. Bull, des lois, XII' Ser., Bull. 637, No. 10850. 14 Law of July 12, 1912. Bull, des lois, Nouv. Sir., No. 4336, p. 1964. "7 Edw. VII, ch. 27. PLANNING FOR THE PROMOTION OF BEAUTY 421 means, as to affect injuriously the amenities of a public park or pleasure promenade, or to disfigure the natural beauty of a land- scape." Bye-laws made under this act may apply either to the whole of the area of the local authority or to any specified part of it and must be confirmed by the Home Secretary who must con- sider the objections of those likely to be affected. The local authorities may also under sec. 19 of the Ancient Monuments Act, already quoted, 76 prohibit advertisements on or near any monument or structure of historic, traditional, artistic or archi- tectural public interest, as may be done in France. New "sky signs" on the roofs of buildings were also forbidden in Eng- land in 1907 77 as they had been previously in London. 78 Outdoor Advertising in Germany. In almost if not quite all the German States, there are now statutes under which outdoor advertising may be forbidden if it disfigures a struc- ture, street, square, or mars the beauty of a city or country view. Such statutes were to be found prior to 1907 79 but have become much more numerous and strict since about that time. 80 Outdoor advertising is also controlled under the various statutes with regard to publicity and the press. In many parts of Germany this advertising is a profitable government monop- oly conducted, as in France, with due regard to the appearance of public places. The aesthetic regulation of private property exposed to 76 P- 399 above. " Public Health Acts Amendment Act, 1907 (7 Edward VII, ch. 53), sec. 91. 78 See Cubitt, Building in London, 1911, p. 180, citing the London Build- ing Act, 1894; 57 and 58 Viet. ch. 213, Part XII. 79 See, for instance, the Prussian statute of June 2, 1902 ; sec. 90 of the Saxon Building Ordinance of July i, 1900, as amended May 20, 1904. 80 Outdoor advertising is regulated under sec. 3 of the Prussian Statute of 1907, and sec. i of the Saxon Statute of 1909, already cited ; in Baden by virtue of the "Polizeistrafgesetzbuch" of October 31, 1863 (Reg. Bl. P- 439), sec. 130, as amended by the law of August 20, 1904 (Ges. u. V. O. Bl., p. 397) and ib. sec. 116, by virtue of which sees. 33-35 of the General Building Ordinance were issued ; in the Duchy of Anhalt, by virtue of sec. 64 of the Building Ordinance already cited above ; in Wiirttern- berg by virtue of art. 98, par. 3 of the Building Ordinance; in Bavaria by virtue of art. 22, b., par. n of the Polizeistrafgesetzbuch, as amended July 6, 1908; see note 3 in edition of Englert (Munich 1912, Beckh'sche Verlagsbuchhandlung) of the Building Ordinance for Bavaria, p. 183. 422 THE LAW OF CITY PLANNING AND ZONING public view is important because public beauty is both an asset and an amenity. This the citizen of continental Europe, where aesthetic considerations have long prevailed, fully recognizes. The Parisian knows that the beauty of his city attracts multi- tudes of tourists to it every year, to his net financial profit; and he also appreciates to the full its aesthetic charm, and will allow no one, with his consent, to deface it. Of the two mo- tives for his intense regard for the appearance of his city, who can doubt that the love of its beauty is the stronger ? However that may be, the general recognition of the worth of beauty is everywhere essential before popular support for provisions to secure it and preserve it can be obtained on any ground. Our only hope in this country of such a recognition is in the gradual increase in civic pride and taste. It is, therefore, encouraging to read in McQuillin's book on municipal corporations 81 that in the opinion of the writer of this standard work for the prac- tical lawyer: "It is certain that much of the legislation [in the United States] of recent date, particularly during the past two decades, has been induced largely by aesthetic and artistic considerations, and this desire to render the urban centers more attractive has found a firm lodgment in the popular mind. It is destined to increase with the years, and in the development of the law in this respect courts will be inclined to give a broader interpretation to such regulations, and finally sanction restrictions imposed solely to advance materially attractiveness and artistic beauty." Note F Note /. THE FRENCH LAW FOR THE PROTECTION OF PLACES OF NATURAL BEAUTY* ART. i. In each department there shall be formed a commission with relation to places of natural beauty. This commission shall be composed of the prefect* (four other officials and five laymen distinguished in art, science and letters). ART. 2. This commission shall make a list of lands the preserva- * Summarized. * Sec 929. "Passed April 21, 1906; to be found in Bulletin des lois, 1906, XII* Se>. Bull. 2736, p. 735 (No. 47713). PLANNING FOR THE PROMOTION OF BEAUTY 423 tion of which on account of their artistic or picturesque character would be of general interest. ART. 3. The owners of the lands designated by the commission shall be asked to agree not to destroy or change the condition of these places without the special authority of the commission and the consent of the Minister of Public Instruction and Fine Arts. If this agreement is made, the property will be classified by de- cree of the Minister of Public Education and Fine Arts. If the owner refuses to make this agreement, the commission shall notify the department and the commune within which the prop- erty is situated. Declassification may be effectuated by the same method and under the same conditions as classification. ART. 4. The prefect on behalf of the department, or the mayor on behalf of the commune, may under the law of May 3, 1841, ex- propriate the properties designated by the commission as susceptible of classification. ART. 5. After the establishment of the servitude 83 of classifica- tion every change of the locality without the authority mentioned in art. 3, shall be punished by a fine of from one hundred francs (100 f) to three thousand francs (3000 f). Article 463 of the Penal Code is applicable. The prosecution shall be made on the complaint of the commission. ART. 6. This law shall apply to Algeria. No. 2. THE FRENCH LAW FOR THE PROTECTION OF PLACES AND OBJECTS OF HISTORIC AND ARTISTIC INTEREST** CHAPTER I REAL PROPERTIES 8 * ART. i. Real properties, the conservation of which possesses, from the point of view of history or of art, a public interest, are classified as historic monuments in whole or in part in the care of 83 Known in our law as "easement." 84 Entitled "Law with Regard to Historic Monuments" ; passed Decem- ber 31, 1913, superseding former laws; to be found in the Bulletin des his for 1913, Bull. 120, p. 3416 (No. 6459). The translation is that of the American Scenic and Historic Preservation Society in its report for 1914, p. 306. 85 The French word thus rendered is "immeubles." It means literally things which cannot be transported and includes lands and buildings which in their nature are immovable. In a general way it means real estate as distinguished from "meubles," movables, or personal property. But on account of the awkwardness of using the words "real estate" or "real estates" in such expressions as "the destruction, pulling down, mutilation, injury or removal of a classified real estate" (see art. 34), we have used instead the words "real property" or the word "property" 424 THE LAW OF CITY PLANNING AND ZONING the Minister of Fine Arts according to the provisions established by the articles following. Included among the real properties susceptible of being classified according to the terms of the present law are megalithic monuments, prehistoric stations or deposits and real property the classification of which is necessary to isolate, separate or make safe a property classified or proposed for classification. From the day when the Administration of Fine Arts gives notice to the proprietor of his proposition for classification, all the effects of classification apply in full force to the property. They cease to apply if the decision to classify is not reached within six months from this notification. Every order or decree which shall pronounce a classification after the promulgation of the present law shall be transcribed, under the direction of the Administration of Fine Arts, to the Bureau of Mortgages of the locality of the classified property. This tran- scription shall not be subject to any collection or profit of the Treasurer. ART. 2. There shall be considered as regularly classified, after the promulgation of the present law, 1st, the properties inscribed in the general list of classified monuments published officially in 1900 by the Direction of Fine Arts ; 2nd, the properties, whether com- prised or not in this list, which have been made the object of orders or decrees of classification conformably to the terms of the law of March 30, 1887. Within a period of three months the list of properties considered as classified before the promulgation of the present law shall be pub- lished in the Official Journal. There shall be drawn up, for each of said properties, an extract from the list, reproducing all that which concerns it; this extract shall be transcribed to the Bureau of Mort- gages of the locality of the property, under the direction of the Ad- ministration of Fine Arts. This transcript shall not be subject to any collection or profit of the Treasurer. The list of classified properties shall be kept open; and re-edited at least every ten years. There shall be drawn up, furthermore, within a period of three years, a supplementary inventory of all buildings or parts of buildings alone in this translation. While the significance of "immtublf" is fre- quently that of "building." yet the word "batimtnt" does not occur in the law and the word "edifice" only two or three times. In those cases, and those only, we have used the word "building." It should be under- stood, therefore, that the word "property" in this translation means im- movable property or real estate. There is also in French an "iinmrnhlf fictif or fictitious real estate which consists of a movable object which has become affixed to, and therefore a part of, real property. It is called "immcublc par destination," This we have rendered as "fixture." (See art. 14.) PLANNING FOR THE PROMOTION OF BEAUTY 425 public or private which, while not justifying a demand for immediate classification, possess nevertheless an archaeological interest sufficient to render desirable their preservation. Inscription in this list shall be notified to the proprietors and shall impose upon them the obliga- tion not to proceed with any alteration of the inscribed property without having notified the prefectoral authority of their intention five days in advance. ART. 3. Property belonging to the State is classified by order of the Minister of Fine Arts, in case of accord with the Minister under whose authority the said property is placed. In the contrary case, the classification is pronounced by a decree in Council of State. ART. 4. Property belonging to a department, to a commune or to a public establishment is classified by an order of the Minister of Fine Arts, if it has the consent of the proprietor and the approval of the Minister under the authority of whom it is placed. In case of disagreement, the classification is pronounced by an order in Council of State. ART. 5. Property belonging to any person other than those enumerated in articles 3 and 4 is classified by order of the Minister of Fine Arts, if the proprietor consents. The order determines the conditions of classification. If there is a controversy about the in- terpretation or execution of this act, it is settled by the Minister of Fine Arts, with recourse to the Council of State established for litiga- tions. In default of the consent of the proprietor, the classification is pronounced by the Council of State. The classification may be ground for the payment of an indemnity proportionate to the injury which may result to the proprietor from the application of the limita- tion of classification established by the present paragraph. The claim must be presented within six months from the date of the noti- fication of the decree of classification; this act will inform the pro- prietor of his eventual right to an indemnity. Litigations relative to the indemnity are adjudged in first instance by the Justice of the Peace of the canton. If there is an appraisal, there shall be ap- pointed but one expert. If the amount of the claim exceed 300 francs, there shall be ground for appeal to the civil tribunal. ART. 6. The Minister of Fine Arts, in conforming to the pro- visions of the law of May 3, 1841, may always prosecute in the name of the State the expropriation of a property already classified or proposed for classification by reason of the public interest which it possesses from the point of view of history or art. The departments and the communes have the same power. The same power is open to them with respect to properties the acquisition of which is necessary in order to isolate, separate or make safe a property classified or proposed for classification. 426 THE LAW OF CITY PLANNING AND ZONING In these various cases, the public use is declared by a decree in Council of State. ART. 7. From the day when the Administration of Fine Arts notifies the proprietor of an unclassified property of his intention to prosecute the expropriation, all the effects of classification apply with full force to the said property. They cease to apply if the declaration of public use does not occur within six months of this notification. When the public use has been declared, the property may be classified without other formalities by an order of the Minister of Fine Arts. In default of an order of classification, it continues nevertheless provisionally subject to all the effects of classification, but this subjection ceases entirely if within three months from the declaration of public use the administration does not seek to obtain a judgment of expropriation. ART. 8. The effects of classification follow the classified prop- erty into whatever hands it passes. Whoever conveys a classified property is obliged to notify the purchaser of the existence of the classification. Every conveyance of a classified property must, within fifteen days from its date, be notified to the Minister of Fine Arts by the person who has consented to it. Classified property which belongs to the State, to a department, to a commune or to a public establishment cannot be sold except after the Minister of Fine Arts has been requested to present his observa- tions; he must present them within a period of 15 days after notifica- tion. The Minister may, within the period of five years, declare null a conveyance consented to without the observance of this formality. ART. 9. Classified property shall not be destroyed or removed, even in part, nor be the object of a work of restoration, repair or any change whatever, if the Minister of Fine Arts has not given his consent. The works authorized by the Minister are executed under the surveillance of his administration. The Minister of Fine Arts may always execute under the direc- tion of his administration and at the expense of the State, with the co-operation of the parties interested, the works of repair or main- tenance which are judged indispensable for the conservation of classified monuments not belonging to the State. ART. 10. To ensure the execution of urgent works of consoli- dation among classified properties, the Administration of Fine Arts, in default of friendly accord with the proprietors, may, if it is neces- sary, authorize the temporary occupation of these properties or neighboring properties. This occupation is ordained by a prefectoral order previously PLANNING FOR THE PROMOTION OF BEAUTY 427 notified to the proprietor, and its duration shall not in any case ex- ceed six months. In case of damage, it shall be ground for an indemnity which is regulated by the conditions provided by the law of December 29, 1892. ART. ii. No property classified or proposed for classification shall be included in an inquest 86 for the purpose of expropriation for public use except after the Minister of Fine Arts shall have been asked to present his observations. ART. 12. No new construction shall be added to a classified prop- erty without a special authorization of the Minister of Fine Arts. No one may acquire any right by prescription in a classified prop- erty. Easements" in classified properties which may cause injury to monuments are not permissible. No easement may be established by covenant in a classified prop- erty except with the consent of the Minister of Fine Arts. ART. 13. The total or partial declassification of a classified prop- erty is pronounced by a decree in Council of State, either on the proposal of the Minister of Fine Arts or at the request of the pro- prietor. The declassification is notified to the interested parties and transcribed to the Bureau of Mortgages in the locality of the property. CHAPTER II MOVABLE OBJECTS** ART. 14. Movable objects, whether properly called movables (meubles proprement dits) or fixtures (immeubles par destination) the conservation of which, from the point of view of history or art, possesses a public interest, may be classified by the direction of the Minister of Fine Arts. The effects of classification continue with respect to classified fix- tures which again become movable property so called. ART. 15. The classification of movable objects is pronounced by an order of the Minister of Fine Arts when the object belongs to the State, to a department, to a commune or to a public institution. It is notified of the interested parties. The classification becomes definitive if the Minister under whose jurisdiction the object is or the public body owning it has not ob- jected within a period of six months from the date of the notice M Public hearing. 17 "Servitudes." * "Objets mobUiers," or personal property, as distinguished from real estate. See note on page 423 preceding. 4a8 THE LAW OF CITY PLANNING AND ZONING which has been given them. In case of objection it shall be deter- mined by a decree in Council of State. Always, from the date of the notification, all the effects of classification are applied provision- ally and in full force to the object. ART. 16. Movable objects belonging to all persons other than those enumerated in the preceding article may be classified, with the consent of the proprietor, by an order of the Minister of Fine Arts. In default of the consent of the proprietor, the classification can- not be pronounced except by a special law. ART. 17. There shall be drawn up, under the direction of the Minister of Fine Arts, a general list of classified movable objects, arranged by departments. A copy of this list, kept open, shall be de- posited with the Minister of Fine Arts and the prefecture of each department. It shall be communicated under conditions determined by a regulation of public administration. ART. 18. All classified movable objects are imprescriptible. Classified objects belonging to the State are inalienable. Classified objects belonging to a department, commune, public institution or institution of public utility cannot be alienated except with the authorization of the Minister of Fine Arts and in the forms provided by the laws and regulations. Ownership therein cannot be transferred except to the State, to a public person or to an institu- tion of public utility. ART. 19. The effects of classification follow the object into what- ever hands it passes. Every individual who parts with a classified object is required to make known to the acquirer the existence of the classification. Every conveyance must, within fifteen days from the date of its accomplishment, be notified to the Minister of Fine Arts by the party who consents to it. ART. 20. An acquisition made in violation of article 18, second and third paragraphs, is null. Actions in nullification or in the prose- cution of a claim may be instituted at any time as well by the Minister of Fine Arts as by the original proprietor. They arc instituted with- out prejudice to any claims for damages which may be made either against the contracting parties collectively responsible or against the public officer who has given his consent to the alienation. When the illicit alienation has been consented to by a public person or an establishment of public utility, this action for damages is instituted by the Minister of Fine Arts in the name and to the profit of the State. The acquirer or sub-acquirer in good faith from whose hands the object is demanded has the right of reimbursement of his price of acquisition; if the claim is exercised by the Minister of Fine Arts, he shall have recourse against the original vender for the entire PLANNING FOR THE PROMOTION OF BEAUTY 429 amount of the indemnity which he has given to pay the purchaser or sub-purchaser. The provisions of the present article are applicable to objects lost or stolen. ART. 21. The exportation of classified objects from France is prohibited. ART. 22. Classified objects may not be altered, repaired or re- stored without the permission of the Minister of Fine Arts nor with- out the surveillance of his administration. ART. 23. There shall be an examination of classified objects by the Administration of Fine Arts at least every five years. Furthermore, the proprietors or holders of these objects are obliged when so required to exhibit them to the accredited agents of the Minister of Fine Arts. ART. 24. The declassification of a classified object may be pro- nounced by the Minister of Fine Arts either of his own accord or on the demand of the proprietor. It is notified to the interested parties. CHAPTER III THE PROTECTION AND CONSERVATION OF HISTORIC MONUMENTS ART. 25. The different services of the State, departments, com- munes, public establishments or establishments of public utility are required to assure the protection and conservation of classified mov- able objects of which they are the proprietors or depositories or with the care of which they are charged, and to take the necessary measures to that effect. The expenses necessitated by these measures are, with the excep- tion of the cost of construction or reconstruction, local obligations of the department or the commune. In default of a department or a commune taking the measures considered necessary by the Minister of Fine Arts, it can be attended to by the decision of the same Minister of his own accord. By reason of the expenses sustained by them for the execution of these measures, the departments and communes may be authorized to establish a visitation tax the amount of which shall be fixed by the Prefect after approval by .the Minister of Fine Arts. ART. 26. When the Administration of Fine Arts considers that the conservation or the security of a classified object belonging to a department, commune, or public establishment is in peril, and when the corporate owner, depository or party responsible for its care (collectivite proprietaire, affectataire ou depositaire) either does not wish or is not able to take immediately the measures judged neces- sary by the Administration to remedy this state of affairs, the Minis- ter of Fine Arts may order immediately at the expense of his admin- 430 THE LAW OF CITY PLANNING AND ZONING istration the conservative measures, and also, in case of necessity, the provisional transfer of the object to a cathedral treasurer, if it relates to religion, and, if it does not, to a museum or other public place, national, departmental or communal, offering the desired guar- antees of security, and as far as possible situated in the vicinity of its original location. Within a period of three months from this provisional transfer, the conditions necessary for the protection and the conservation of the object in its original location shall be determined by a commission convened by the call of the Prefect, composed, ist, of the Prefect, President ex ofKcio; 2nd, of a representative of the Minister of Fine Arts; 3rd. of the departmental Archivist; 4th, of the Architect of Historic Monuments of the department; 5th, of a President or Secre- tary of a local historical, archaeological or artistic society, designated as such for a period of three years by order of the Minister of Fine Arts; 6th, of the Mayor of the commune; 7th, of the Counsellor- General of the canton. The corporate owner, depository or party responsible for its care (collectivite proprietaire, offectataire ou defiositaire) may at any time obtain the return of the object to its original location if it prove that the required conditions have been fulfilled. ART. 27. The guardians of classified properties (immeubles) or objects (objets) belonging to departments, communes or public estab- lishments shall be accepted and commissioned by the Prefect. The Prefect is required to make known his acceptance or his refusal to accept within the period of one month. If the public per- son interested fails to nominate a guardian acceptable to the Prefect, the latter may appoint one of his own motion. The amount of compensation of guardians must be approved by the Prefect. Guardians cannot be discharged except by the Prefect. They must be sworn. CHAPTER IV EXCAVATIONS AND DISCOVERIES ART. 28. When, in consequence of excavations, works or any act whatever, one has discovered monuments, ruins, inscriptions or objects interesting to archaeology, history or art, on lands belonging to the State, a department, a commune or a public establishment or establishment of public utility, the Mayor of the commune must assure the provisional conservation of the objects discovered and imme- diately notify the Prefect of the measures taken. The Prefect, as soon as possible, shall refer it to the Minister of Fine Arts who shall decide upon the definitive measures to be taken. If the discovery takes place on the land of an individual, the PLANNING FOR THE PROMOTION OF BEAUTY 431 Mayor shall give notice of it to the Prefect. On the report of the Prefect, the Minister may prosecute the expropriation of the said land in whole or in part on the ground of public use, after the forms of the law of May 3, 1841. CHAPTER v PENAL PROVISIONS ART. 29. Every violation of the provisions of paragraph 4 of article 2 (altering, without previous notice, a property inscribed in the supplementary inventory), paragraphs 2 and 3 of article 8 (alienation of aclassified property), paragraphs 2 and 3 of article 19 (alienation of a classified movable object), and paragraph 2 of article 23 (exhibi- tion of classified movable objects) shall be punished by a fine of from 1 6 to 300 francs. ART. 30. Every violation of paragraph 3 of article i (effects of the proposition for the classification of a property), article 7 (effect of the notification of a demand for expropriation), paragraphs i and 2 of article 9 (alteration of a classified property), article 12 (new constructions, easements), or of article 22 (alteration of a classified movable object), of the present law, shall be punished by a fine of from 16 to 1500 francs without prejudice of an action for damages which may be instituted against those who shall have ordered the works executed or the measures taken in violation of said articles. ART. 31. Whoever shall have alienated, knowingly acquired or exported a classified movable object in violation of article 18 or article 21 of the present law shall be punished by a fine of from 100 to 10,000 francs and an imprisonment of from six days to three months, or by only one of these two punishments, without prejudice of actions for damages mentioned in article 20, paragraph I. ART. 32. Whoever shall have intentionally destroyed, pulled down, mutilated or injured a property or a classified movable object shall be punished by the penalties provided by article 257 of the Penal Code without prejudice of any damage-interests. ART. 33. The violations mentioned in the four articles preceding shall be prosecuted at the suit of the Minister of Fine Arts. They may be established by proces-verbaux drawn up by the conservators or the guardians of classified properties or movable objects, duly sworn to that effect. ART. 34. Every conservator or guardian who, in consequence of grave negligence, shall have permitted the destruction, pulling down, mutilation, injury or removal, either of a classified property or mov- able object, shall be punished by an imprisonment of from eight days to three months and a fine of from 16 to 300 francs or by only one of these penalties. 432 THE LAW OF CITY PLANNING AND ZONING ART. 35. Article 463 of the Penal Code is applicable in the cases provided in the present chapter. CHAPTER VI VARIOUS PROVISIONS ART. 36. The present law may be extended to Algeria and the colonies by regulations of public administration, which shall deter- mine under what conditions and after what manner they shall be applicable. Upon the promulgation of the regulation concerning Algeria, article 16 of the law of March 30, 1887, shall continue applicable to that territory. ART. 37. A regulation of public administration shall determine the details of application of the present law. This regulation shall be made after advice of the Commission of Historic Monuments. This Commission shall be equally consulted by the Minister of Fine Arts concerning all decisions made in execution of the present law. ART. 38. The Provisions of the present law are applicable to all properties and movable objects regularly classified before its promul- gation. ART. 39. The laws of March 30, 1887, July 19, 1909, and Feb- ruary 16, 1912, concerning the Conservation of Monuments and Ob- jects of Art having an Historic and Artistic Interest, paragraphs 4 and 5 of article 17 of thetlaw of December 9, 1905, concerning the Separation of Church and State, and generally all provisions con- trary to the present law, are repealed. No. 3. THE ENGLISH ANCIENT MONUMENTS CONSOLIDATION AND AMENDMENT ACT, 1913* PART I ACQUISITION OF ANCIENT MONUMENTS I. (i) The Commissioners of Works may, with the consent of the Treasury, purchase by agreement, out of any moneys which may be provided by Parliament for that purpose, any monument which ap- pears to them to be an ancient monument within the meaning of this Act. (a) Any local authority within the meaning of this Act may. if they think fit, purchase by agreement any monument situate in or "3 and 4 Geo. V, ch. 32. PLANNING FOR THE PROMOTION OF BEAUTY 433 in the vicinity of their area, which appears to them to be an ancient monument within the meaning of this Act. (3) For the purpose of any such purchase, the Lands Clauses Acts 80 shall be incorporated with this Act (with the exception of the provisions which relate to the purchase and taking of land otherwise than by agreement), and, in construing those Acts for the purposes of this Act, this Act shall be deemed to be the special Act, and the Commissioners of Works or local authority, as the case may be, shall be deemed to be the promoters of the undertaking. 2. Any person may, by deed or will, give, devise, or bequeath to the Commissioners of Works or to a local authority all such estate or interest in any ancient monument as he may be seized or possessed of, and the Commissioners or authority may accept any such gift, devise or bequest if they think it expedient to do so. PART II GUARDIANSHIP OF ANCIENT MONUMENTS 3. (i) The owner of any monument which appears to the Com- missioners of Works to be an ancient monument within the meaning of this Act may, with the consent of the Commissioners, constitute them by deed guardians of the monument. (2) The owner of any monument which appears to a local au- thority to be an ancient monument within the meaning of this Act, and is situate in or in the vicinity of their area may, with the con- sent of the local authority, constitute them by deed guardians of the monument: Provided that the Commissioners of Works or the local authority, as the case may be, shall not consent to become guardians of any structure which is occupied as a dwelling-house by any person other than a person employed as the caretaker thereof or his family. *(3)~(4) Entailed property, etc. (5) Except as provided by this Act, the owner of a monument, of which the Commissioners of Works or a local authority become guardians under this Act, shall have the same right and title to, and estate and interest in, the monument in all respects as if the Com- missioners or local authority, as the case may be, had not become guardians thereof. 4. (i) Where the Commissioners of Works or a local authority become guardians of any ancient monument under this Act, they shall, until they receive notice in writing to the contrary from any owner of the monument who is not bound by the deed constituting Power to con- stitute Commis- sioners of Works guardians of ancienl monu- ments. * Summarized. 90 See p. 71. 434 THE LAW OF CITY PLANNING AND ZONING them guardians of the monument, maintain the monument, and shall, with a view to the maintenance of the monument, have access by themselves, their inspectors, agents or workmen to the monument for the purpose of inspecting it, and of bringing such materials and doing such acts and things as may be required for the maintenance thereof. (2) All expenses incurred by the Commissioners of Works in maintaining the monument shall, subject to the approval of the Treasury, be defrayed out of moneys provided by Parliament. (3) The expression "maintenance" in this section includes the fencing, repairing, and covering in, of a monument and the doing of any other act or thing which may be required for the purpose of repairing the monument or protecting it from decay or injury, and the expression "maintain" shall be construed accordingly. Detcrip- 5- (i) The following persons shall be deemed to be owners of owner. for monuments for the purposes of this Part of this Act, that is to say: purpowe (o) Any person entitled for an estate in fee to the possession or receipt of the rents and profits of any freehold or copy- hold land; (&) Any person absolutely entitled in possession to a beneficial lease of land of which not less than forty-five years are unexpired, but no lease shall be deemed to be a beneficial lease within the meaning of this section if the rent reserved thereby exceeds one third part of the full annual value of the land demised by the lease; (c) Any person entitled under any existing or future settlement for the term of his own life, or the life of any other per- son, to the possession or receipt of the rents and profits of land of any tenure, in which the estate for the time being subject to the trusts of the settlement is an estate for lives or years renewable for ever, or an estate renewable for a term of not less than sixty years, or an estate for a terra of years of which not less than sixty are unexpired, or any greater estate; (d) Any body corporate, any corporation sole, any trustees for charities, and any commissioners or trustees for ecclesiastical, collegiate, or other public purposes, entitled, in the case of freehold or copyhold land, in fee, and in the case of lease- hold land, to a lease for an unexpired term of not less than sixty years. (2) Where any person who, by virtue of this section, is to be deemed the owner of a monument is a minor, or of unsound mind, the guardian or committee, or, in Scotland, the tutor or curator, as the case may be, of that person shall be the owner for the purposes of this Part of this Act, and, where such owner is a married woman, she shall have power to execute a deed constituting the Commis- PLANNING FOR THE PROMOTION OF BEAUTY 435 sioners of Works or a local authority guardians notwithstanding that she is restrained from anticipation. (3) In this section the expression "entitled" means beneficially entitled ; and the expression "land" means land which is the site of an ancient monument, whether the land is or is not subject to incum- brances. PART III PROTECTION OF ANCIENT MONUMENTS 6. (i) If the Ancient Monuments Board constituted under this Act report to the Commissioners of Works that any monument is in danger of destruction or removal or damage from neglect or in- judicious treatment, and that the preservation of the monument is of national importance, the Commissioners may, if they think fit, and if it appears to them that the monument is an ancient monument within the meaning of this Act, make an order (in this Act referred to as a Preservation Order) placing the monument under the protec- tion of the Commissioners: Provided that, if in any case the Commissioners of Works con- sider that the making of such an order is a matter of immediate urgency, the Commissioners may make the order without receiving any such report as aforesaid. (2) Where the Ancient Monuments Board have reason to believe that any monument is in danger as aforesaid, and that the preserva- tion of the monument is of national importance, they may themselves, or by any person authorised in writing by them, enter at any reason- able time upon any premises for the purpose of enabling them to determine by inspection of the monument whether it is proper for them to report to the Commissioners: Provided that, unless the Ancient Monuments Board consider that the inspection of the monument is a matter of immediate urgency, they shall give not less than seven clear days' notice to the occupier of the premises of their intention so to enter upon them. (3) A Preservation Order shall have effect for a period of eighteen months after the date on which it is made, but on the ex- piration of that period shall cease to have effect unless it has been confirmed by Parliament; and, if a Preservation Order so made is not confirmed by Parliament within a period of eighteen months, no further Preservation Order shall be made with reference to the same monument until after the expiration of five years from the date on which the Order which has ceased to have effect was made. (4) The Commissioners of Works may bring in a Bill for con- firming any Preservation Order, and if, while the Bill confirming any such Order is pending in either House of Parliament, a petition Orders placing ancient monu- ments under pro- tection of Commis- sioners of Works. 436 THE LAW OF CITY PLANNING AND ZONING a8 and jo Viet. c. 27. Effect of Preservm- tion Order. String for buildings used as dwelling- bouse. is presented against the Order, the Bill, so far as it relates to the order, may be referred to a select committee or, if the two Houses of Parliament think fit so to order, to a joint committee of those Houses, and the petitioner shall be allowed to appear and oppose as in the case of a private Bill. (5) Where a Committee on a Bill for confirming any Preserva- tion Order report by a majority of the members for the time being present and voting that a petitioner against the Bill has been unrea- sonably subjected to expense, or has been subjected to an unreason- able amount of expense in defending his rights proposed to be inter- fered with by the Bill, they may award cost against the Commis- sioners of Works and any costs under this section may be taxed and recovered in accordance with the Parliamentary Costs Act, 1865. 7. (i) While a Preservation Order is in force, the monument to which the Order relates shall not be demolished or removed, nor shall any additions or alterations be made thereto or any work carried out in connection therewith except with the written consent of the Com- missioners of Works. (2) If, while a Preservation Order is in force, it appears to the Commissioners of Works that owing to the neglect of the owner of the monument the monument is liable to fall into decay, the Com- missioners may, with the consent of the Treasury, make an order constituting themselves guardians of the monument so long as the Preservation Order is in force, and in that case the provisions of this Act shall, during that period, take effect as if the Commissioners had been constituted guardians by virtue of a deed executed by the owner. Any order made under this subsection may be revoked at any time by the Commissioners. 8. This Part of this Act shall not apply to any structure which ap- pears to the Commissioners of Works to be occupied as a dwelling- house (otherwise than by a person employed as the caretaker thereof or his family). PART IV Power to receive voluntary contribu- tions for mainte- nance of .1 . ir n t GENERAL Supplemental Provisions as to Preservation of Monuments 9. The Commissioners of Works or any local authority may re- ceive voluntary contributions toward the cost of the maintenance and preservation of any monument of which they may become the owners or guardians under the provisions of this Act, and may enter into any agreement with the owner of any such monument or with any other person as to the maintenance and preservation of the monu- ment and the cost thereof. PLANNING FOR THE PROMOTION OF BEAUTY 437 10. The Commissioners of Works and any local authority may, in respect of any monument of which they are the owners or guardians (but where they are guardians only with consent of the owner of the monument), enter into and carry into effect any agreements for the transfer from the Commissioners to the local authority, or from the local authority to the Commissioners, or from the local authority to another local authority, of the monument, or of any estate or inter- est therein, or of the guardianship thereof. ii. Any local authority may, if they think fit, at the request of the owner, undertake or contribute towards the cost of preserving, main- taining, and managing, any monument which appears to them to be an ancient monument and is situate in, or in the vicinity of, their area, whether they have purchased the monument or become guardians of it under this Act or not : Provided that the plans and specification of all works, other than those of immediate necessity, to be under- taken or contributed by the local authority shall be submitted to the Ancient Monuments Board, and the Board, if they object to any plans or specifications, shall report the matter to the Commissioner of Works, whose decision shall be final. 12. (i) The Commissioners of Works shall from time to time cause to be prepared and published a list containing (a) such monuments as are reported by the Ancient Monuments Board as being monuments the preservation of which is of national importance ; and (6) such other monuments as the Commissioners think ought to be included in the list ; and the Commissioners shall, when they propose to include a monu- ment in the list, inform the owner of the monument of their inten- tion and of the penalties which may be incurred by a person guilty of an offence under the next succeeding subsection. ' (2) Where the owner of any ancient monument which is included in any such list of monuments as aforesaid proposes to demolish or remove in whole or in part, structurally alter, or make additions to, the monument, he shall forthwith give notice of his intention to the Commissioners of Works, and shall not, except in the case of urgent necessity, commence any work of demolition, removal, alteration, or addition for a period of one month after having given such notice; and any person guilty of a contravention or of non-compliance with this provision shall be liable on summary conviction to a fine not exceeding one hundred pounds, or to imprisonment for a term not exceeding three months, or to both. (3) This section shall not apply to any structure which is occupied as a dwelling-house by any person other than a person employed as the caretaker thereof or his family. Transfer of ancient monu- ments be- tween local authorities and Com- missioners of Works. General powers of local au- thorities with re- spect to preserva- tion of ancient monu- ments. Notice to be given by owners of certain monu- ments. 438 THE LAW OF CITY PLANNING AND ZONING Public access to ancient monu- ments. Penalty for injur- ing ancient monu- ment* Public Access to Monuments and Penalty for Injuring Monumen 13. The public shall have access to any monument of which tl Commissioners of Works or a local authority are the owners < guardians at such times and under such regulations as may from tin to time be prescribed by the Commissioners or local authority: Provided that (a) this section shall not apply to any monument of which tf Commissioners or a local authority have been constitute the guardians before the commencement of this Act, exce] in cases where the consent of the owner has been given 1 the public having access to the monument either by the dee constituting the Commissioners or local authority the guarc ians or otherwise; and (&) Where the deed constituting the Commissioners or loc authority the guardians of the monument, in the case of deed executed after the commencement of this Act, so pr< vides, the public shall not have access to the monumei without the consent of the owner of the monument. 14. (i) If any person injures or defaces any monument of whic the Commissioners of Works or a local authority are the owners t guardians, or which is the subject of a Preservation Order, or 1 which this section applies by virtue of an Order in Council mac thereunder, that person shall, on summary conviction, be liable eitht to a fine not exceeding five pounds, and, in addition to the fine, 1 pay such sums as the court by whom he is tried think just for th purpose of repairing any damages caused by him, or to imprisor ment with or without hard labour for a term not exceeding or month. (2) In England, any person convicted of an offence under th Act may appeal to quarter sessions in manner provided by the Sun mary Jurisdiction Acts. (3) The owner of an ancient monument shall not be punishabl under this section in respect of any act which he may do to th monument, except in cases where the Commissioners of Works c the local authority have been constituted guardians of the monumen and in that case he may be dealt with as if he were not the owne (4) His Majesty may, by Order in Council, declare that th section shall apply to any monument specified in the Order whic appears to His Majesty to be an ancient monument within the mear ing of the Act, and on any such Order being made this section sha apply accordingly. PLANNING FOR THE PROMOTION OF BEAUTY 439 Ancient Monuments Board and Inspectors 15. (i) The Commissioners of Works shall constitute an Advis- ory Board under the name of the Ancient Monuments Board, consist- ing of members representing the bodies named in the First Schedule to this Act, and such other members as the Commissioners of Works may appoint; and may, if and when they think it desirable to do so, constitute separate advisory boards for Scotland and Wales, and, in such case, the obligation to appoint members representing the bodies named in the First Schedule of this Act shall, so far as those bodies are bodies whose activities are confined to England, Scotland, or Wales, be construed distributively. (2) His Majesty may, by Order in Council, alter the First Schedule to this Act. (3) The Ancient Monuments Board may, if so requested by the owner of an ancient monument, give advice, free of charge, except for out-of-pocket expenses, with reference to the treatment thereof. 16. (i) The Commissioners of Works, with the consent of the Treasury, shall appoint one or more inspectors of ancient monu- ments, and it shall be the duty of those inspectors to report to the Commissioners of Works on the condition of ancient monuments and on the best mode of preserving them. (2) There shall be paid, out of moneys provided by Parliament, to any inspectors so appointed, such remuneration and allowance for expenses as may be determined by the Treasury. 17. (i) The Commissioners of Works may, if they think fit, give advice with reference to the treatment of any ancient monument, and shall, as and when required, give that advice with reference to the treatment of any monument which is placed under their protection by virtue of a Preservation Order. (2) The Commissioners of Works may also, if in their opinion it is advisable, superintend any work in connection with any ancient monument if invited to do so by the owner, and shall superintend any such work, whether required to do so by the owner or not, in connection with any monument which is placed under their protection by virtue of a Preservation Order if in their opinion it is advisable. (3) Any such advice and superintendence shall be given free of charge, except that a charge may be made for out-of-pocket expenses in the case of monuments which are not placed under the protection of the Commissioners by virtue of a Preservation Order. Miscellaneous 18. Where it appears to the council of a borough or a district, which expression in this Act shall include the Common Council of the Ancient Monu- ments Board. Power of councils to make bye- laws regu- lating ad- vertise- ments. 7, Edw. 7. c. Incorpora- tion of Commis- sioners of Works for purposes of Act, ete Local au- thorities. Definition of ancient monu- ment. > * rm, 46 7J 440 City of London, that the erection of buildings of a style of architec- ture in harmony with other buildings of artistic merit existing in the locality is impeded in consequence of any byelaws with respect to new streets or buildings in force in the borough or district, the council may, with the consent of the Local Government Board, relax the byelaws so far as may be necessary to allow the erection of such buildings, pro- vided that the council is satisfied that such buildings can be erected with due regard to safety from fire and to sanitation: Provided also that no byelaws in force in the City of London shall be relaxed under this section such as are administered by the Common Council of the City of London. 19. The Advertisements Regulation Act, 1907,** shall be construed as if the powers of local authority, as defined by that Act, included a power to make byelaws prohibiting or restricting the display of advertisements or notices of such a nature or in such a manner as to be detrimental to the amenities of any ancient monument specified in the byelaw. Any power to make byelaws given by this section shall be in addition to, and not in derogation of, the powers to make byelaws given by the Advertisements Regulation Act, 1907, or by any other Act. 20. (i) For the purposes of this Act, the Commissioners of Works shall be a body corporate by that name and shall have per- petual succession and a common seal, and may acquire by gift, will or otherwise, and hold without license in mortmain, any land or estate or interest in land. (2) Any conveyance, appointment, devise or bequest of land or any estate or interest in land under this Act to the Commissioners of Works or a local authority shall not be deemed to be a convey- ance, appointment, devise or bequest to a charitable use within the meaning of the Acts relating to charitable uses. 21. (i) The council of every county and borough and the Com- mon Council of the City of London shall be a local authority within the meaning of this Act. * (2) Expenses of local authority under this Act, out of what public fund payable, etc. 22. In this Act the expression "monument" includes any structure or erection, other than ecclesiastical building which is for the time being used for ecclesiastical purposes; and the expression "ancient monument" includes any monument specified in the schedule to the Ancient Monuments Protection Act, 1882, and any other monuments or things winch, in the opinion of the Commissioners of Works, are of a like character, and any monument or part or remains of a monu- ment, the preservation of which is a matter of public interest by * Summarized. "See pp. 420, 441. PLANNING FOR THE PROMOTION OF BEAUTY 441 reason of the historic, architectural, traditional, artistic, or archaeo- logical interest attaching thereto, and the site of any such monument, or of any remains thereof; and any part of the adjoining land which may be required for the purpose of fencing, covering in, or other- wise preserving the monument from injury, and also includes the means of access thereto. * 23. (i) Reports, to whom made, etc. (2) Application to Scotland. * 24. Repeals. 25. (i) This Act may be cited as the Ancient Monuments Con- solidation and Amendment Act, 1913. (2) This Act shall not apply to Ireland. Repeal Short title and application. FIRST SCHEDULE The Royal Commission on Historic Monuments in England. The Royal Commission on Historic Monuments in Scotland. The Royal Commission on Historic Monuments in Wales. The Society of Antiquaries of London. The Society of Antiquaries of Scotland. The Royal Academy of Arts. The Royal Institute of British Architects. The Trustees of the British Museum. The Board of Education. No. 4. THE ENGLISH ADVERTISEMENTS REGULATION ACT, 1907** An Act to authorize Local Authorities to make Byelaws respecting the Exhibition of Advertisements. i. This Act may be cited as the Advertisements Regulation Act, 1907. 2. Any local authority may make byelaws (1) For the regulation and control of hoardings and similar structures used for the purpose of advertising when they exceed twelve feet in height : (2) For regulating, restricting, or preventing the exhibition of advertisements in such places and in such manner, or by such means, as to affect injuriously the amenities of a public park or pleasure promenade, or to disfigure the natural beauty of a landscape : Provided that a local authority in making byelaws under this section shall provide for the exemption from the operation of such byelaws * Summarized. " Referred to in sec. 15 of the act. W 7 Edward VII, ch. 27. Short title. Local au- thorities to have power to make bye- laws for regulation of adver- tisements. 442 THE LAW OF CITY PLANNING AND ZONING ByeUws to b con- firmed by Secretary of State. Expense* Power* of Act to be in addi- tion to any existing power*. of any hoardings and similar structures in use for advertising pi poses at the time of the making of the byelaws, and of any adverti ments exhibited at that time, for such period, not being less than f years from that time, as they may think fit. 3. (i) A byelaw made under this Act shall not have a effect until confirmed by the Secretary of State, and shall not be confirmed until at least thirty days after the local authority have pi lished it in such manner as the Secretary of State may by general special order direct. (2) The Secretary of State shall, before confirming any byels consider any objections to it which may be addressed to him by p sons affected or likely to be affected thereby. (3) The Secretary of State may, before confirming any byels order that a local inquiry be held with respect to the byelaw or w respect to any objections thereto. The person holding any such quiry shall receive such remuneration as the Secretary of State rr determine, and that remuneration and the expenses of the local inqu shall be paid by the local authority making the byelaw. (4) Byelaws made under this Act may apply either to the wh area of the local authority, or to any specified part thereof. (5) Byelaws made by a county council shall not be of any foi or effect within any borough or urban district the council of whi is a local authority under this Act. (6) The production of a copy of any byelaw certified by a p< son purporting to be the clerk of the local authority to be a true cc shall, until the contrary is proved, be evidence of the byelaw and the due making thereof, and, if it is so stated in the certificate, of 1 byelaw having been duly confirmed. * 4. Expenses incurred by local authority in carrying act ii effect, out of what public fund paid, etc. 5. The powers and provisions of this Act shall be deemed to in addition to and not in derogation of any powers and provisions any local Act, and any powers of making byelaws under any gene Act and any such powers and provisions may be exercised a enforced in the same manner as if this Act had not been passed. * 6. Application to Scotland. * 7. Definition of "local authority." *8-io. Enforcement, application to Ireland, and penalties. * Summarized. PART VII CITY PLANNING ADMINISTRATION CHAPTER I. PLANNING ADMINISTRATION IN ITALY, SWEDEN AND GERMANY Importance of Administration. To the average citizen the only real test of 'a principle is whether it works or not. Logically this may not always be fair; the principle may be correct, the means of applying it, faulty. The average citizen will have none of such fine spun distinctions. To get his vote you must "show him," and the only way to accomplish it is to "do the job." Thus administration, important in all practical affairs, is especially so in matters like city planning, where political support for a new principle is necessary and success is dependent upon votes. If city planning, when introduced in any community, is badly administered and proves a failure, it will be a long time before that community, whatever methods of applying it be proposed, will give it a new trial. The previ- ous parts of this treatise have been taken up with the substance of city planning law; this last part is concerned with the no less important matter of its administration. Importance of Foreign Administration to Us. In the previous parts of this work, devoted to the presentation of the substance of city planning law in the United States, foreign legislation has been freely cited, and the same free use will be made of it in this last part concerned with its administration. To us in this country the study of foreign methods of city planning in connection with our own, is perhaps especially im- 443 444 THE LAW OF CITY PLANNING AND ZONING portant, both because city planning is much newer here than Europe and administrative methods are of slow growth, a because political administration is one of the things in wh we have been least successful. That we shall anywhere fi procedure ready made, which we can with advantage adopt, not probable. Administrative methods are in no small measi dependent on local conditions and the institutions of which tl form a part. The study of foreign institutions may, howev bring home to us the necessity, and even suggest the substan of amendments to our own; and what is perhaps even m< important in our country, where city planning legislation still too recent to be judged altogether by its results these f< eign institutions may give us a basis for passing at least a pi visional judgment on the aim and efficiency of our metho City planning is a science ; in its application to different loa ties it varies greatly, but everywhere the same principles h( true, everywhere the main aim of city planning is the same to bring about a unity in the construction of the given co munity; and city planning administration is successful in pi portion as it attains this aim. City Planning Law of Recent Growth. The knowled and practice of city planning goes back to the most ancic times; but city planning law is a recent growth. It is not ur construction by royal fiat or special act is superseded by cc struction in accordance with rules of general application, which procedure and the rights of all parties affected are fixe that planning law as now known can come into existence. The Italian Planning Law. Perhaps the first significa modern law attempting to deal with the various phases of ci planning is to be found in Italy. This law, passed in 1865, cc tains the four provisions most essential in a city planning la those for the preparation of the plan, for its adoption by t public authorities as the rule governing future construction, f its procection against the encroachments of the owners of t land planned, and for construction in due time, including t taking of the necessary land. The plan under the Italian la however, embraces only public streets and squares, leaving o all the other factors of city construction which are so essenti ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 445 to city unity and efficiency. Later legislation, however, au- thorizes zoning. Origin of Planning Legislation. Planning legislation in Italy is an outgrowth or special application of the law of con- demnation, or "expropriation" as it is called in the Roman law countries of continental Europe. In the expropriation of land a plan is required, which must be approved by an executive or legislative decree declaring the carrying out of the plan to be of public utility; and thereafter, pending the completion of the taking, the owner, although still in possession of the land and entitled to make any other use of it, is forbidden to do anything which will render that taking more expensive. The fact that the interval, in city planning expropriation, between the making of the plan and the taking is much longer than in other cases does not present the difficulties to them that it does to us. In Europe while^the-actual taking of property must in all cases be paid for, compensation for the infringement of property rights is left more to the conscience and good judgment of the legislature-Aa4v-as!jadih_tis r to the courts. Since, therefore, there is no provision in the city planning expropriation law for payment for this lessening of the former rights of the property owner, but on the contrary an express statement that no com- pensation is due, none can be claimed, nor can the law be chal- lenged on that account. 1 The Italian planning law is chapters VI and VII of the General Expropriation Law of June 25, 1865, 2 and, like other chapters in that law, is dependent upon provisions in other partsjof it. The statute has been amended from time to time, but in essentials it is the same as it was in 1865 when first passed. Regulation and Extension Plans. Under the Italian law, "building" plans are divided into "regulatory" plans i. e., plans of the lines of future streets and squares and the change in the lines of existing streets and squares in the present built-up city and "extension" plans, or plans of additions to that city. Communes with a population of 10,000 or over are authorized to make regulatory plans, and communes showing "See p. 13. 'No. 2359. 446 THE LAW OF CITY PLANNING AND ZONING the necessity of enlarging their built-up area are authorized make extension plans. These plans the communes must folk in future construction. Preparation and Adoption of Plan. The responsibili for the preparation of the plan rests upon the mayor, \vhc duty it is to present it to the communal council for adoptic Before acting on it the council must give all parties in inten an opportunity to be heard. The plan is then transmitted the council of state, with the opinions of various government and technical bodies on it and on the validity of any objectio to it. The plan goes into effect when approved by royal decn given on the advice of the council of state. The decree is declaration that the plan is of public utility. The plan, wh approved, remains in force for the period named in the decn not to exceed twenty-five years ; but this period may be extend by subsequent decree. The plan may be amended in the sar way as adopted. Effect of Plan on Private Property. On publication the decree the plan is binding upon the owners of private pro erty included in it, and all subsequent construction by the within the lines of streets and squares as indicated on the pi is forbidden on pain of demolition of the structure and fine, all other respects the lands continue to belong to their owne until the municipality begins proceedings actually to take the portions of them needed for the public works planned. I compensation is due the land owners except for the taking the land, when it occurs. In this connection the provision, another chapter of the expropriation law, should be noted, the effect that : Improvements After Notice of Plan. "Chapter IV, Art. 43. For structural and cultural improvemei no compensation will be made [when the property is actually take if, in view of the time when they were undertaken, or any oth circumstances, it is shown that they were made with the purpose obtaining a larger compensation; but the owner retains the right remove at his own expense the materials and any other propel which can be taken away without injury or prejudice to the work public utility which is to be executed." ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 447 Swedish Planning Law of 1874. On May 8, 1874, Sweden passed a planning law which, like the Italian law, pro- vided for the preparation, adoption, protection, and execution of a city plan, which, however, was little more than a street plan. This was superseded in some respects and in many others supplemented by a statute adopted August 31, 1907; and that statute is now incorporated as the first of the many chapters of the law of May 12, igij? Beginnings of Modern City Planning Law in Germany. The next country to pass legislation significant in the evolu- tion of modern city planning law and practice was Germany. This legislation is of importance in this connection chiefly for the care with which it has been developed in administration and detail; an importance much increased by the difference in the laws of the different states and the resulting increase in prece- dent and experience thus furnished. These laws date from the beginning of the rapid growth of German cities after the for- mation of the German Empire. 4 Changes in Law Since the War. Since the war the national, and most of the state, constitutions in Germany have been changed. In some cases these changes are radical. For instance, the new national constitution gives the central gov- ernment the power to lay down the principles to be observed by the states in their housing legislation. Prior to the enactment of these new fundamental laws the former governments had in a few cases adopted amendments to the planning law, but the new governments, as a rule, have been too busy with other matters to make new planning laws. In so far as the older leg- islation has been altered by either the old or the new govern- ments, these changes have been noted in this work. There is no reason to expect that the building and planning laws, with which the Germans were reasonably content, will be changed 'Slightly amended May 27, 1919; see also the government circulars, No. 496, of August i, 1919, and No. 684, of October 22, 1920. * For a brief but most significant review of the tendencies, meaning and effect of city planning law and practice in Germany from the earliest times to the present day, see Gemeinwohl und Sondernutzen im Stadtebau, by R. Baumeister, being Stadtebauliche Vortrdge, edited by Brix and Genzmer, Vol. VIII, No. IV, Ernest und Sohn, Berlin, 1918. 448 THE LAW OF CITY PLANNING AND ZONING more rapidly or fundamentally under the new governments thz they would have been under the old. In any event the existir law, useful to us less, perhaps, as a rule binding upon the Ge man people than as a body of precedent and experience, w remain worthy our careful study. Planning Jurisdiction of Empire Within States. Tl German Empire was a federal union of states in many respec like our own union. In general, city planning was a matter < state, as distinguished from Imperial, concern, and there fo under state jurisdiction. Manufacturing, however, was some respects an Imperial matter, and was regulated by -< Imperial Industrial Law. 5 This Imperial statute regulated tl building of various kinds of factories; but provided for its ov execution by state officials or local functionaries under state a thority, and allowed them to pass additional and more stringe and detailed laws and regulations, a permission of which tin made free use ; and thus building regulation and zoning are fact almost entirely matters of state and local law and practic Other city planning matters, over some of which it would see that the Empire might have exercised jurisdiction if it had se< fit, have in fact been left entirely to the separate states. In th study of city planning law in Germany, therefore, it is the la of the various states, and the local ordinances under ther which will be taken up, with only an occasional reference the constitution and laws of the nation. State Planning Jurisdiction. Each of the twenty-fr states of the former German Empire, in planning as in oth matters wholly or largely within state control, had the pow to pass practically such legislation as it saw fit. In fact the are in these planning laws and in the legal systems of whi< they form a part many important differences, but, as a resi of common history, language and environment and of the i fluence of the states upon one another, they are, in outline ai general principle, much the same. Local Self-Government and State Control. Throug out Germany, in planning as in other local matters, there is .re of local self-government. This is especially tri rdnunt/'; see p. 210, note I. ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 449 in the cities, where in local affairs the municipality has juris- diction unless deprived of it, instead of, as in this country, only when conferred. City government has its grave defects in Germany. Before the war, in many Prussian cities, under the so-called three class system now swept away, the electors were divided into three groups, each paying one-third of the municipal taxes and electing a third of the municipal council. By this system some years ago, when Essen was a city of about 350,000 inhabitants, one-third of its councilmen was elected by four voters and a second third by about five hundred. In Prussia and a number of other German states the law, now al- most universally changed in this respect, generally required that one-half of the council should be householders, the non- householding class being obliged to choose householders to rep- resent it. As a result it was often the state which, for reasons of its own, no doubt, urged municipal reform, in the interest of the more humble citizen, upon the reluctant city authorities. Nevertheless in city government Germany has probably been more successful than in any other part of the field. Here, too, the individual citizen has displayed an initiative and independ- ence not found in the conduct of state or national affairs. In Germany, however (and indeed in other European coun- tries, as will be seen later) neither local self-government nor state control have quite the same meaning as in this country. In the United States the state government assigns to local au- thorities certain powers which, until modified or withdrawn, they employ quite independently of the central government ; in Germany the state exercises a very considerable amount of supervision and control over most if not all local action. Local Self -Government and State Control in Planning. This interrelation of state and local authority is to be found in planning as in other matters. There are in Germany two types of planning laws. In Prussia and a few other states the state law is little more than a street and building line statute, building and housing regulations being issued by or for the different localities ; 6 while in Saxony, Baden, and a number of 8 See however the Prussian Housing Law on p. 466 of this work. 450 THE LAW OF CITY PLANNING AND ZONING other states, city planning is a part of a state building la governing the construction, use and inspection of structun laying down general provisions binding throughout the sta except as locally varied or added to. Under both systems, in subdivisions of the state larger th; the self-governing commune, an appointive state official, wi whom is usually associated a committee, part of the membersh of which is elected by the representative body of the provin or district, issues ordinances and administers the law for t entire district, thus doing regional planning, and regulating t territory just beyond city limits in the interest of both city ai country. In the subdivisions smaller than the commune t state rules as well. In the communes the local planning authority is the loc council, and its executive, 7 elected by it. This executive is al charged with the duty of preparing matters for the consider tion of the council and has certain powers independent of it. German Planning Laws Prior to 1875. In city pla ning, partly for historical reasons, there has always been Germany less home rule than in other matters generally co sidered local in their nature. Prior to 1875, according to t planning laws in force in German states, 8 street lines were be fixed in individual cases with a view to the accommodate of traffic, and building regulations, the same for entire admi istrative districts, issued to prevent flimsy construction. The measures, so regarded, are for the preservation of the pub safety and order, which in Germany has always been treated a state duty, to be executed by state officials. It is only wi the growth of the conception of city planning as a provision f many phases of the general welfare that the necessity for general plan was seen, a larger share in its preparation giv to the local authorities, and the power of the state restricted that of supervision. Such laws, in contradistinction to t f Together, known as the "Gentfindevorstand." In some cities t executive is an upper chamber of paid experts and unpaid laymen, pi sided over by the mayor or Burgermeister ; in others the mayor and 1 assistants constitute the executive. The mayor is elected by the coun< and his election must be ratified by the state. * In some cases, however, complete city plans were in fact adopti as for instance in Berlin in 1856. ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 4Si earlier enactments, may be called modern city planning legis- lation. Under some of these later laws, however, the state, acting by the "building police," retains its old power of issuing local building ordinances, which now include zoning; except that the consent of the local authorities is as a rule also re- quired. In a few large cities the state appoints special "build- ing police," but usually confers the duty of acting in that capa- city upon the executive branch of the local council, or the biirgermeister ; who in so acting must obey the superior state officers and carry out their policies. Throughout the laws, as will appear when their provisions are given in more detail, there is provision for state supervision and control of subordinate state and local officials. The Prussian Act of 1875. The first modern planning law in Germany was passed by Prussia July 2, i875. 9 This statute was of the street and building line type. In 1918 Prus- sia enacted a measure known as the Prussian Housing Law 10 for the purpose of amending the act of 1875, and laying down some principles for the enactment of local building statutes. The act of 1875 in its original form lacked many features con- tained in the later laws of the other states, some of which Prus- sia had passed as independent statutes, some of which were altogether missing. These deficiencies were to a considerable extent made good by the amendatory parts of the law of 1918. Thus the act of 1875 in its original form did not provide for zone condemnation, for which resort to the general condemna- tion law, requiring a royal order, was necessary. In some cases, until I927, 11 apparently as a post war measure, the act as amended allows it, and also simplifies its procedure. The act in its original form did not authorize replotting. This was first provided for in the Prussian city of Frankfort-on-the-Main by the Lex Adickes, 12 which from time to time had been ex- tended to other cities in Prussia. The act of 1875 as now amended permits its adoption by any city in the state. The law of 1875 in its original form does not, the amended law 'Gesetz Sammlung, 1875, N r . 8375. 10 Gesetz Sammlung, 1918, N r . 11637 (28 March). "With the consent of the minister of public works. "See p. 466. 452 THE LAW OF CITY PLANNING AND ZONING does, authorize the condemnation of remnants. The law of 1875 in its original form was, much more than the laws in force elsewhere in Germany, uniform and rigid in its require- ments with regard to large and small houses, densely settled and more rural districts, and the width and construction of streets. Perhaps the most considerable service which the law of 1918 has rendered is the greater differentiation and flexi- bility which it has introduced in the law of i875, 13 that law, in the main, remaining much the same as when first passed. Content of Plan. The law of 1875 provides for the prep- aration and adoption by the council of a plan of street lines and building lines for the laying out and change of streets and squares "in accordance with the public needs ;" to which the law of 1918 adds the lines for small gardens, play and recreation grounds. The plan does not embrace parks, land for housing or land to be acquired in pursuance of a land policy or other municipal purpose, such as harbors, municipal enterprises, sites for municipal buildings, etc. Such land may in some cases be taken by condemnation, by virtue of a special authorization from the state to make use of the general state condemnation law, in others it must be obtained by private purchase; while the land needed to carry out the plan may be condemned with- out special authority, under the planning act itself. The plan may be for single streets or parts of streets or may be a "build- ing plan" for larger areas. It does not include building or zone regulations, which are issued by the state building police or, to be more accurate, sometimes by the state police, sometimes by the local police, acting under state authority and subject to state supervision and control; which makes them in effect a state body. Preparation of Plan. The plan is prepared, for the con- sideration of the council, by the executive branch, the prelim- inary work being usually done by a committee of that branch, consisting of an expert member as chairman, lay members, and sometimes members of the council and outside citizens; or if the mayor and his assistants constitute the executive 14 this " See p. 466. 14 See p. 450, note i. ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 453 work may be done by them ; a city department corresponding to our street department, attending to the routine. Adoption of Plan. Before the council can act on the plan it must obtain the consent of the local state police authorities, who can withhold consent only when the police interests in their charge seem to them to require it ; and from an adverse decision by them the local authorities may appeal to the superior state authorities. If the plan affects a fortress, or there are within its limits public streams, state roads, state railways, etc., the local state police shall see that the authorities concerned are given a reasonable opportunity to safeguard their interests. The executive branch shall then make the plan public, or, if it affects only single pieces of land, notify the owners. If objec- tions are raised and are not settled by negotiations between the local authorities and the objectors, they shall be decided by the superior state authorities. 15 Obligation to Adopt Plan. If there are no objections, or when they are finally disposed of, the council shall take final action on the plan and make it public. If in consequence of destruction by fire or other catastrophe, considerable portions of a city or village are in need of reconstruction, the commune shall, in so far as necessary, proceed to the adoption of a plan with all possible speed. The local state police authorities may require the adoption of street and buildings lines when the interests in their charge render it necessary. There are appeals from their action. Effect of Adoption of Plan on Land Planned. After the plan is finally adopted and made public, the law provides that, for its protection, the police authorities may refuse per- mits for the erection of buildings on those portions of lots destined for public use; and the courts have decided that, before such final action in all its stages has occurred, the permit may be denied at any time after the local authorities have decided upon definite street or building lines. In practice improve- ments of a permanent nature, that would make the taking of the land, when it occurs, more expensive, are not permitted, but "Or, in communities of less than 10,000 inhabitants, a subordinate authority (the "Kreisausschuss") in their place. 454 THE LAW OF CITY PLANNING AND ZONING the customary projections, overhangs, etc., and temporary structures, are allowed, and the owner may freely use his land for agricultural and similar purposes. Compensation to Land Owner. Under the general ex- propriation law indemnity is due both for the taking of prop- erty and for restrictions upon its use ; but the city planning law usually grants no compensation for restrictions. When the plan is adopted the owner ceases to be able to employ his prop- erty in ways which will interfere with the ultimate consumma- tion of the plan; but he is paid only for his land when it is taken. Under the plan a building line may be imposed upon an owner's land, preventing him from using it in some ways per- missible before: but he can claim compensation only if, and at the time when, in consequence, buildings are torn down. In Germany such restrictions incidental to planning in the general interest and to the transformation of agricultural into building land, to the owner's profit, give rise to no claim for compensa- tion. To the rule that no compensation is due in city planning expropriation for restrictions upon property, but only for its appropriation at the time it occurs, there are exceptions inter- esting to us chiefly as exemplifications of the rule just stated. By exception compensation is made When the building line strikes existing buildings and the land is cleared of buildings to the new line ; in which case not only the buildings but the land are at once paid for. When the lines of a proposed street strike a vacant lot on an existing street, finished and open for travel, abutting on which buildings may therefore lawfully be erected, and buildings are thereupon erected on this building lot but in the new line, thus proving beyond doubt that the new street is ready for building; in which case that portion of the lot which the owner cannot use for building purposes, because destined for street use, must at once be paid for. In these cases it will be seen that it is building value which is taken, and which is therefore paid for when taken. The owner may also demand the taking of the entire lot when by the building or street line it is either wholly or to such an ex- ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 455 tent appropriated that the rest of the lot under the building police rules of the locality is no longer suitable for building purposes. Execution of Plan. In Germany, as in Italy and other countries of continental Europe, while special authority from the state is necessary in each case for expropriation under the general law, in city planning expropriation the planning law is a general authority to take any interest in land devoted, by a duly adopted plan, to future public use. The plan remains valid indefinitely, and the commune has the right to condemn property in accordance with it at such time as it sees fit. In 1918 Prussia passed a law also allowing communes until De- cember 31, 1926, with the permission of the Minister of Public Works, to expropriate land for "moderate and small size dwellings," which may be, and in the past usually have been, apartments in tenement houses. As already stated, the Ger- man commune has always had the right to buy land freely for almost any purpose which it considers desirable; and for some purposes may obtain from the state special authority to con- demn. Payment for Improvements. By local statute the owner may be made liable for one half the cost of acquiring the land for that portion of a street of not more than 26 meters in width upon which he abuts; of constructing, draining, and lighting it, and of its maintenance for not more than five years ; the excess in the case of wider streets being borne by the com- munity as a whole. The owner is obliged to make payment, without interest, at the time when he builds upon his land. The street may be built by the public authorities or by a land owner as contractor, who may recover the cost, without interest, from the abutters when and to the extent that the commune would have been entitled to recover from them if it had constructed the street. Control over Undeveloped Area. In Prussia, except for the general obligation to care for the best interests of the public, the commune is under no obligation in any case to con- struct streets. The planning law of 1875 16 authorizes the com- 18 Sec. 12, 456 THE LAW OF CITY PLANNING AND ZONING mime by local statute to forbid the erection of houses on streets which are not finished to the satisfaction of the building police. Streets, under this provision of the planning law, include both public and private thoroughfares, and projected thoroughfares; but, outside planned and settled areas, where there cannot be said to be any prospect of street construction, the building of houses cannot thus be forbidden. Under another statute, how- ever, 17 in certain provinces of Prussia, the erection of dwelling houses outside settled areas is allowed only on permit, and in cities and villages this is interpreted to mean that* the permit is required for houses outside the area in which buildings, with their courts and yards, are contiguous. 18 The Prussian Hous- ing Law of 1918 l9 also provides that, outside planned and settled areas, building development may be limited to detached houses not more than two stories high. For these restrictions upon his rights the land owner re- ceives no compensation. These statutes, together with the pro- visions empowering the commune to plan any suitable area at any time when there can be said to be any reason to do so, give the authorities complete control over the development of both planned and unplanned areas. In practice new streets, although often planned far in ad- vance of present needs, are usually constructed only as immedi- ately needed in the narrow belt of open country just beyond the point where the solidly built city stops ; and the erection of new houses is permitted on these streets only when they are contiguous to the existing houses of the old city and to each other, or it is evident that the intervals will not be wide or of long duration. The construction, on streets provided at great expense with all the improvements and utilities and entitled to all the benefits of urban administration, of buildings with more and more vacant lots between them until the city fades " The so-called slnsifdlunysycsets or Settlement Law. of August 10, 1904, in the Cesets Sammlung or Collection of Laws of Prussia for 1904, p. 227. "Baltz, Polueirtckt, Berlin, 1910, p. 164. and the decisions of the Prussian Oberverwaltungsgericht or highest administrative court, cited in note 6; especially vol. 9, p. 340; voL 28, p. 382; vol. 48, p. 404, Sec also vol. 58, pp. 254 and 262. " Art. 4, see. i, par. i. ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 457 out into the open country, and especially the transformation of useful agricultural land into city "additions" long before they are needed, so common here, rarely occur in Germany. The Germans point out that, under a system permitting such developments, the carrying charges and expenses of operation of improvements used far short of capacity are greatly aug- mented and the costs of police, fire protection and city admin- istration generally, unduly increased. As an effort to shorten the time and thus lessen perhaps the greatest waste in convert- ing acreage into lots with needed buildings actually on them, the Prussian law and practice is well worthy of study. It has by no means, however, commended itself altogether to German city planners and social economists, some of whom think that this limitation of the supply of building land raises its price, to the profit of the land owner, instead of reducing the cost of building land and rents. The Prussian law enables the au- thorities to guide the development of their cities in the direc- tions they think desirable, and sometimes to buy outlying land and direct growth toward it, to the convenience and profit of the community. Planning Laws of Other German States. Always pre- eminent among the German states, Prussia has by no means always been in the lead. In city planning legislation Prussia was the pioneer, and her statute, supplemented by decisions, rulings, and subsequent statutes, has had great influence throughout Germany; but it is generally admitted that in many details the laws of the other states contain improvements on the law of Prussia. Saxon Planning Law of 1900-1904. The Saxon statute is of the general building, as distinguished from the street and building line, type. It covers the entire field of building con- struction, including not only the choice of materials and methods of building, minima of light and air and maximum amount of lot covered, and maximum of height, but also the conversion of acreage into building lots, planning for the future city, and replanning and zone condemnation to remedy defects in existing city construction. The law also fixes the powers of state and local authorities, giving localities the right to vary 458 THE LAW OF CITY PLANNING AND ZONING or to add to state-wide provisions, and subjecting them to the control, to a certain extent, of the state. The general features of the law and a few of its details in which it is superior to the Prussian system will be examined, and minor details and features in which it is sufficiently like the Prussian statute to make a statement of particulars unnecessary here, will be passed over. In connection with the summary of the Saxon law some of the provisions of the laws of other German states will be mentioned. General Provisions of Saxon Law. The general pro- visions of the law have two functions ; first to lay down general principles, for the guidance of local authorities, so that the lay out of blocks and streets shall be adapted to the topography, that abundant sun for living rooms shall be assured, that the width of streets shall be fixed in accordance with the needs of traffic, and that in zoning the hitherto prevailing character of the locality as well as the existing needs shall be considered; and second, to make certain definite provisions, such as those for the limitation of the maximum number of stories in coun- try places and villa sections of cities to at most three, and else- where four (except in the inner districts of the larger cities on especially broad streets or when heavy assessments have been levied on abutters, when five may be allowed), and those for the determination of the permissible number of stories in each case in accordance with the character of the locality and the breadth of the street. In this connection the provision with regard to rear land may be of interest and may serve also as a further illustration. It reads as follows : SEC. 18. (0 In so far as building on rear land is permitted at all it is to be made dependent upon the size of the court or garden, and for dwelling purposes is, as a rule, to be allowed when, for all the windows of the rear buildings, an angle of light of at least 45 degrees is secured and the space between the front and rear buildings in appropriate cases is developed with gardens. Exceptions are per- missible under special circumstances in the inner districts of larger cities. In no case shall the rear buildings of a street form a solid row. (m) In the case of larger blocks and blocks suited thereto, the right may be reserved to the building police, on petition of those ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 459 interested, to lay out later streets, for dwellings abutting on which, however, only detached houses of at most three stories, may be erected. Because the general provisions of the state law are either state- ments of general principles, or, when they are definite require- ments, are subject to local variation, it must not be supposed that they may be disregarded by the local authorities without good reason ; for the supervising power of the state may, when necessary, be used to enforce them. Local Action. Local variations of the general law or additions to it are permitted in so far as they are authorized by the general law or as local conditions demand. Such varia- tions are made by local statutes. They may be passed in com- munes by the executive branch and the council, and require the ratification of the Minister of the Interior, by whom, on appeal, differences of opinion between the two branches are settled. The local police, in so far as the matter has not been reserved for regulation by local statute, may also issue building ordinances not only for police reasons but for the promotion of the general welfare. The state may compel the commune to pass a local statute, and compel it to execute it, if necessary. Exceptions to the provisions of the building law in individual cases of hardship are granted by the state authorities. The City Plan. The content of the plan is much more extensive in Saxony than in Prussia. According to the pro- visions of the state act, it embraces not only streets and build- ing lines, but the "character" of buildings, whether wholly detached, semi-detached, or in groups or rows ; front, side and rear setbacks; height and area restrictions; sites for public buildings; restrictions on rear buildings; zoning; and other features may be added by local statute. Plans may be proposed not only by local authorities but by land owners; and are adopted as a local statute. Compensation to Land Owner. In the other German states it is the rule, as it is in Prussia, that in city planning ex- propriation no compensation is due the land owner for restric- tions incident to the transformation of acreage into building land and that therefore the owner of land planned is entitled 460 THE LAW OF CITY PLANNING AND ZONING to compensation only for land actually taken, payable at the time of the taking. In Saxony as in Prussia the exceptions to this rule are slight, but in some of the other states they are more serious. Thus in Baden, 20 if the lot has buildings on it, the owner prevented from reconstructing them by the establish- ment of a building line or street line may claim compensation, and may demand that it be paid him at the time when the permit to reconstruct is refused him. If his lot, not built up, is situ- ated on any existing street, he is entitled to payment for such part of his lot as falls within the lines of the proposed improve- ment as soon as the plan is adopted; and if the land affected is the interior of a square, as soon as the land for the surround- ing streets is acquired for public use. Moreover payment for any lot may be claimed at once on the adoption of the plan if the whole of the lot is included in the improvement. In this connection it is interesting to note that the excellent Dutch housing and city planning law requires the authorities to show why they shall not at once take and pay for land destined by its plan to become public, whenever it constitutes more than one-third of the owner's holding. Building Freedom. Of late years there has been a grow- ing feeling in Germany that the restrictions of the planning law upon the development of building land have unduly lessened its amount and raised its price, and that, especially when arbi- trarily administered, it needlessly hampered private initiative. This feeling has had little effect in Saxony, or in Prussia until the passage of the Housing Law of 1918, but has modified somewhat the laws of several of the other states. The problem has been to remedy the defects of the law without sacrificing the advantages of public control. Obligation to Extend the City Plan. In Saxony the state may, in cases where it deems it urgently necesSary, require the local authorities to adopt or change a city plan ; and they are of course under the general obligation to care for the interests of the community in their charge. There is no other obligation "Street Law of October 15, 1008, sees. 8, 9, 30; see also the Saxon law, sec. 40. and that of Anhalt, sec. 14. (Law of June 19, 1905 and May 21. 1906, amended October 18. 1016.) ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 461 to extend the city plan. In Wiirttemberg, however, 21 " 22 these authorities are required to extend the planned area of the city whenever there is need of additional housing ; and in Baden 23 it is only "when sufficient provision for the need of dwellings has been made by the establishment of local street plans and the construction of local streets" that "the erection of buildings outside the area of streets and plans may be forbidden for a given time, fixed by local police provision." Prohibition of Building in Unplanned and Unbuilt up Areas. Throughout Germany, not only in Prussia but in non- Prussian states, the need of protecting the unplanned areas and of controlling the development of planned areas not yet built up is appreciated. In most of these states building in unplanned areas is as a rule prevented, and the building of unbuilt-up areas is carefully regulated. 24 In Prussia, it will be remem- bered, a building permit may be refused for land destined by the plan for public use when, in the course of the planning pro- ceedings, the local authorities have agreed upon the lines of improvements, and thus, tentatively at least, determined the land to be used. In Saxony 25 the authorities can establish a positive building prohibition over the entire area to be planned as soon as they decide to adopt or change a plan. This pro- hibition remains in force only until the plan is adopted, and in no case longer than two years. There are similar provisions in the laws of other states. 26 Duty to Construct Planned Streets, Etc. In a number of states there is an effort to make the duty of the authorities to construct planned streets, squares, etc., in the public interest, specific. Thus in Wiirttemberg 27 and Baden 28 the street must be built as soon as the need for it appears, and in any event "'"Art. 7, ii. "Street Law, sees. 11, 12. "Saxony, sec. 15; Wiirttemberg, art. 22, 65; Baden, Ortsstrassenrecht, or Street Law of Oct. 15, 1908, sees. 6, 12; Bavaria, sec. i; Anhalt, sec. 4. In Wiirttemberg building can be forbidden outside the planned and built up areas in specific cases, but not by general rule as in Prussia; see sec. 65 of the Building Ordinance. "Sec. 35- M Wiirttemberg, sec. 12 ; Baden, Street Law, sec. 3. "Art. 22. 88 Street Law, sec. 10; the law of Hesse is similar. 462 THE LAW OF CITY PLANNING AND ZONING (a) when, up to the land for which the street or portion of street is desired, the land owners have erected, or given security for the erection of, a continuous row of houses, on at least one side of existing streets or squares, until the built-up portion of the city is reached; or (&) when the owners of land abutting on a planned street agree to assume all costs of its construction until it connects with an existing street, and its maintenance for five years, the owners so constructing receiving the right of collecting from the other land owners, when they build houses on the street, the construction cost without interest as the com- mune would have been entitled to claim compensation if it had been the contractor. Swedish Law of 1907 In 1907 Sweden passed her plan- ning law, partly superseding, partly supplementing her law of 1874. This law, now incorporated in the law of 1917, is, with some modifications, still in force as a part of the later law. In the main, the law of 1907 is similar to the Italian and German laws. The plan includes streets, public markets and other public open places and in some cases lot subdivisions. The plan is adopted by the city or town council, and must be ap- proved by the representative of the crown. After its approval, no structures shall be erected within the lines of any public im- provement made a part of the plan. Building on unplanned areas may be prohibited, and is in practice allowed only on spe- cial permit. The city has the right to carry out the provisions of the plan and may also condemn the areas needed for the purpose. The land owners are paid for the land at the time the city takes it, but receive no compensation for restrictions resulting from the adoption and approval of the plan. The novel feature of the law is its regulation of lot sub- division. Almost invariably planning statutes recognize the importance of this subject and endeavor to lay out streets so that blocks will be produced likely to be subdivided in a man- ner conducive not only to private profit but to the general wel- fare; and make requirements with regard to minimum open spaces and percentage of uncovered area which greatly affect such subdivision. In the Swedish Law of 1907 the lot sub- division is in many cases a part of the city plan which the prop- ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 463 erty owner is compelled to comply with, and in certain cases ownership may be made to conform to this plan as a condition precedent to the improvement of the lots. 29 ** In June, 1920, Commissioners from Sweden made a report to the Interallied Housing and Town Planning Conference, at that time in Session in London, on planning and housing in Sweden. (The Housing Question in Sweden, published by P. A. Norstedt and Soner, Stockholm, 1920.) In that report the Commissioners say: "The original documents with regard to Swedish building legislation are the Urban Building Act of 8 May, 1874, and the Town- Planning Act of 31 August, 1907, which last is now included as chap. I in the law of 1917 with regard to the formation of estates in towns. The Building Act is a law promulgated by the King-in-Council. The Town-Planning Act, on the other hand, has the character of a civil law and was brought into existence chiefly with the object of regulating in a binding way the juridical relations between municipalities and private individuals with regard to the enforcement of the town plan. According to the Building Act also there were to be town plans for towns and similar communities ; but such plans frequently got no further than paper, because in carrying them into effect the community had not the support of legal rules, but was dependent on the goodwill and good faith of private land-owners. This impossible state of things was abolished by the Town-Planning Act. But the importance of the Town-Planning Act is not exclusively confined to this. In many other respects also it has formed a much needed comple- ment to the Building Act, which is now antiquated in many points. "Both the Building Act and the Town-Planning Act primarily apply to the Towns and also to the more fully developed town-like communities in country districts which in Swedish are called kopingar (English chip- ping) and are roughly equivalent to Urban Districts. If the Crown so directs, these laws may also be extended to other localities in country districts with a more or less dense population (such as the communities that gather round important railway stations and works, harbours and fishing centers, etc.) ; and these are then constituted special communities for the performance of the duties that are cited in these laws. These primitive communal combinations are called municipalsamhallen, which roughly correspond to Special Sanitary Districts. Outside the towns, the urban districts and such special sanitary districts, in which the Building Act and the Town-Planning Act are binding, there is usually complete liberty with regard to building. This limitation has had results that are anything but happy ; and abuses have been further intensified by the fact that the building laws have been construed in such a way that in fact they have not been applied at all until a town plan has been sanctioned for the place in question, and even then only for the area included in the Town Plan. "The existence of a town plan is thus an essential condition for the subjection of the individual, as regards building, to measures of public control, which are chiefly exercised by a communal organ known as Byggnadsndmnden or the Building Control Board. It is only just, how- ever, to recognize that, within the Town Plan and in connection with the laying out of the plan, what is on the whole an effective organization of building control can take place. The possibilities of this offered by the Building Act of 1874 are in themselves extremely limited ; but they have been very happily supplemented by the Town-Planning Act. As has been mentioned above, the Building Act has binding force within an area for which a town plan has been sanctioned ; and the same is the case with the 464 THE LAW OF CITY PLANNING AND ZONING local regulations which, under the name of Building By-Laws, have to adapt the general principles laid down in the Building Act to the special circumstances of each community. But the Building Act and the local Building By-Laws suffer from the weakness that they leave no room for any real differentiation. As a rule they do not prescribe different rules for the building of different parts of the community. This requirement, on the other hand, has been provided by the Town-Planning Act, which permits the promulgation, in connection with the Town Plan, of 'special town-planning or building regulations.' "These regulations according to the Town-Planning Act, are passed and established in the same way as the Town Plan itself. The right of making a decision falls to the proper communal authority of the place, subject to the sanction of the Crown. These special Town-Planning Regu- lations have acquired extreme importance in the rational regulation of the way in which urban areas are to be built over. Thus, for instance, while the Building Act permits the erection of five-storey houses everywhere within a community where the streets are sufficiently broad, the turning to account of plots for building purposes almost to the uttermost limit, etc., these special regulations in connection with the Town Plan may lay it down that a given block, or a given part of a block, may be built over only with detached one-family houses, occupying a minor proportion of the area of the several plots, while other blocks may be covered only with industrial establishments ; that certain ground belonging to a given block shall not be built upon, but shall be left as a fore-court or court for the whole block. If there are no such regulations, on the other hand, the Building Act and the Building By-Law hold good with their uniform and, from a social standpoint, very unfortunate method of building at any rate in so far that the owner of the land cannot be compelled against his will to subject himself to any restrictions over and above those therein provided. "These brief notes may give some idea of the extent to which the town-planning system plays a decisive part in building operations within the Swedish urban communities, and of the importance of a town-planning policy which is skilfully conducted, based on expert knowledge, and ani- mated by a broad social spirit. And indeed the town-planning system in Sweden during the last ten years has shown a rich and fertile develop- ment, guided by a staff of eminent specialists, who have understood how to turn to account the great possibilities opened up by the law of 1907 for the utilization of the Town Plan in the service of the systematic regula- tion of building. "The work of town-planning is primarily a municipal matter : a plan for the town must be made for every town and similar community and is essed by the municipal authority affected, but it must, to pain validity, sanctioned by the Crown. Nevertheless a very substantial part of the honour of the high standard of the Swedish Town-Planning system must be awarded to the central government organ in this department, the Royal Building Board, which in word and deed has helped the municipalities in the solution of the very difficult problems that have come before them in the working out of suitable plans. A few figures will give an idea of the scope of this work. In the year 1918 the Building Board dealt with no fewer than 278 items in the nature of Town-Planning; and in the same year the Crown approved 45 new or considerably extender! town plans, of which 31 were concerned with towns, 4 with urban districts and 10 with special sanitary disti "Though there is thus every reason to be satisfied, on the whole, with our present building legislation, nevertheless, as has already been observed by way of introduction, that legislation still suffers from a number of de- ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 465 Note G No. i. THE ITALIAN EXPROPRIATION LAW OF 186s 10 CHAPTER VI OF REGULATORY BUILDING PLANS ART. 86. Those communes having a population of at least 10,000 may, for the public welfare, to be determined by actual need to pro- vide for health and for the necessary communications, make a reg- ulatory plan in which shall be shown the lines to be observed to attain the desired improvement in the reconstruction of the parts of the commune in which the faulty arrangement of the buildings is to be remedied. ART. 87. The projects for the regulatory plans shall be made public by the mayor in accordance with the terms of articles 17 and 1 8 and must be adopted by the Communal Council, which shall con- sider any objections that may be presented. If the Communal Council shall disallow the objections, the Provin- cial Deputation shall be asked for its opinion upon the merits of the project and the objections to it. The regulatory plans shall be approved in accordance with the provisions of article I2, 31 after the Superior Council of Public Works and the Council of Sanitation, when necessary, have been heard. In the decree approving the plan, the time within which it must be executed, not to exceed twenty-five years, shall be fixed. fects, the remedy of which is the object of lively interest on the part of Government authorities. Both the Building Act of 1874 and the Town- Planning Act of 1907 are at the present moment under revision.* The primary object of this revision is to tackle what we may call the rookery problem, that is to say the unregulated, huddled and planless building over of^ areas just outside the boundaries of the urban communities proper. In this respect two ways may be followed : either to extend a compulsory plan- ning to such an extent that no building operations of any magnitude may be started at all without a detailed plan for their arrangement ; or to set up and try to carry into effect certain fundamental requirements in build- ing without going so far as to insist upon the elaboration of a complete town plan in every case. Both methods have distinct advantages and no less distinct drawbacks ; and it cannot yet be foreseen which will be chosen by the legislature. One thing is certain, however, and that is that we may very soon expect a forceful intervention with the object of guiding build- ing operations, even outside the borders of the present urban communities, into sound ways controlled by public authorities." 80 Adopted June 25. Raccolta uMciale delle leggi e del decreii, 1865, No. 2359. P- I477- * Of this law. * On December 15, 1920, the committee in charge of the matter brought in _a report, with the draft of an amended law, for which see Betankande med Forslag till Stadsplanlag, published by the Kungl. Boktrycleriet, P. A. Norstedt, & Soner, Stockholm, 1920. 466 .THE LAW OF CITY PLANNING AND ZONING ART. 88. The decree approving the plan shall be published by the Mayor and within one month brought by him, in the form of sum- mons, to the attention of each owner of property comprised within the plan. ART. 89. When the regulatory plan has become final, the owners of lands and of buildings comprised within it who wish to make new constructions or rebuild or modify existing constructions, whether of their own volition or through necessity, must, from the day of the publication of the plan, conform to its provisions. ART. 90. Works made in violation of the preceding article shall be destroyed and the owner shall be fined not more than 1000 lire. ART. 91. The area of the buildings and lands upon which con- struction is prohibited, as well as the public area upon which private buildings are to be erected, do not cease to belong to the respective owners until the deposit or the payment of compensation shall have been made according to articles 39 and 40. ART. 92. The approval of the regulatory plan is equivalent to a declaration of public utility and confers power to expropriate prop- erty comprised within it; provided, however, that the provisions of the present law are observed CHAPTER VII OF EXTENSION PLANS ART. 93. Those communes for which the actual necessity of ex- tending the inhabited part is proved may adopt a regulatory plan of extension, in which shall be shown the rules to be observed in the construction of new buildings so as to provide for the health of the inhabited part, and for its safest, most convenient, as well as its suitable and dignified arrangement. To these plans the provisions of the preceding chapter are appli- cable. ART. 94. If for the execution of the extension plan the com- mune must proceed to the construction of the public ways, the owners shall surrender the necessary land without other formality. The compensation shall be determined in accordance with articles 39, 40, and 41 ; * but the owners shall also be liable for such contribu- tions for the construction and maintenance of ways as may be im- posed upon them by local bylaws. No. 2. THE PRUSSIAN STREET AND BUILDING LINE LAW OF 1875, AND HOUSING LAW OF 1918 The Prussian statute of July 2, 1875 (to be found in the Gcsctz Sammlung, or Collection of Laws of Prussia for that year, p. 561) "Of this law. ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 467 popularly known as the "Street and Building Line Law," practically unchanged until 1918, was materially amended by the Housing Law of that year (passed March 28, to be found in the Gesetz Sammlung, p. 23). The law of 1875 is here given as amended, the portions of it stricken out by the law of 1918 being enclosed in brackets, ([ ]) and the additions made by that law being placed in italics. The Housing Law of 1918 consists of amendments to the law of 1875 which appear in italics in the law of 1875; of matter of interest to the reader in this country which is given in full as it appears in the law of 1918; and of matter of little interest to such a reader or not relevant to this work, which is summarized. In this note the amended act of 1875 is first given, followed by all the provisions of the act of 1918, in full or in summary, or an indication where in this work they can be found. LAW WITH REGARD TO THE LAYING OUT AND CHANGE OF STREETS AND SQUARES IN CITIES AND RURAL LOCALITIES, OF JULY 2, 1875 SEC. I. The street and building lines for the laying out or change of streets and squares and also gardens, play and recreation grounds in cities and rural places, in accordance with public needs, shall be established by the Executive Branch of the Local Council in concur- rence with the Local Council, with the consent of the local police authorities. The local police authorities may require the establishment of street and building lines when the public interests in their charge or the rise of a need of small or medium sized dwellings render it nec- essary. In the latter case, the consent of the Supervisory (State) Committee* 3 is required. In the meaning of this statute, the street includes the road bed and the sidewalks. As a rule the street lines are also the building lines. For special reasons, however, a building line back of [different from, but as a rule not more than 3 m. back of] the street line, may be established. SEC. 2. Street and building lines (sec. i) may be established for single streets or parts of streets, squares (and gardens, play and recre- ation grounds), or for large areas, in accordance with the probable needs of the near future, by the establishment of building plans. If, in consequence of destruction by fire or other catastrophes, it is a question of rebuilding entire sections of a place, then the munici- pality shall come to a speedy decision whether and to what extent a new building plan shall be proposed; and if proposed, to provide for its immediate establishment. 43 Besirksausschuss. Prussia is divided into provinces, the provinces into Bezirke, or large administrative units, and the Besirke into smaller units called Kreise, translated as "districts." 4 68 THE LAW OF CITY PLANNING AND ZONING SEC. 3. In establishing street and building lines due regard shall be paid to the need of dwellings as well as the requirements of traf- fic, safety from fire, and public health; and care shall also be taken that there shall not be any disfigurement of the streets or of built-up localities or country landscapes. Streets shall therefore be sufficiently broad, and, in new sections, the connection with existing streets, good. In order that the need of dwellings may be met, care shall also be taken that squares (also garden, play and recreation grounds) have been laid out in abundance, that opportunity has been provided to erect church and school buildings in suitable places, that for dwelling purposes blocks of a suitable depth and streets of less than the ordi- nary width in accordance with housing needs of various sorts /n/rv been constructed and that by the fixing of the necessary lines build- ing land in proportion to the need of dwellings has been opened up. SEC. 4. Every establishment of street and building lines (sec. i) shall contain an accurate designation of the lots and parts of lots affected and shall fix the grades and indicate the method of drainage of the streets and squares in question. SEC. 5. The local police authorities shall have power to withhold their consent (sec. i) only when the public interests in their charge or the rise of a need of small or medium sized dwellings require it. In so far as consent is refused on account of the rise of a. need of small or medium sized dwellings, it requires the concurrence of the supervisory authorities. If the Executive Branch of the Local Council does not acquiesce in the refusal, it may appeal to the District* 4 Committee. It is authorized to act with regard to the question of need on petition of the local police authorities, when the Executive Branch refuses to accept the fixation of lines demanded by the local police authorities (sec. i, par. 2). In so far as such a petition is based upon the rise of the need of small or medium sized dwellings, it may be made only in concurrence with the local supervisory authorities. For the district committee in any city which constitutes a district * and in any city of more than 10,000 inhabitants which forms part of a rural district," is substituted the Supervisory (State) Committee; in Berlin the Minister of Public Works. SEC. 6. If the plan to be established affects a fortress (sec. 4), or there are within its limits public streams, state roads, railways or railway stations, then local authorities shall see to it that the authori- ties concerned are given a reasonable opportunity to safeguard their interest. " "Krcis"; see note 33, p. 467. ""Stadtkreis." "Landkreis." ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 469 SEC. 7. When the local police authorities, or, as the case may be, the District or Supervisory Committee (sec. 5) has given its consent, then the Executive Branch of the Local Council shall furnish the pub- lic an opportunity of inspection, public notice of which shall be given in the manner customary in the locality. This notice shall contain a statement that objections to the plan may be made to the Executive Branch of the Local Council within a given time, which shall be not less than four weeks. If the establishment affects only single pieces of land, then notice to the real estate owners concerned may be sub- stituted for the opportunity for general inspection with notice. SEC. 8. In so far as objections raised (sec. 7) are not settled in negotiation between the Local Council and the objectors, they shall be decided by the District Committee, or, in any city which constitutes a district or a city of more than 10,000 inhabitants in a rural district, 38 * by the Supervisory Committee ; in Berlin by the Minister of Public Works. If there are no objections, or when they are finally disposed of (sec. 16), then the Local Council shall formally establish the plan, lay it open for public inspection and make it known in the manner usual in the locality. SEC. 9. If several localities are concerned in the fixing of street and building lines, the Executive Branches of the Councils of the localities involved shall discuss the matter and try to come to an agreement. On matters in which an agreement cannot be reached, the District Committee decides, or in any city which constitutes a district, or city of more than 10,000 inhabitants belonging to a rural district, the Supervisory Committee ; and in Berlin, the Minister of Public Works. SEC. 10. Street and building lines, whether established before or after the passage of this statute, can be abolished or changed only in accordance with the foregoing provisions. For the establishment of new or the change of existing building plans in the cities of Berlin, Potsdam, Charlottenburg and their im- mediate surroundings, royal consent* 1 is necessary. SEC. ii. On and after the day on which the plans are made pub- lic, as provided in section 8, the owner holds his land subject to the restriction that all building beyond the building line may be forbid- den. At the same time the municipality acquires the right to appro- priate the land destined by the established street lines for streets and squares, and also for gardens, play and recreation grounds. SEC. 12. By local statute it may be provided that on streets or parts of streets which are not yet, in accordance with the building police regulations of the locality, completed for public traffic and M * Many but not all cities of more than 10,000 inhabitants have become Stadtkreise. 37 Now the consent of the State. 470 THE LAW OF CITY PLANNING AND ZONING building on land abutting thereon, residential buildings with an exit toward these streets shall not be erected. Within the general terms of this provision, local statute shall pre- scribe the conditions in detail. Such statute must be approved by the Supervisory Committee ; in Berlin by the Minister of the Interior. From the decision of the Supervisory Committee there is, within a period of two weeks, an appeal to the Provincial Council. After ratification the statute shall be made public in the manner customary in the locality. (4) From the prohibition exemption may be granted if a need of small or medium sized dwellings exists, if there is a well founded prospect that the owner is intending to provide for this need by the building of appropriate healthful and properly arranged dwellings and if there is no paramount proper interest of the commune to the con- trary. If the council shows that proper measures have been taken sufficiently to fill the need for small or medium sized dwellings by the erection of houses of at most two stories and if security is given that these measures will be carried out, then the exemption for the erec- tion of buildings with more stories shall not be granted. (5) If by resolution, of the Executive Branch and the Council it is provided that dwelling houses shall be erected only on the making of payment or the giving of security for the assessments, fixed by the Council in accordance with section 15 of this law or section p of the Communal Tax Law of July 14, 1893 (Gesets Sammlung f p. 152), then the exemption shall not be granted until such payment has been made or security given. (6) With regard to the granting of exemptions in contested cases the Supervisory Committee decides. (7) Under the same conditions the Supervisory Committee shall have the right to decide that the commune, in so far as it maintains a public water, drainage or lighting system as a community undertak- ing, shall give the land owners, in accordance with general local regu- lations, the use of these utilities. SEC. 13. For the limitation of the right to build under section 12 no indemnity shall be allowed; and for the taking of land or the limitation of the right to use it by the fixing of new street or build- ing lines, only in the following cases: 1. When, on the demand of the municipality, the land destined for streets or squares, and also gardens, play and recreation grounds, is surrendered to public use; 2. When the street or building line affects existing buildings and the land is cleared of buildings to the new line; 3. When the street line of a street newly to be built affects a piece of land not built on, but suitable to be built on ; and this land at the time of the establishment of this line was situated on an already existing street, finished and ready for public traffic and for the erec- ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 471 tion of structures on land abutting on it ; and buildings are erected on the new line. When land is destined for streets and squares, gardens, play and recreation grounds, indemnity is allowed in all cases for the taking of the land ownership; and also where, under par. 2, there is a restric- tion of the right of ownership in the land in consequence of the establishment of a building line different from the street line, in so far as the use of that part of the land already built on is restricted. (Sec. 12 of the Law with regard to Condemnation of Land, of June II, 1874.) In all the above mentioned cases the owner may demand the tak- ing of the entire lot when by the building line it is either wholly or to such an extent appropriated that the rest of the lot under the building police rules of the locality is no longer suitable for building purposes. In this paragraph "lot" shall be deemed to mean all contiguous land belonging to the same owner. SEC. 130. At the time when the lines for a street, a part of a street or a square are formally fixed, the right accrues to the com- mune to take from the owner with compensation any piece of land contiguous to the line of the street, the part of the street or the square, in so far as, according to the building police regulations of the locality, it is not suitable for building purposes. SEC. 14. In fixing the indemnities to be paid under section 13 and section 130, paragraph i, and in carrying out the expropriation, section 24 ff. of the Law with regard to Expropriation of Land of June ii, 1874, applies. Disputes over the date when indemnity is due shall be decided by the courts. The indemnities are to be paid by the municipality within whose limits the land in question lies, except where, for some special legal reason, an individual is liable. SEC. 140. The law with regard to the replanning of building land in Frankfort-on-the-Main of July 28, 1902 (Gesetz Sammlung, p. 273} and the law of July 8, 1007 (Gesetz Sammlung, p. 250) amend- ing section 13 of the same, may be adopted for the limits of a com- mune by local statute. The local statute must be ratified by the Super- visory Committee. SEC. 15. By local statute it may be provided that (a) upon the laying out of a new or the extension of an exist- ing street, if it is intended that buildings shall be constructed on abut- ting land; or (b) upon the construction of buildings on land abutting on existing streets or parts of streets where there has been no such construction the promoter of the addition or the abutting landowners the 472 THE LAW OF CITY PLANNING AND ZONING latter as soon as they build on such land shall clear, construct, drain, provide for lighting in proper manner, and for a period not to exceed five years maintain the street; or shall contribute proportionately to the costs or pay a sum sufficient for all of such purposes.*" The abut- ting owners shall not be assessed for more than half the width of the street ; or, if it is wider than 26 m. for more than 13 m. The entire cost of street construction and maintenance shall be assessed on the abutters in proportion to their frontage on the street. // the frontage of a lot whose owner has become liable for street costs is later increased by reason of the fact that to the lot an area has been united in use for which the street costs have not been paid, in such case the costs collectable for such increase shall thereupon be imposed upon such owner. Detailed regulations for assessment in accordance with these pro- visions ** shall be made by local statute. The provisions of section 12 govern as to its approval, appeals therefrom, and publication. SEC. 150. (i) By local statute it may be prescribed that the assessments provided for in the previous paragraphs and in section 9 of the Communal Tax Law of July 14, 180,3 (Gesetz Sammlung, p. 152), as well as the payments specified in section 6 itself for buildings abutting on streets, which from their situation and construction appear to be specially intended for dwellings for those of small means and for building up with houses of at most two stories (small dwelling streets) may be altogether or in part remitted or made payable in installments, in so far as the buildings are intended chiefly for dwellings of the kind described or for common appliances for the benefit of those of small means (the care of children, education, recreation, and the like). If later the purpose of the building is changed, then the taxes and assessments, in so far as they were remitted or made payable in installments, may be collected from the owner of the land at the time. (2) The local statute may make further provisions with regard to the conditions under which the privileges shall apply to the streets, buildings and dwellings in question. * SECS. 16-18. Procedural matters, of no general interest, now superseded by other statutes or repealed. * SEC. 19. Repeal of statutes and building police ordinances, in so far as contrary to this statute. SEC. 20. The Minister of Public Works is charged with the execution of this statute. *** The paragraphs in this sentence and the symbols indicating the same, not in the original law, were for clearness introduced by the author in the translation. "To which the Communal Tax Law of 1893, sec. 10, adds: "or on some other basis, especially area fit for building on." * Summarized. ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 473 * PRUSSIAN HOUSING LAW OF MARCH 28, 1918 ARTICLE I Amendments of law of July 2, 1875, for which see p. 466 of this work. ARTICLE 2 In so far as necessary for the satisfaction of the need of medium- sized and small dwellings and the sanitation of residential districts, house blocks and the like, the Minister of Public Works is em- powered, until December 31, 1926, to authorize expropriation, under the Simplified War Statute of Expropriation of September n, 1914, and March 27, 1915. ARTICLE 3 Extension of the right of enlarging and changing the boundaries of communes. ARTICLE 4 SEC. i. Building ordinances may: 1. Regulate use zoning, and, where building lines have not been established, create districts in which only detached houses of not more than two stories are allowed. 2. Create districts for which heavy industry is excluded. 3. Create districts solely for residential or industrial structures. 4. Regulate the finishing and painting of structures to be used for residential purposes, and all structures visible from public places; also require uniformity in the design of the structures abutting on streets, with due regard to the protection of monuments and the home, including the appearance, not only of the houses themselves, but of the street or country landscape of which they are a part. 38 5. Require the submission of plans of the design of all the outer surfaces of dwelling houses. 6. Provide when garden structures, etc., shall not be deemed to be dwelling houses under the settlement laws of Aug. 10, 1904, Nov. 4, 1874, and section 12 of the law of July 2, 1875. SEC. 2. i. In so far as the building development requires it, the provisions of building ordinances for dwelling houses, especially those with regard to construction to ensure stability, safety from fire, * Summarized. 39 The German word is Heimatschutz or "protection of the home." In English we are just beginning to regard the setting of the house as a part of the home, and have no one word or expression comprehensive enough to include all that the German word contains. 474 THE LAW OF CITY PLANNING AND ZONING safety of exit, and height of rooms shall differ for large and small buildings. 2. If in larger districts 4 * there are building ordinances for large and small communes, then the provisions in them with regard to height of buildings, the amount of open space to be left and the num- ber of stories, to fit the special conditions in each commune shall be differentiated. 3. In cities which are districts as a rule building regulations shall be issued by the local authorities. SEC. 3. Building ordinances shall provide that where detached houses are practicable and in general use, exposed party walls shall be prevented. SEC. 4. i. Police ordinances, so far as conditions require, shall have graduated provisions for the construction and maintenance of local streets in accordance with their special purposes (main traffic streets, minor traffic streets, residential streets and roads, etc.). 2. To promote proper residential conditions, police ordinances may limit traffic on residential streets, byways, and other local streets which serve as access to dwelling houses. SEC. 5. Procedure. ARTICLES 5-7 Use and inspection of dwelling houses. ARTICLE 8 Aid by the state (20 million marks) for the erection of houses in furtherance of cooperative and other building projects. ARTICLE 9 Repeals, etc. No. 3. THE SAXON BUILDING LAW OF 1900** * PART I. GENERAL PROVISIONS SEC. I. The word "buildings" as used in this law, includes not only structures of all sorts rising from the ground, but the necessary **The political or administrative district consisting of several cities or other municipalities and the surrounding country is meant. 41 Passed July i, 1900; to be found in the Gesets und ^erordnungsblatt or Collection of Laws and Ordinances of Saxony for 1900. G. V. Bl., p. 381 ; here given as amended May 20, 1904, and to some extent by later Taws; to be found in ib., p. 163. For the law in this form, with intro- duction, and notes, in German, see the edition of Dr. A. Rumpelt, 4th ed., Leipsig, 1911, Rossbcrg'sche Verlagsbuchhandlung. * Summarized. ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 475 sewers, water and light connections, etc., for them, as well as bridges, dams, etc. SECS. 2-4. Record of building police restrictions. SEC. 5. Where building is destroyed without fault of owner by fire, water or other elemental force, rebuilding for five years there- after governed by provisions relative to lots not built on. SECS. 6-7. Exceptions to the requirements of this law are granted by the state administrative or police authorities after hearing all parties interested. PART II. LOCAL LAWS AND POLICE REGULATIONS SEC. 8. In so far as, in view of local conditions, a special statu- tory regulation of building matters, in accordance with the provisions of this statute or in addition to them, appears to be expedient, it shall be made by local statute. Provisions of local statutes deviating from the terms of this statute are permissible in so far as they are authorized by this statute or as local conditions demand. SEC. 9. The local statutes may be issued for communes, or manors, or parts thereof. When lots of land abut on a street that, in its entire width, is in one commune or manor and the lots are in another commune or manor, provisions for imposing upon the owners of these lots outside its limits the duties specified in Parts IV and VI of this law may be passed as local statutes by the jurisdiction in which the street is situated when strong reasons of expediency demand. For the ap- proval of such provisions a previous hearing of the Communal Coun- cil of the neighboring district and of the landowners affected, is necessary. SEC. 10. The local statutes authorized by this law shall be passed, in cities under the Revised City Law, by the Executive Branch of the Local Council and the Local Council, or [in cities where the Executive Branch and Council are consolidated] by the Consolidated Council; in rural communes by the Council or [where the local government con- sists simply of an assembly] by the assembly ; in independent manors, on petition of the owner, by the presiding officer of the district, acting with the Supervisory Committee, 43 and require the ratification of the Minister of the Interior. Differences of opinion between the Executive Branch and the City Council with regard to the issuance or the content of such a local statute are decided by the Minister of the Interior, after hearing the District Committee. SEC. n. By identical resolution passed by the requisite repre- ** "Bezirksausschuss." 476 THE LAW OF CITY PLANNING AND ZONING sentatives of the communes and so far as independent manors are concerned, by agreement thereto of the owners, such local statutes can be passed for several communes or communes and manors. SEC. 12. Local statutes, except in so far as affected by Imperial or state statute, may be amended or repealed in the same way as passed. SEC. 13. In cases of urgent necessity the supervisory [state] authorities, in conjunction with the District 41 or Supervisory Commit- tees, may require the Communal Council to pass or amend local statutes in accordance with the intent of this law. The content of the local statute demanded in such cases must fulfill the requirements of this law and take local conditions into account. If the Communal Council in question does not act in accordance with the demand so made within a period to be specified therein, the Minister of the Interior may pass an order to the desired effect, in its stead. SEC. 14. In so far as the regulation of building police matters is not specifically reserved to control by statutes passed by local authori- ties, they may also be regulated by local police ordinance (sec. 12, no. i of the Organization Statute of April 21, 1873, sec. 102 of the Revised City Law, sec. 8, par. 3 of the City Laws for Middle Sized and Small Cities, sec. 70, par. 3, sec. 84 of the revised (state) Local Government Law). PART III. FIXING AND EFFECT OF CITY PLAN SEC. 15. When a tract of land, for the most part not built on, is opened up for building, a "building plan" of it, fixed by local statute, is as a rule necessary. Such a plan, however, can also be issued for lands already built on. SEC. 16. Among the matters to be fixed by the building plan are especially : (a) Building lines, within which building on lots is permitted, and by which areas for public traffic or for front gardens, and land below high water mark, as fixed by competent administrative authority or local statute (comp., sec. 84) are excluded from building. (b) The "character" of buildings,* 4 the setback of the building, both from the street line and the neighbor's line, the building height, the restrictions, if any, against industrial works, and the percentage of the area of rear land that may be covered with buildings. (c) The fixing of water courses, drainage of the territory planned, and the carrying of certain streets over and under others. SEC. 17. Building plans shall consist of the necessary drawings and the special building provisions to be issued. ""Kreis." 44 1. e., whether detached, semi-detached or in rows. ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 477 The more detailed provisions with regard to the form of the plans and drawings required for a building plan shall be contained in the royal ordinance to carry this into effect 48 and in local statutes and regulations. SEC. 18. In establishing building plans regard must be paid to safety from fire, expected traffic, sanitation, suitable supply of water, drainage, the situation and development of the locality or part thereof in question, the local housing needs and the protection of streets and squares from disfigurement. In so doing especial attention is to be given to the following: (cr.) The lay-out of blocks and street and building lines must be adapted to the topography, and so made that abundant sun for the living rooms is assured. (&) The dimensions of the individual blocks shall be such as to allow of an advantageous utilization of the land. (c) The width of streets and sidewalks shall be fixed in ac- cordance with the needs of traffic at the place in question, being greater in the case of principal streets, and less in the case of side and exclusively residential streets. In streets of detached buildings without through traffic, the width of the street need not exceed 8 m. Where, later, through traffic (especially street car traffic) and there- fore street widening is to be expected, front garden strips " of appro- priate depth are to be laid out on both sides. Private streets which serve several lots as entrances to the land in the rear, shall not be of less than 6 m. in width. Streets with detached buildings and a moderate amount of through traffic, as well as all streets with at- tached buildings in rows, are to be laid out at least 12 m., and streets with such business or through traffic, at least 17 m. in width. (d) So far as feasible, grades of streets are to be evenly dis- tributed, sharp rises, cuts, and causeways, as well as straight street lines of excessive length, to be avoided. (e) In fixing the direction of streets, care shall be taken to secure short and effective connections of streets with each other and with the main centres of traffic. (/) Public open spaces and planted areas are in size, location, and number, so to be laid out as to be in accord with the needs of traffic and general welfare. Lots for church and school buildings, as well as for public play and recreation grounds, are to be provided in sufficient quantity. (#) In framing the provisions with regard to the "character" of building 47 and the permissibility of factories and industrial plants, the hitherto prevailing characteristics of the place or section, as well 45 To be found in G. V. Bl., p. 428. 48 1. e., setbacks, the land to be used as a garden or lawn, 47 1. e., whether detached or attached in rows. 478 THE LAW OF CITY PLANNING AND ZONING as the existing needs, are to be considered. In any case, however, care shall be taken that streets with attached buildings in rows, when not forbidden by local law, are intermingled sufficiently with streets of detached buildings, and that in the outer districts a suitable limitation of the density of buildings and dwellings is provided for. (h) Front garden strips, when they are not solely for the later widening of the street, are to be laid out with a depth of at least 4-5 m. (*') The permissible number of stories is to be determined in each case in accordance with the character of the place and the breadth of the street. For country places and the country house sec- tions at most three, elsewhere at most four, stories shall be per- mitted; and only in the inner districts of the larger cities on espe- cially broad streets or squares or when considerable assessments are made on abutters for the cost of regulating the course of streams shall, as an exception, five stories be permitted. In reckoning the number of stories, the ground story, any half story, and the roof story, when it is to be used for residential purposes, are to be included. (fc) The necessary courts and gardens in the interior of a block are to be assured by means of provisions with regard to their extent and location and, when necessary, by the fixing of rear build- ing lines. (/) In so far as building on rear land is permitted at all it is to be made dependent upon the size of the court or garden, and for dwelling purposes is as a rule to be allowed only when, for all the windows of the rear buildings, an angle of light of at least 45 degrees is secured and the space between the front and rear buildings, in appropriate cases, is developed with gardens. Exceptions are per- missible under special circumstances in the inner districts of larger cities. In no case shall the rear buildings of a street form a con- tinuous row of attached structures. (m) In the case of larger blocks suited thereto, the right may be reserved to the building police, on petition of those interested, to lay out later streets for dwellings, abutting on which, however, only detached houses of at most three stories, may be erected. SEC. 19. The building plans are to be filed with the building police at least in duplicate. By local law a larger number of copies may be required. SEC. 20. If the building plan is not proposed by the municipality itself then the building police must without delay give its decision, whether it accepts or rejects the plan for further consideration in accordance with section 21 ff. A refusal is permissible when the building plan is in conflict with legal provisions, or the public wel- fare, or when the lands for which the plan is proposed are not owned by the proposer of the plan. If the plan is accepted by the building ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 479 police, then the building police shall obtain the decision of the munici- pal authority concerned as to its adoption by local law. In case of groundless delay in coming to a decision or unwar- ranted refusal of the plan, the provisions of section 13 are applicable. In the same way the local municipal body having authority may be compelled to establish a building plan when necessary to secure recon- struction of buildings destroyed by fire, water, or other elemental force (*here follow provisions with regard to procedure in country districts, etc.). SEC. 21. The building police shall, with the aid of experts, ex- amine the building plan to ascertain that all public interests are safe- guarded and the private interests of those concerned provided for as equitably as possible. The police shall therefore discuss these mat- ters with the authorities concerned, and also, as far as they think necessary, with any other parties interested; and as a result of the examination or discussion shall cause the necessary changes in the plans to be made. SEC. 22. The building plan shall be open to public inspection for at least four weeks. Time and place of inspection shall be publicly made known. Objections to the building plans shall be made within four weeks of the beginning of the period for inspection or the right to object will be forfeited. Notice to this effect shall be given in the public notice already referred to. If the building plan concerns only single tracts of land, then instead of public inspection and notice, notice to those concerned with an allowance of at least two weeks for objections, may be substituted. SEC. 23. The building police shall pass on the objections raised within the given time. SEC. 24. If no objections are raised or they are disposed of by withdrawal, agreement or decision, the building plan shall then be submitted to the Ministry of the Interior for ratification. SEC. 25. Public notice of the building plan as ratified, and an opportunity for its inspection, shall be given by the municipal authorities. Upon such notice, or, when this notice is given more than once, upon the first notice, the building plan shall be deemed to be established. SEC. 26. Building plans ratified by the Ministry of the Interior can be added to or changed only by the same method as that provided for their original establishment. Immaterial changes for instance, small changes in elevations, or street and building lines, the breaking of street corners and the like may be ratified by the building police alone, when, after hearing the landowners concerned, no objection is raised by them. * Summarized. 480 THE LAW OF CITY PLANNING AND ZONING SEC. 27. In so far as single tracts of land on streets already built up, or a new building district of small extent, or a place or section of a place without important building development, is concerned, street and building lines may also be fixed by the building police, after hearing those interested; and when thereby burdens for the municipality would be created, a hearing shall also be given to the municipal authorities. Notice of the adoption of the plan is to be given to those interested and to the representatives of the munici- pality, and such adoption is subject to appeal. SEC. 28. In so far as the owners of land touched by building and street lines established by local statute or by the building police have not already begun to build in accordance with the plan, they acquire no right to compensation on account of a change in it. A change in the building and street lines already fixed shall be made only when weighty public interests are involved or there is no prospect of the further execution of the plan as it stands, and, furthermore, where buildings have been erected in accordance with the plan, such a change shall be made only after due regard has been paid to these buildings and a hearing given to the owners of the land on which they stand. SEC. 29. The established building plan or building and street line plan controls all building in the territory planned. Nevertheless the owner of lands destined for public traffic areas may use these lands for other than building purposes and enclose them with necessary fencing, until they are surrendered to the mu- nicipality. The owner is expressly authorized, until the municipality declares itself ready to take these lands at once, or the Ministry of the Interior has given its approval of their condemnation, to improve them for cultivation in ways which raise their value. If, later, expro- priation or surrender for value ensues, the owner is entitled to com- pensation for this increased value. SEC. 30. When the restrictions on building created by the adop- tion of the plan, go into effect, land which has not as yet been built over and which according to the plan is to be used as a street or public square, can no longer be built on except in so far as this is permitted in the case of overhanging roofs, balconies, bay windows and similar projections (comp. sec. 97) or when a public place is expressly reserved for single, especially public, buildings. The erection of temporary buildings, however, is allowed, but as soon as the land is taken for the street or public place, the owner, without claim for compensation, must remove the buildings or allow them to be removed at his expense; and also the fencing erected after the establishment of the plan. The same is true of the temporary use of the surface destined by the plan to become front gardens or front courts. Temporary buildings and fencings shall, on the demand of the building police, be ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 481 removed when the street on which the front garden or court abut is laid out and taken over by the municipality. SEC. 31. When an established street or building line strikes a lot which has been built on, then upon the re-erection of a building on the lot, or the erection of additions to it, or the increase of its height, the land is to be cleared to the line established, and, so far as that land is needed for the street or public place, to be surrendered to the municipality on its demand. In so far as the municipality has made no agreement to the contrary with the owner, he is entitled to recompense for the land surrendered. If a building line, back of the street line, is established, the owner, when in conformity to this line he removes his building, in so far as it projects, is entitled to any damage suffered by the estab- lishment of the line. SEC. 32. Whenever a part of a lot is taken for public use or its use for building restricted by the establishment of a new or changed line for the rectification of a water course, and the part remaining or not restricted is no longer under building police regulations, suit- able for building; and thus there is prevented (a) the erection of buildings on a lot which has not already been built on but which is suitable for the purpose and abuts on an existing street open for public traffic and for the erection of buildings on land abutting on it, or (&) the reconstruction of a building on a lot already built on then the owner may require the municipality to take and pay for the entire lot. 48 Local statutes may provide that and in what cases streets which mainly serve for traffic from place to place (state or district streets and so-called "communication roads") are not to be regarded as "existing streets" in this sense. SEC. 33. When streets have been constructed on elevations, or streams have been rectified on lines, established by plan, and, in consequence, the owners of buildings erected on the street before the new levels were so fixed, or on the stream before the new course was so established, are to their damage prevented from using their prop- erty as heretofore, or, to avoid such damage, are compelled to make changes in their buildings, then they are entitled to compensation from the municipality for their loss. SEC. 34. If in the plan the closing of a public way is provided for, the owner of a lot, whether built on or not, which abuts on this way, and thus loses its access, can demand from the municipality sufficient provision otherwise for his needs, 49 and if this is not offered 48 The subdivisions in this sentence and the symbols indicating the same, not in the law, were for clearness introduced by the author in the translation. 49 Replotting is such a provision ; Rumpelt, Saxon Building Law (4th ed.), p. 151, note 2; see also sec. 54 and ff. 482 THE LAW OF CITY PLANNING AND ZONING him he has the right to demand that the lot be taken with compensa- tion. In the case of lots with buildings on them, the taking may be re- quired when a permit for a new building or a change, etc., in the old building, is refused on account of the prospective closing of the way. SEC. 35. If the establishment or change of a building plan seems advisable, the building police may establish a building prohibition with regard to the district to be planned; with the result that new buildings or changes in buildings will not be approved or will be approved only in so far as they do not make the accomplishment of the new planning more difficult. Public notice of the establishment of the building prohibition shall be given, with an exact description of the territory affected by it. The building prohibition is legally in force from the time notice of it is given, and goes out of force when the final establishment of the building plan is not effected at least within two years from the first notice. SEC. 36. During the building prohibition, as well as after the establishment of the building plan, a division of a lot situated in the area planned is allowed only with the permission of the building police. This permission may be refused when the division affects a building (a) if the requisite division walls along the newly created boundary are not erected or (ft) if, because of the division, the pro- visions with regard to the size of courts and gardens are evaded or the execution of a building plan, or of a replotting (comp. Part V ), would be prevented or made more difficult, or (c) if remnants un- suited for building purposes would remain."" The building police shall without delay notify the authorities in charge of land records of the going into effect of such restriction on land subdivision, with an accurate statement of the lots affected thereby and their land register numbers and owners. SEC. 37. If tracts of land are used for enterprises for which authority for expropriation is granted, then, on demand of those en- titled to expropriate, these tracts are at once excluded from the estab- lished building plan, without prejudice to their obligation to the public with relation to the construction of necessary traffic areas, drainage systems, etc. In this case, however, the land owners concerned in the building plan who by such exclusion suffer a loss or diminution of rights secured to them by the building plan, or are subjected to a greater burden, are, as a part of the expropriation, entitled to claim indemnification from those entitled to expropriate. SEC. 38. When it appears to be expedient for the probable de- velopment of a place to fix in advance the main traffic streets and the main features of the drainage and water supply systems for a * See note 48. ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 483 larger building territory, then the building police, after hearing the local authorities, may establish a suitable extension plan for the locality, in accordance with the methods provided in sees. 21 to 26. This plan shall serve as the basis for the later individual building plans. PART IV. PROVIDING THE LAND FOR BUILDING AND MAINTENANCE OF PUBLIC AREAS AND SEWERS SEC. 39. Whoever builds on land abutting on a street established by building or street line plan must, to a width of 24 m. if the street is to be built up on both sides, or to a width of 15 m. if only on one side, at his own expense and in the dimensions as planned, pro- vide the land for such street, clear it, and without compensation sur- render it to the municipality free of charges, mortgages, and obliga- tions; 60 and also,' in case the municipality does not itself undertake it, as provided in sec. 43, ff., such owner must himself construct such street and sewer it ; but only in so far as the lot abuts on the street ; and therefore, in the case of corner lots, on both sides of it ; and beyond his own lot in so far as necessary to extend the street from crossing to crossing, and in one direction from the lot to be built on, to make connection with a street already serving for public traffic. SEC. 40. Whoever builds on land abutting on a public square must, in accordance with the provisions of sec. 39, furnish the land for and construct that part of the surface of the square destined by the plan to be street, up to 24 m. in width. He must also sur- render that part of his land which is situated in the interior of the square to the municipality ; and is entitled to compensation therefor. The further construction of the interior of the square falls on the municipality (comp. sec. 72). The construction of the square must take place at latest when the streets surrounding it are finished, the entire surface of the square is obtained, and at least a third of the frontage abutting on the square is built up. SEC. 41. The provisions of sees. 39 and 40 are also applicable when and in so far as lots not built on are situated on streets for which, instead of the street lines formerly in force, new street lines are fixed. (Compare sec. 32.) If, however, already existing buildings are struck by the new street lines, the provisions of sec. 31 are to be applied. The obligation to construct the driveway rests, in this case, upon the municipality. SEC. 42. By local statute it may be provided that and to what 60 The obligation of the builder to surrender the necessary land for the street is not a case of expropriation, but of a condition upon the fulfilment of which permission to build is dependent. Rumpelt, Saxon Building Law (4th ed.), p. 158, note I, end. 484 THE LAW OF CITY PLANNING AND ZONING extent the permanent enclosure of a lot shall be held to be building on it within the meaning of sees. 39-41. These provisions do not apply to enclosures which are solely in fulfilment of police obligations. SEC. 43. The streets are to be constructed in the width prescribed by the building plan, in sections extending at least from street inter- section to street intersection. Where filling of the road bed is necessary, the material used shall be free from decayed and other stuff which would pollute the soil or the underground waters. Already existing dirty deposits are to be removed. In other respects the manner of constructing streets, as well as the building of sidewalks, is left to local regulation. SEC. 44. New streets are as a rule to be sewered. The costs arising therefrom, including those for disposal of surface water, sewage, etc., fall to the persons upon whom the costs for the con- struction of the street fall (the owners of the buildings on land abutting on the street). The kind, depth, and capacity of the sewers are fixed by the building police, in so far as there are no local statutes in the matter. SEC. 45. When the necessity arises, the construction of sewers, in the manner prescribed by a sewer plan to be established, which must be approved by the building police, shall be undertaken also for parts of places already built up. On sewered streets every building serving as a residence for human beings must, as a rule, be connected with the sewer. SEC. 46. The municipality has the right to construct streets, bridges, sewers, public wells and water systems, either as contractor at its own expense, reserving the right of recourse against abutters building later (comp. sees. 77-78), or on account of the owners of buildings on land abutting on the street. * Here follow provisions with regard to agreements, estimates, security, etc. SEC. 47. Before the performance, however, of the duties im- posed by sec. 39, ff. a building permit may as an exception be granted when: (a) The owner of the building, on the demand of the building police, surrenders without charge to the municipality the portion of his land necessary for the construction of the streets and squares provided for in the building or street and building line plan, or prospectively necessary for such purposes ; or so surrenders the neces- sary land for the widening of existing streets; and when in addition he furnishes sufficient security for the future fulfilment, according to law, of his other obligations. (6) The connection of the new building with the built-up part of the place is satisfactorily made. * Summarized. ADMINISTRATION IN ITALY, SWEDEN AND GERMANY 485 (c) Provision is made, in accordance with the requirements, to be prescribed by the building police, for good and sufficient drinking and domestic water, as well as for the disposal of surface water and sewage. As a rule use shall be made of the power to grant such a permit only in the case of structures for temporary purposes, of country houses, of structures used for public or public service enterprises, of agricultural buildings, greenhouses, storage structures, factories and other industrial plants, especially such as in operation cause noise or vibration, or use or produce evil smelling or inflammable materials. SEC. 48. As soon as a street is constructed in accordance with the plan and the building ordinances (see sec. 43) and sewered, and also one-third of the land abutting on the street reckoning in both sides of the street is built up, the street shall on the petition of the owners of the buildings, be taken over by the municipality for main- tenance by it. * SEC. 49. Formalities connected with the inspection and accept- ance of the street by the municipality. SEC. 50. Until the municipality has taken over the street, its maintenance, with its accessories, is the concern of the owner of the buildings. Any such owner is bound thereto when at least one building is erected on land abutting on the street. The refusal of the munici- pality to take over the street does not entitle him to close the street. The obligation of maintenance falls upon those abutters who build later, in the proportions prescribed in sec. 77, par. 3. SEC. 51. If the municipality itself has constructed and sewered the street at the expense of the owner of the building, its mainte- ' nance, provided the condition mentioned in sec. 48 has been fulfilled, is transferred at once to the municipality. SEC. 52. Local statutes may provide that the contributions de- volving upon the owner of the building under the foregoing pro- visions shall wholly or partly be taken over by the treasury of the municipality. With regard to raising the costs incurred thereby through assessments of buildings, compare sec. 78. SEC. 53. By police ordinance the cleaning of streets and side- walks of dirt, snow and ice, as well as the sprinkling of sand and ashes, etc., on the sidewalks in frosty weather, may be imposed upon abutters. * (Here follow provisions for procedure where a part of the street or sidewalk is in another municipality.) * Summarized, 4 86 THE LAW OF CITY PLANNING AND ZONING PART V. REPLOTTING AND CONDEMNATION OF LAND SEC. 54. When the proper building development of a tract of land situated within the limits of a building plan is prevented or too much hindered by the position, form or area of lots, a new sub- division of the land for the purpose of obtaining suitable building sites, may be made through change of boundaries, or replotting, even against the will of the owners, if such new subdivision is for the public interest and a petition therefor is made to the building police, either: (a) by the municipal authorities, or (&) by more than half the owners of the lots involved, who to- gether own more than half of the total area involved. SEC. 55. If the replotting is necessary for lots whose buildings have been destroyed by fire, water or other elemental force, the representatives of the municipality can be required to undertake the replotting in the way prescribed in sec. 13. SEC. 56. Single lots, situated in the territory to be replotted, which are built on, or used in a special way (i. e., as market gardens, nurseries, etc.), whose value would make an adjustment with relation to other land much more difficult," may be entirely or in part excluded from the replotting. Even in this case the owner is subject to mere corrections of boundary lines. SEC. 57. The municipal authorities shall establish a replotting plan for the execution of the work of replotting, with the necessary provisions for carrying it out. This plan, however, may also be pro- posed by those petitioning for the replotting, under sec. 54 b. SEC. 58. The lots of all those concerned shall be united in one mass, and the existing public ways that, according to the building plan, are unnecessary, shall be included in the mass. From the mass shall first be set aside the lands destined, by the building plan, for public traffic areas. The building land thereafter remaining shall be so divided that every landowner shall receive the same proportion in value of this remainder as he previously had in the total value of the land before it was replotted. The municipality, in place of the public ways by it thrown into the mass, shall again receive public traffic areas. In the appraisals, which shall be the basis of the re- plotting plan and shall be drawn up with the aid of experts, all actual and legal conditions affecting the value of the lands shall be con- sidered. In place of the lots, individually or in combined area suited for building purposes, are to he assigned one or more lots, so far as * The present value of land used for a market garden, for instance, might he much Rreater than, in all probability, its later value. Tbe land so excluded would be liable for its proportion of the cost of new streets, etc. See Rumpelt, .S<;.r> /?i73 there may be inserted in the scheme regulations for "supple- menting, excluding, or varying the general provisions, and also for dealing with any special circumstances or contingencies for which adequate provision is not made by the general pro- visions," and for varying statutes, byelaws, etc., in that special area. 12 Evidently the statute furnishes little more than a frame work, and the actual planning rules are to be found, for the most part, in the classes of specific schemes. Building Regulation and Zoning. In most, if not all, the schemes there will be found provisions dividing the area into districts in which the amount of open space in propor- tion to buildings and the use of buildings are differently reg- ulated. This regulation, however, is not called zoning, but "the limitation of the number of houses to the acre" and "the allocation of particular sites for particular sorts of buildings." In the limitation of the number of houses to the acre, a "house" or "dwelling house" is variously defined as a building designed for the use of not more than one family, 13 or merely as a building wholly 14 or wholly or principally 15 for human habitation ; and in one case 16 it is provided that any dwelling house, if designed for more than two and not more than four families, shall be reckoned as two buildings; and if designed for more than four families, it shall be reckoned as three buildings. "Acre" in this connection sometimes means net, but more usually gross, acre. The method of limiting the number of houses to the acre varies somewhat in the different schemes, but the principle underlying them all is the same. The provision for that pur- pose in the East Birmingham scheme will serve as a sufficient illustration of that general principle. In that scheme three zones were established each with an average of houses to the gross acre which in that zone as a whole must not be exceeded, "Sec. 55- (2). 18 The East Birmingham, Otley, Birmingham (North Yardley and Stechford) and North Brumsgrove (Rubery) schemes; and the Dun- fermline (Scotland) scheme, in which there is also provision for tene- ments. "The Rochdale (Marland) scheme. 15 Chesterfield (Chester St. area) scheme. "The Ruislip Northwood scheme. 504 THE LAW OF CITY PLANNING AND ZONING the averages being 12, 15 and 18; and a maximum of twenty houses to the acre was fixed which must not be exceeded on any acre within the area covered by the scheme. When at any time the owner of the land in the area desires to erect buildings on any tract belonging to him, he is required to submit plans of the contemplated development of his entire tract ; and in some schemes neighboring owners are required to do likewise if this information is needed at that time. All the land of the owner desiring to build is then divided into units, and the responsible authority sanctions the maximum number of dwellings which may be located on any such unit, or on each acre or other por- tion of it if this seems desirable; and also sanctions the num- ber and defines the character of purpose of other buildings to be erected. The reason for this division of the land into units is both to prevent the owner from erecting more houses than he is entitled to on the tract in question, or on his land as a whole, and to keep him from unduly congesting any particu- lar part of it, while still leaving him as free as possible in the subsequent development of his property. In some schemes, in addition to the limitation of the number of houses to the acre, there are limitations on the amount of the lot that may be covered by certain buildings, and height limitations. Methods of use zoning, or "allocation of particular sites for particular sorts of buildings" also differ in different schemes, partly because practice is still in process of evolution, partly because the areas to be planned differ and it is possible to frame methods especially for them. In the East Birmingham scheme, for instance, there are certain districts primarily for residence and others for manufacturing, but shops, etc., in the residential areas are located by the responsible authority by special order; while in the Ruislip Northwood scheme, there are four classes of use districts, one for dwellings, one for dwellings and shops, one for business and one unrestricted, for manufacturing. Existing uses are allowed to continue ; but, since the areas are undeveloped, the problem of the nonci in- forming uses is not a difficult one. Payment of Costs. The principal expense of carrying out the schemes so far approved is the construction of the ADMINISTRATION IN ENGLAND, CANADA AND FRANCE 5<>5 necessary streets with their sewers, water pipes, light fixtures, etc. As a rule the principal streets are to be built by the responsible authority, the minor ones by the land owners, or by the responsible authority with the right to recover the ex- pense without interest from the land owner when he builds. The act provides 17 that "Where, by the making of any town planning scheme, any property is increased in value, the responsible authority . . . shall be entitled to recover from any person whose property is so increased in value one-half of the amount of that increase." This should be a great aid in the payment of the cost of planning and construction. /Esthetics. One of the general objects which the plan- ning law seeks to accomplish is to promote the "amenity" of the areas planned. 18 The law, also, by stating 19 that no com- pensation shall be due on account of the provisions in a scheme prescribing the "character" of buildings, impliedly authorizes the insertion of aesthetic provisions. In addition, the fourth schedule of the act of 1909 includes as one of the matters to be dealt with by general provisions, "The preservation of objects of historical interest or natural beauty." Thus the planning authorities are given considerable power of aesthetic regula- tion. Administration. From the account already given it is evident that, directly and immediately, the scheme establishes only the most general features of the plan, the details being fixed and subsequently carried out in accordance with adminis- trative methods which are also provided for in the scheme and in many particulars especially devised for the area in ques- tion. Thus the districts where an average of 12, 15 or 18 dwelling houses to the acre is to be maintained, are immediately established by clauses in the scheme itself; but the land units, fixing densities in detail, are established subsequently and by the responsible authority from time to time, the scheme merely creating the machinery for establishing them; and residential and industrial areas are immediately created by the scheme, but "Sec. 58- (3). "Sec. S4-(i). "Sec. S9-(2). 506 THE LAW OF CITY PLANNING AND ZONING the sites of shops, etc., are to be fixed subsequently by the responsible authority. This is true of the planning of many, if not all, the features included in the act and scheme under it, such as streets, building lines, the expense of planning, etc. In many cases there is an appeal from the action of the responsible authority to the Ministry of Health or the courts, or, in one or two cases, to Parliament. 20 "* In any careful study of the English Planning Act, an examination of the various schemes in existence is essential. The American reader will find reprints of several such schemes, in some cases annotated, in Town Planning by George Cadbury, Jr. (Longmans, Green & Co., London and New York, 1915) and The Case for Town Planning by Henry B. Aldridge (published by the National Housing and Town Planning Coun- cil, 1915) ; others are referred to above, and may be obtained by the student desiring them. For the use of the reader who does not have the time or opportunity for consulting the schemes themselves, a sum- mary of the East Birmingham scheme, as amended May 30, 1918, by the East Birmingham Amendment Scheme, is given. SUMMARY OF EAST BIRMINGHAM SCHEME Responsible Authority; Area. The responsible authority is the Corpora- tion of the City of Birmingham. The area selected for planning is shown on maps annexed to the scheme, and, with the areas in two other schemes, includes about half of the undeveloped suburbs within the city limits. Streets; Building Lines. Certain specified new streets, 21 in number (being the main streets) shall be constructed, or widened, by the Corpo- ration. They shall be begun at such times as the Corporation deems best, subject to appeal by anyone deeming himself aggrieved by failure to con- struct. Any such street shall in any event be completed and sewers, water connections, etc., constructed, when not less than 75 per cent, of the total frontage on it has been built up or appropriated as yards, etc., for build- ings. Subject to the right of appeal, all streets made by the land owners shall be constructed in accordance with the scheme and with the require- ments of the Corporation. Building lines shall be fixed as specified in the scheme; and on existing streets where none are indicated the Corpora- tion may establish them when any plan for building on it is submitted to it for approval ; provided that such line shall not be less than 36 feet. or, except by agreement, more than 41 feet, from the center of the street. Where the building lines shown on plans submitted vary from those of the scheme they shall be subject to the approval of the Corporation. The Corporation, whenever the plan of a new street is submitted to it for approval, may require the owners of any lands within the area the development of which will be affected by the construction of such street,. to submit plans showing a scheme for their development. Payment of Cost of Streets. Certain streets shall be built and paid for by the Corporation without recourse to the land owners ; certain others shall be hniit and paid for by the Corporation in the first instance, but every owner benefited shall repay the Corporation an amount equal to his benefit from the street (but not to exceed 3 IDS per yard of his frontage on the street). When his land is taxed as anything but agri- cultural land, the owner has certain rights of appeal if he considers his ADMINISTRATION IN ENGLAND, CANADA AND FRANCE 507 Effect of Scheme. Differently expressed to fit the peculi- arities of the act, the provisions with regard to the effect of the adoption and confirmation of the scheme under the English tax unjust. The rest of the streets shall.be built and paid for, in the first instance, by the land owners without recourse of any sort. Maintenance of Streets, etc. Any street built otherwise than by the Corporation, when finished to its satisfaction, shall be taken over and maintained by the Corporation as Soon as 75 per cent, of its frontage has been built up or appropriated as yards, etc., and sewers, water connec- tions, etc., laid ; but not before that time except by agreement. The Local Government Board may sanction any modification in detail agreed upon at any time between the Corporation and the land owners interested as to the position, construction or widening of any of the streets to be made by the Corporation ; public notice having first been given and an opportunity to object afforded any person so desiring. Certain high- ways are to be stopped up at any time after certain new construction takes place. Trees, Grass, Margins, etc. In certahj streets the Corporation is given power to plant and maintain grass margins, shrubs, trees, etc. ; in others the landowners are required to plant them and maintain them until the street is taken over by the Corporation. Dwelling Houses. "Dwelling houses" shall mean houses designed for not more than one family, with such outbuildings as are reasonably required in connection with them. In reckoning the number of dwelling houses to be erected to an acre, all roads and private open spaces con- structed and set apart or to be constructed or set apart by the land owner, and one-half of the width of highways repairable by the in- habitants at large upon which such lands abut, shall be included in the measurement of the acre; but no account shall be taken of public open spaces acquired otherwise than by gift subsequent to the making of this scheme, or leased by the Corporation, or of the sites of shops and other buildings hereinafter mentioned. The number of dwelling houses on any one acre shall not exceed twenty. When a plan is submitted for approval of the Corporation in regard to the erection of any building, if the owner does not own any other land which is not included in a land unit, the land included in that plan shall constitute a land unit; otherwise the owner shall submit a plan of all his land not included in a unit and the Corporation shall deter- mine the unit. As a rule, units do not exceed from five to seven acres. The owner, before commencing to build on any unit, shall deposit with the Corporation a statement of the number and description of the dwelling houses or other buildings which he desires to erect on any land unit, and the Corporation shall by order sanction the maximum number of dwelling houses which may be erected on any land unit, or on each acre or other portion of the land unit, and sanction the number and define the character or purposes of the other buildings to be erected thereon; but in no case shall the Corporation approve the erection of a greater or require the erection of a less number of dwelling houses on the land unit than will give an average over the land unit of 12, 15 or 18 to the acre in units forming parts of the areas colored light gray, medium, and dark gray, respectively on map B, annexed to the scheme. Any such order is subject to appeal, binds subsequent owners and, in the absence of agreement between them, the Corporation may determine, subject to appeal, the respective rights of seller and purchaser. All orders may, 5<>8 THE LAW OF CITY PLANNING AND ZONING law are in result practically the same as those in other systems with regard to the effect of the establishment of the plan. Thus under the English law the scheme may become effective from on application of the owner, be amended or revoked, provided that the averages for the land unit just mentioned are not exceeded. By the con- sent of the Corporation there may be erected in the gray areas such shops or buildings other than dwelling houses as the Corporation may think fit. Appeals. Any person aggrieved by the determination of a land unit by the Corporation or by any proposal to give or withholding of consent to the erection of shops or buildings other than dwelling houses (but not from consent to erection of shops, etc,), may appeal to the Local Govern- ment Board. Groups, Breaks between Houses, etc. Not more than eight dwelling houses shall in any one place be built under one continuous roof or with- out a break in building from the ground upward. No part of any con- tinuous block of more houses than four shall be built nearer to the owners' boundary than three feet. No break in buildings from the ground upward shall be less in width than six feet ; provided that the Corporation may allow a break of not less than four feet where the break is between detached houses, or a detached house or continuous block of houses and another such block, neither block to contain more than five dwelling houses. No structure shall be so built as to impede ventilation or conduce to make other buildings unfit for human habitation or dangerous or in- jurious to health, or so as to prevent the remedying of any nuisance injurious to health, etc. Demolition of Works. So far as necessary for carrying this scheme into effect the Corporation may demolish or alter any building existing in the area at the date of the approval of this scheme. Lands Set Apart for Purposes of Scheme. Certain specified lands are set apart for playing fields, public walks, pleasure grounds, streets, etc., and the Corporation is authorized to acquire them. Factories. Except on lands colored pink on map B, no factory or workshop shall be erected in the area except with the consent of the Corporation as aforesaid; and except on those lands no manufacturing business shall be carried on therein without such consent; but bricks may be made on land already used for such purpose and any building now used as a factory or workshop may continue to be so used. Any person aggrieved by the withholding of any consent may appeal to the Local Government Board. Outdoor Advertising. No outdoor advertising which interferes with the amenity of the area is allowed ; but the exhibition of traders' names on shops or factories and notices on chapels, churches and mission rooms is permitted. Nuisances. All private gardens, etc., shall be so kept as not to be a nuisance or annoyance to neighbors or to persons using the highways ; and the Corporation may abate such nuisance at the expense of the owner. Adjustment of Boundaries, etc. The Corporation, for the purpose of securing the proper development of any lands within the area in con- nection with any new streets to be constructed by it or with any plans for streets to be constructed by land owners submitted to it for approval, may require an adjustment of boundaries; and if this* is not done by agreement between the Corporation and the land owners, or between the land owners, may apply to the Local Government Hoard for the appoint- ment of an arbitrator. The Corporation may agree to pay, or by arbitration ADMINISTRATION IN ENGLAND, CANADA AND FRANCE 509 the date of the adoption of the resolution of the local authority to prepare a scheme, and compensation for all improvements begun after that date refused unless they are specially author- ized ; the owner of land affected is not paid for the restrictions due to the establishment of the scheme but only for property rights taken, payable when they are taken; and there is no liability for the usual height, area and use restrictions or for the few aesthetic regulations which experience has shown to be essential. Regional Planning. The law provides for the appoint- be obligated to pay, moneys in this connection ; but land owners shall not be obliged to pay as a condition of such arbitration, except with their con- sent. For the purpose of such adjustments the Corporation may purchase interests in land, and sell or lease the same or any part thereof subject to such conditions as it sees fit ; or may appropriate such interests to any public purpose approved by the Local Government Board; and until such disposition may lease the same. Claims, .Entry, etc. Claims under sec. 58 of the act of 1909 for compensation or in respect of any increase in value of property shall be made within twelve months from the date of approval of this scheme by the Board. The Corporation may enter upon any property within the area for purposes of inspection necessitated by provisions of the scheme. Breach of conditions of the scheme is a criminal offense. Works contra- vening the scheme may be removed ; on failure to do work as required by the scheme the Corporation may do it at the expense of the person in default, and agreements not contrary to this scheme may, subject to the approval of the Board, be made by the Corporation to carry it out. Suspension and Application of Acts, etc. Certain statutes, byelaws, regulations, etc., are suspended in the scheme, or are specially varied or applied within it to suit its special circumstances. Land acquired for one purpose and not needed for it may be applied to other purposes. Any general provisions hereafter made under sec. 55 of the act of 1909 are excluded from taking effect as part of the scheme. Obligations under this scheme may be recovered by the Corporation and may be made payable in installments. Appeals. Appeals are provided for by persons aggrieved by delay of the Corporation in commencing or completely constructing new streets, by requirements by it as to manner of street construction or by delay in approving of plans for the same or for building lines. Time Scheme Becomes Effective. The scheme shall go into effect on the day of its approval by the Board, and continue in operation until varied by any subsequent scheme. Approved by the Local Government Board August 13, 1913. (Signed) JOHN BURNS, President. Certificate that objection to the scheme was made by certain interested persons, that the draft was laid before each house of Parliament, and that no action was taken by either house. Size, etc., of Rooms in Dwellings. In the Leeds (Buckingham House) and Dunfermline schemes there are provisions with regard to the mini- mum number, size and height of rooms in dwelling houses, the height of windows in such rooms, etc. 5io THE LAW OF CITY PLANNING AND ZONING ment of a joint authority for the planning of areas within the limits of more than one local authority, but it is only recently that any such joint authority has been appointed. 21 The amendment of 1919 leaves the local authorities somewhat freer to create such an authority than they were under the law as originally passed in 1909. The power of the Ministry of Health to approve schemes with or without modifications gives that body full power to require regional plans or regional pro- visions in local plans whenever it considers them necessary and to insert in schemes any provisions for their execution. Planning in British Empire Outside of England. The English planning act of 1909 is in force in Wales, 22 and with some modifications, in Scotland ; 23 but not in Ireland. 24 The act of 1919 extends to Wales 22 but not to Scotland or Ire- land. 25 A special act has been passed, applicable to Scotland. 28 Planning laws similar to the English law have been passed or have been proposed and seem likely soon to be enacted in many other parts of the British Empire, including Canada.- 7 n With regard to the need, in many cases, see Ministry of Health, South Wales Regional Survey Report, London, His Majesty's Stationery Office, 1921, p. 66. "Acts of 9 Edw. VII, ch. 44 (1909) and 9 and 10 Geo. V., ch. 35 (1919). "Act of 1909, sec. 67. **Act of 1009, sec. 76- (2). "Act of 1919, sec. 51. "Housing, Town Planning, etc. (Scotland) Act, 1919, being 9 and 10 Geo. V, ch. 60. See in this connection Law of Housing and Town Plan- ning in Scotland by M. Cooper and W. E. Whyte, Wm. Hodge & Co., Ltd., Edinburgh, 1920. " The following Canadian laws are modeled on the English act : ALBERTA, 1913, ch. 18 (March 25): MANITOBA, 1916, ch. 114 (March 10) ; NEW BRUNSWICK, 1912 (2 Geo. V), ch. 19 (April 20) ; NOVA SCOTIA, 1912 (2 Geo. V), ch. 6 ( May 3), amended, 1915 (5 Geo. V) ch. 3 (April 23) ; PRINCE EDWARD ISLAND, 1918, ch. 7 (April 26) ; SASKATCHEWAN, 1917, ch. 70 (Dec. 15), amended, 1918-19, ch. 40, 1919-20, ch. 29, now Rev. Stat. 1920, ch. 104. Not modeled on the English act are the planning statutes of ONTARIO, 1917 (7 Geo. V), ch. 44, amended 1918 (8 Geo. V), ch. 38, 1919 (9 Geo. V), ch. 53, 1920 (io-ii Geo. V), ch. 60; see also the Municipal Act, espe- cially the amendment of 1921 (n Geo. V), ch. 63, sec. 10. Other acts more or less modeled on the English act, in various parts of the British Empire, are BOMBAY, 1915, No. I ; MADRAS, act of August 28, 1920; SOUTH AUSTRALIA, 1920 (n Geo. V), No. i is-- ( IVr. o) Apparently not modeled upon the English act is the planning ordi- nance for Jerusalem, the text of which is given in the English magazine, "Garden Cities and Town Planning," for August, 1921, p. 191. ADMINISTRATION IN ENGLAND, CANADA AND FRANCE S Planning in Canada. In Canada, the planning jurisdic- tion of the central government, while potentially it may be con- siderable, has not in fact been exercised except in an advisory capacity. The Dominion has, through its Commission of Conservation, encouraged and aided planning, 28 but the actual work, and the legislation authorizing it, have been left to the individual provinces. Six of these provinces have passed planning laws based' on the English planning law. 28 * Canadian Statutes Modeled on English Law. The earlier Canadian planning statutes modeled on the English law were similar to the original English statute as it was in 1909; the local Canadian authorities being compelled to plan only on order of the provincial authorities in individual cases after hearing. The later Canadian statutes have more and more anticipated the reforms contained in the amendment to the English law, passed in 1919, or suggested in connection with it. Under these later statutes the local authorities are often compelled to adopt either a scheme or planning bylaws, de- scribed as a "partial scheme for the whole of its area," within three years; the responsible authority is entitled to one-half the betterment due not only to the adoption but to the execution of the scheme; the condemnation procedure is amended and the authorities are allowed to take land within two hundred feet of new streets and. other improvements. More freedom is also allowed in development subsequent to the beginning of the planning. This progress was greatly aided by draft legislation prepared and issued by the Dominion Commission of Conser- vation, 29 * and by its assistance and advice generally. In some ways the Canadian legislation is a departure from British precedent. The tendency is to make the local authority the responsible authority, but to authorize and encourage it to appoint a planning commission to exercise most, if not all, the planning powers of the local authority under the act ; the pay- 38 The town planning division of the Commission has been transferred to the National Parks Branch of the Department of the Interior; and its attention will be chiefly devoted to purely Federal matters. 2811 See note 27 on page 510. "The "First Draft" of a Canadian Town Planning- Act, was issued in 1914; the "Revised Edition," in 1915. 512 ment of the expenses of the preparation and adoption of the scheme or bylaws being compulsory on the local authority, but no other levy or borrowing of money being permitted for plan- ning purposes without its consent. Several of the laws mention tramways as one of the matters to be dealt with in schemes or planning bylaws ; and in one or two cases the zoning of central parts of localities is referred to and provided for. In Sas- katchewan, where all subdivisions must be approved by the local authorities or by the central authorities, five per cent of the land subdivided, in addition to streets, etc., must be dedi- cated to public use, and, as in other provinces, the urban authori- ties are given a certain control over development in land out- side, but within a certain distance of, their limits. As an indi- cation of the increasing scope of city planning, it is interesting to note that the Saskatchewan act is entitled "The Town Plan- ning and Rural Development Act" and that in Schedule A of that act, among the matters to be dealt with, is included "clas- sifying land used, intended to be used or suitable to be used for different kinds of agriculture, for horticulture ... or for timber or other resources." 30 Canadian Planning Statutes Not Modeled on the Eng- lish Law. All the planning law of Canada is not based on the English act of 1909. Prior to that date, in the province of Ontario, communities were authorized to pass use zoning regu- lations, and availed themselves of that privilege; and in the Province of Quebec, cities and towns were empowered to make community plans binding upon the authorities and the owners of the land planned; and in Nova Scotia, Halifax adopted its **In the Town Planning scheme for St. John, New Brunswick, Canada (1918), the area is partly within the limits f the city, partly within those of the county of St. John ; the local authority is the City Council of the city for that portion of the area within the city and the Municipal Council of the city and county for that portion outside the citv limits; and the responsible authority is a planning commission created by the scheme fot the purpose, consisting of two members nominated by the City Council, one nominated bv the Council of the citv and county, and the Mayor. Commissioner of Water and Sewerage and Commissioner of Public Works of the city, and the Warden of the city and county. Without their writ- ten consent, the cost of new streets, sewers, etc., shall in no case be re- covered (without interest) from the land owner until the land is sub- divided or used for other than agricultural purposes. ADMINISTRATION IN ENGLAND, CANADA AND FRANCE 513 charter, the planning sections of which have so often been quoted. More developed than those of any other province along individual lines are the planning laws of Ontario, the most im- portant of which are the Planning and Development Act 31 and certain sections of the Municipal Act. 32 Under the Planning and Development Act municipalities may, subject to the ap- proval of the Ontario Railway and Municipal Board, create urban zones consisting of the land outside of, and extending beyond, their limits, in the case of A city, to a distance of five miles, but exclusive of any part of another city; A town, to a distance of three miles, but exclusive of any part of a city or another town; A village, to a distance of three miles, but exclusive of any part of a city or town, or another village. Two or more municipalities may create a common urban zone ; the area of any urban zone may be made larger or smaller than above provided. Within its own limits and the urban zone appurtenant to it, the municipality may, subject to the approval of the Board, make a city plan, which is in effect a plan of streets and parks; and may also approve or disapprove of subdivisions. In the case of land so related to other lands in the vicinity, whether owned by the same or by different owners, that it is expedient that all such lands should be treated as one entire parcel for purposes of subdivision, provision is made for a common plan. The Municipal Act gives municipalities the power, subject to the approval of the Board, to enact height, area and use zoning regulations. The French Planning Law of 1919. It is a remarkable fact that France, whose people above all others love order and method, was for many years the one great nation of Europe without a city planning law. 33 Since 1909 there has been a n 1917, ch. 44, amended by 1918, ch. 38, 1919, ch. 53, 1920, ch. 60. w Amended, 1921. * For the French method, hitherto the only one, of laying out high- ways and establishing building lines, see p. 66 of this work. SM THE LAW OF CITY PLANNING AND ZONING constant effort on the part of French "urbanistes" to obtain such a statute, and many measures to that end have been intro- duced in the French Chambers, only to fail of passage. It was not until the war aroused the French nation to a realization of the evils which bad sanitation in housing and city and village construction was causing throughout France, and the need of the immediate reconstruction of the devastated regions brought them face to face with the fact that only by means of a planning law could they be rebuilt properly, that a planning law appli- cable to all France was enacted. 34 The new French planning law, like the Italian law of 1865, is a development and extension of the law for the expropria- * The planning law, a translation of which will be found on p. 529 of this work, was passed March 14, 1919 (See Bull, des his 1919, Bull. 245, No. 13850, p. 558). It is perhaps the most important of a number of notable laws passed at about this time to aid in reconstruction ; such as : (i) The law of November 27, 1918, Bull. 238, No. 13350, amended March I 1919, Bull. 245, No. 13810, for the resubdivision of land in the devas- tated regions, rendered necessary by the obliteration of land marks by the war, and most useful in replanning along new lines. To supplement this law, the law of July 29, 1921, was passed, providing for excess con- demnation, and making additional provisions for replanning in localities totally or partially destroyed by war. (2) The new excess and zone con- demnation laws, with relation to which see p. 79 of this work. (3) The model sanitary ordinances, issued by the Minister of the Interior, known as "A" and "B" ; whose importance is greatly increased by the fact that all construction paid for by the government in settleme.it of claims for damage caused by the war in the devastated regions must conform to these standards, much higher than any previously set in France, and that the government pays the increased cost thereby incurred. (4) The law of April 17, 1919, Bull. 248, No. 14081, for the repayment of the damages caused by the events of the war. At its basis is a principle new in juris- prudence. Heretofore, in all countries and all times, the state at war has refused to hold itself liable for any damage caused by the enemy, and has by no means been willing to take responsibility for all the acts of its own citizens performed at its direction and command. Often, it is true, governments have made payments to war sufferers, but always par- tially and more or less capriciously as a charity rather than as the ful- filment of a legal duty. In the present law, however (art. i), "The Re- public proclaims the equality and solidarity of all Frenchmen with regard to the burdens of the war" and (art. 2) assumes liability for all the "cer- tain, material and direct damages" caused to them and to friendly aliens by it. The working out of this new principle in conformity with the ex- isting principles of law, is full of interest to the student of jurisprudence. The law does not, of course, relieve Germany and its allies from any liability incurred by them, although it may make the French Government, which as between itself and its inhabitants has assumed the burden, the party to be repaid. There is a similar law in Belgium, passed May 10, 1919, and amended May 15, and June I, 1919, Pasinomie, 1919, pp. 202, 215 and 230. ADMINISTRATION IN ENGLAND, CANADA AND FRANCE 515 tion of land. Under it the following communities are required within three years of the promulgation of the present law to have planning schemes formulated and in force : Every city of 10,000 inhabitants or over; All the communes of the department of the Seine; Cities of more than 5,000 and less than 10,000 inhabitants whose population has increased more than ten per cent in the interval between two consecutive quinquennial censuses; Seaside and other pleasure and health resorts whose popu- lation, of whatever size, increases fifty per cent or more at cer- tain seasons of the year ; Settlements, of whatever size, of a picturesque, artistic or historic character, listed as such by the departmental commis- sion on natural sites and monuments ; Land or building developments by associations, corpora- tions or individuals. This scheme shall include: 1. A plan fixing the direction, width and character of highways to be laid out or modified, and the location, extent and plan of squares, public gardens, amusement grounds, parks and the various open spaces; and indicating the reserve lands, whether wooded or otherwise, and the sites of future public buildings, utilities and other services. 2. A program of the hygienic, archaeological and aes- thetic servitudes 35 to be created, as well as other conditions to which the scheme is to be subject, especially the open spaces to be preserved, the height of structures, the provisions for drink- ing water, sewers, the disposition of wastes, and, if necessary, the sanitation of the soil. 3. The draft of an order 36 of the mayor, made after con- sultation with the municipal council, fixing the application of the above measures to the plan and program. When any settlement, of whatever size, has been totally or partially destroyed by war, fire, earthquake, or any other catastrophe, the municipality shall, within three months of the 86 Known as easements in the common law of the English-speaking les. "Projet d'arrete." 5 i6 THE LAW OF CITY PLANNING AND ZONING date of that event, draw up a general plan of building and street lines and grades of the part to be reconstructed, accom- panied by an outline of a planning scheme. Until the plan of alignment and grades has been approved, nothing but tem- porary shelters shall be erected without the authority of the Prefect of the department given after consultation with the departmental planning commission provided for below. The expenses of the required schemes and plans in the case of communities destroyed by catastrophe and those listed as picturesque, artistic or historic, shall be borne by the state ; in other cases subventions may be granted in accordance with reg- ulations to be drawn up by the state. In each department there shall be created, for the gui- dance of the communes in their planning, a departmental plan- ning commission composed of the local bodies in charge of hygiene, natural sites and monuments, and civic buildings, and four mayors appointed by the state. This commission shall, of its own motion, or on their demand, hear the delegates of the departmental societies of architecture, art, archaeology, his- tory, agriculture, commerce, industry and sport, the mayors of the cities or communes interested, and the representative of the transportation companies and the various utilities and services of the state. The commission may add to its number reporters who shall be heard on the matters investigated by them. This commis- sion shall give its advice with regard to: 1. Schemes to be adopted by the municipalities. 2. Derogations from the general principles of planning laid down by the superior commission provided for below, nec- essary on account of special difficulties or local needs. 3. The aesthetic or hygenic servitudes incidental to the schemes submitted to it. 4. All other matters referred to it by the Prefect of the department. At the Ministry of the Interior of the state there shall created a superior planning commission of thirty member' composed of senators, deputies, counsellors of state, director? of various state functions and delegates from state societies, ADMINISTRATION IN ENGLAND, CANADA AND FRANCE 517 etc., and four city planners, architects, or others specially qual- ified. This commission shall establish general planning rules and regulations and shall give its advice on all schemes con- sidered on its own motion or referred to it by the Minister in charge of the Liberated Regions. When a scheme has been drawn up it shall, after the advice of the sanitary authorities has been taken, be submitted to: 1. Examination by the Municipal Council; 2. The usual "inquest" 37 preliminary to the declaration of public utility by the Council of State or other state authority as required in expropriations; at which all parties interested have the right to be heard, and objections are referred first to the Municipal Council and then to the Prefect for opinion and preliminary decision. 3. To the examination of the departmental planning com- mission. The Municipal Council shall then give its decision on the matter as a whole ; which shall thereupon go to the Council of State, where the town contains 10,000 inhabitants or more, otherwise to the Prefect for final action; approval taking the form of a declaration that the plan is of public utility. If in any step in the planning the city does not act, the state is given power to do so, and an appropriate penalty is visited on the city. If a scheme interests more than one commune, or transcends the department, intercommunal or inter-departmen- tal action and control are provided for. Anyone creating or developing a group of houses is re- quired first to deposit the plan with the authorities and obtain the approval of the Prefect of the department. After a plan is declared of public utility, or in the case of private developments is approved by the Prefect, the owners of lands abutting on proposed highways or squares shall con- form to the lines established and shall not erect new structures without a permit from the mayor. 17 Public hearing. 5i8 THE LAW OF CITY PLANNING AND ZONING Note H THE ENGLISH AND FRENCH GENERAL PLANNING LAWS No. i THE ENGLISH TOWN PLANNING ACTS, 1909 AND 1919 The first English town planning act was passed 1909 as Part II of the Housing, Town Planning, etc., Act, 1909," Part I of this act consisting of amendments to the mass of previous housing legisla- tion codified in 1890 and subsequent housing laws up to 1909. In 1919 the Housing, Town Planning, etc., Act, 1919," was enacted. That act comprises a first part amending the housing laws of 1890- 1909 and a second part amending the planning law. The housing legislation is now referred to as the Housing Acts, 1890 to 1919; and the planning legislation as the Town Planning Acts, 1909 and ioi').* It is with the planning acts that this work is concerned. Part II of the act of 1909 as amended by the act of 1919, is therefore given in full with the exception of a few sections of no interest to the ordi- nary reader or student in this country, which are summarized. For the most part the housing law, closely connected with the planning provisions, but an important and voluminous subject in itself, is omitted, as is housing in general throughout this work. An excep- tion, however, has been made of section 9. (i) of the housing por- tion of the act of 1919, and the schedule relating to it, on account of its importance in the replanning of slum areas. 41 HOUSING, TOWN PLANNING, ETC., ACT, 1919 Provisions as to the Acquisition and Disposal of Land, etc. SEC. 9. Prorisions as to Assessment of Compensation, (i) Where land included in any scheme made or to be made under Part I. or Part II. of the principal Act 41 (other than land included in such a scheme only for the purpose of making the scheme efficient and not on account of the sanitary condition of the premises thereon or "9 Edward VII, ch. 44. **9 and 10 George V, ch. 35. **See sec. 52 of the act of 1919. 41 As a rule no effort is here made, for fear of confusing the reader, to distinguish between the text of the act of 1009. and that of 1919, the stu- dent wishing to do so, being referred to the original acts, which are rru'lily accessible. For clearness, however, certain sections of the acts of 1909 and 1919 have been so designated. "I. e., the act of 1909. ADMINISTRATION IN ENGLAND, CANADA AND FRANCE 519 of those premises being dangerous or prejudicial to health) is acquired compulsorily, the compensation to be paid for the land, including any buildings thereon, shall be the value at the time the valuation is made of the land as a site cleared of buildings and available for develop- ment in accordance with the requirements of the building byelaws for the time being in force in the district : Provided that, if in the opinion of the Local Government Board it is necessary that provision should be made by the scheme for the re-housing of persons of the working classes on the land or part thereof when cleared, or that the land or a part thereof when cleared should be laid out as an open space, the compensation payable to all persons interested in any land included in the scheme (other than as aforesaid) for their respective interests therein shall be reduced by an amount ascertained in accordance with the rules set forth in the First Schedule to this Act. FIRST SCHEDULE Rules for Determining the Amount of Reduction of Compensation (a) The value of the whole of the land included in the scheme shall first be ascertained on the basis of its value as a cleared site available for development in accordance with the requirements of the building byelaws in force in the district. (&) The value of the whole of the said land shall next be ascer- tained on the basis of its value as a cleared site subject to the re- quirements of the scheme as to the provision to be made for the re- housing of persons of the working-classes or the laying out of open spaces on the land or any part thereof. (c) The difference between the amounts ascertained under para- graph (a) and paragraph (6) shall then be computed. (d) The amount by which the compensation payable for the re- spective interests in the land to which section 9. (i) of this Act applies, as ascertained in accordance with the principle laid down in that section, is to be reduced shall be a fraction thereof equal to the amount arrived at under paragraph (c) when divided by the amount arrived at under paragraph (a). TOWN PLANNING ACTS, IQOQ AND IQIQ _54. (i) 43 Preparation and Approval of Town Planning Scheme. A town planning scheme may be made in accordance with the provisions of this Part of this Act as respects any land which is in course of development or appears likely to be used for building "This is the first section of Part II of the Act (of 1009). Part II is the town planning portion of the Act; Part I, with its fifty-three sec- tions being devoted to housing. 5 *> THE LAW OF CITY PLANNING AND ZONING purposes, with the general object of securing proper sanitary condi- tions, amenity, and convenience in connection with the laying out and use of the land, and of any neighboring lands. Provided that where a piece of land already built upon or a piece of land not likely to be used for building purposes is so situate with respect to any land likely to be used for building purposes that the general object of the scheme would be better secured by its in- clusion in any town planning scheme made with respect to the last mentioned land, the scheme may include such piece of land as afore- said, and may provide for the demolition or alteration of any build- ings thereon so far as may be necessary for carrying the scheme into effect. (2) ** A local authority within the meaning of this Part of this Act may by resolution decide (a) to prepare a town planning scheme with reference to any land within or in the neighborhood of their area in regard to which a scheme may be made under this Act ; or (&) to adopt, with or without any modifications, any town plan- ning scheme proposed by all or any of the owners of any land with respect to which the local" authority are them- selves by this Act authorized to prepare a scheme: Provided that () if any such resolution of a local authority extends to land not within the area of that local authority, the resolution shall not have effect until it is approved by the Local Gov- ernment Board, and the Board may, in giving their ap- proval, vary the extent of the land to be included within the area of the proposed town planning scheme; and (if) where any local authorities are desirous of acting jointly in the preparation or adoption of a town planning scheme, they may concur in appointing out of their respective bodies a joint committee for the purpose, and in conferring with or without restrictions on any such committee any powers which the appointing councils might exercise for the pur- pose, and the provisions of sections fifty-seven and fifty- eight of the Local Government Act, 1894, in regard to joint committees, shall, with the necessary modifications, apply to any joint committee so appointed. (4) A town planning scheme prepared or adopted by a local authority shall not have effect, unless it is approved by order of the 44 Paragraphs (2) and (3) of the act of 1909 were repealed by the act of 1919; which substituted paragraph (2), as above, for paragraph (2) in the old act. The purpose of the repeal and substitution was to remove the necessity, formerly existing under these paragraphs as they were in the act of 1909. for the local authority to obtain the previous authorization of the Local Government Board to the preparation or adoption of a town planning scheme; see sec. 42 of the act of 1919. ADMINISTRATION IN ENGLAND, CANADA AND FRANCE 521 Local Government Board, and the Board may refuse to approve any scheme except with such modifications and subject to such conditions as they think fit to impose : (5) A town planning scheme, when approved by the Local Gov- ernment Board, shall have effect as if it were enacted in this Act. (6) A town planning scheme may be varied or revoked by a subsequent scheme prepared or adopted and approved in accordance with this Part of this Act, and the Local Government Board, on the application of the responsible authority, or of any other person appear- ing to them to be interested, may by order revoke a town planning scheme if they think that under the special circumstances of the case the scheme should be so revoked. (7) The expression "land likely to be used for building pur- poses" shall include any land likely to be used as, or for the purpose of providing, open spaces, roads, streets, parks, pleasure or recreation grounds, or for the purpose of executing any work upon or under the land incidental to a town planning scheme, whether in the nature of a building work or not, and the decision of the Local Government Board, whether land is likely to be used for building purposes or not, shall be final. 55. (i) Contents of Town Planning Schemes. The Local Gov- ernment Board may prescribe a set of general provisions (or sepa- rate sets of general provisions adapted for areas of any special character) for carrying out the general objects of town planning schemes, and in particular for dealing with the matters set out in the Fourth Schedule to this Act, and the general provisions, or set of general provisions appropriate to the area for which a town plan- ning scheme is made, shall take effect as part of every scheme, except so far as provision is made by the scheme as approved by the Board for the variation or exclusion of any of those provisions. (2) Special provisions shall in addition be inserted in every town planning scheme defining in such manner as may be prescribed by regulations under this Part of this Act the area to which the scheme is to apply, and the authority who are to be responsible for enforcing the observance of the scheme, and for the execution of any works which under the scheme or this Part of this Act are to be executed by a local authority (in this Part of this Act referred to as the responsible authority), and providing for any matters which may be dealt with by general provisions, and otherwise supplement- ing, excluding, or varying the general provisions, and also for deal- ing with any special circumstances or contingencies for which ade- quate provision is not made by the general provisions, and for sus- pending, so far as necessary for the proper carrying out of the scheme, any statutory enactments, byelaws, regulations, or other pro- visions, under whatever authority made, which are in operation in the area included in the scheme : $22 THE LAW OF CITY PLANNING AND ZONING (3) Where land included in a town planning scheme is in the area of more than one local authority, or is in the area of a local authority by whom the scheme was not prepared, the responsible authority may be one of those local authorities, or for certain pur- poses of the scheme one local authority and for certain purposes another local authority, or a joint body constituted specially for the purpose by the scheme, and all necessary provisions may be made by the scheme for constituting the joint body and giving them the necessary powers and duties : Provided that, except with the consent of the London County Council, no other local authority shall, as respects any land in the county of London, prepare or be responsible for enforcing the observ- ance of a town planning scheme under this Part of this Act, or for the execution of any works which under the scheme or this Part of this Act are to be executed by a local authority. 56. (i) Procedure Regulations of the Local Government Board. The Local Government Board may make regulations for regulating generally the procedure to be adopted with respect to the prepara- tion or adoption of a town planning scheme, obtaining the ap- proval of the Board to a scheme so prepared or adopted, the varia- tion or revocation of a scheme, and any inquiries, reports, notices, or other matters required in connection with the preparation or adop- tion or the approval of the scheme or preliminary thereto, or in re- lation to the carrying out of the scheme or enforcing the observance of the provisions thereof, or the variation or revocation of the scheme. The power of the Local Government Board of making regulations under section 56 of the Act of 1909 shall include power to make regu- lations as to the procedure consequent on the passing of a resolution by a local authority to prepare or adopt a town planning scheme, and provision shall be made by those regulations for securing that a local authority after passing such a resolution shall proceed with all rea- sonable speed with the preparation or adoption of the town planning scheme, and shall comply with any regulations as to steps to be taken for that purpose, including provisions enabling the Local Govern- ment Board in the case of default or dilatoriness on the part of the local authority to act in the place and at the expense of the local authority. (2) Provision shall be made by those regulations (a) for securing co-operation on the part of the local authority with the owners and other persons interested in the land proposed to be included in the scheme by such means as may be provided by the regulations ; (6) for securing that notice of the proposal to prepare or adopt the scheme should be given at the earliest stage possible to any coun- cil interested in the land; and ADMINISTRATION IN ENGLAND, CANADA AND FRANCE 523 (c) for dealing with the other matters mentioned in the Fifth Schedule to this Act. For securing that the council of the county in which any land proposed to be included in a town planning scheme is situated (i) shall be furnished with a notice of any proposal to prepare or adopt such a scheme and with a copy of the draft scheme before the scheme is made, and (2) shall be entitled to be heard at any public local inquiry held by the Local Government Board in regard to the scheme. 46 57. (i) Power to Enforce Scheme. The responsible authority may at any time, after giving such notice as may be provided by a town planning scheme and in accordance with the provisions of the scheme (a) remove, pull down, or alter any building or other work in the area included in the scheme which is such as to contravene the scheme, or in the erection or carrying out of which any provision of the scheme has not been complied with; or (6) execute any work which it is the duty of any person to execute under the scheme in any case where it appears to the au- thority that delay in the execution of the work would prejudice the efficient operation of the scheme. (2) Any expenses incurred by a responsible authority under this section may be recovered from the persons in default in such manner and subject to such conditions as may be provided by the scheme. (3) If any question arises whether any building or work con- travenes a town planning scheme, or whether any provision of a town planning scheme is not complied with in the erection or carry- ing out of any such building or work, that question shall be referred to the Local Government Board, and shall, unless the parties other- wise agree, be determined by the Board as arbitrators, and the de- cision of the Board shall be final and conclusive and binding on all persons. 58. ( i ) Compensation in Respect of Property Injuriously Affected by Scheme, etc. Any person whose property is injuriously affected by the making of a town planning scheme shall, if he makes a claim for the purpose within the time (if any) limited by the scheme, not being less than three months after the date when notice of the approval of the scheme is published in the manner prescribed by regulations made by the Local Government Board, be entitled to obtain compensation in respect thereof from the responsible authority. (2) A person shall not be entitled to obtain compensation under this section on account of any building erected on, or contract made or other thing done with respect to, land included in a scheme, after the date of the resolution of the local authority to prepare or adopt "This division, inserted by the act of 1919, is virtually (d), but is not designated in this or any way in the act. 524 THE LAW OF CITY PLANNING AND ZONING the scheme or after the date when such resolution takes effect as the case may be, or after such other time as the Local Government Board may fix for the purpose: Provided that this provision shall not apply as respects any work done before the date of the approval of the scheme for the purpose of finishing a building begun or of carrying out a contract entered into before such date or other time as aforesaid. Power to Permit Development of Estates Pending Preparation and Approval of Town Planning Schemes. The Local Government Board may by special or general order provide that where a resolu- tion to prepare or adopt a town planning scheme has been passed, or where before the passing of this Act, 4 * the preparation or adop- tion of a town planning scheme has been authorised, the development of estates and building operations may be permitted to proceed pend- ing the preparation or adoption and approval of the town planning scheme, subject to such conditions as may be prescribed by the order, and where such permission has been given the provisions of subsec- tion (2) of section 58 of the Act of 1909 which relates to the rights of compensation shall have effect as if the following proviso were added thereto: Provided also that this provision shall not apply as respects any building erected, contract made, or other thing done in accordance with a permission granted in pursuance of an order of the Local Government Board allowing the development of estates and building operations to proceed pending the preparation or adoption and ap- proval of the scheme, and the carrying out of works so permitted shall not prejudice any claim of any person to compensation in re- spect of property injuriously affected by the making of the scheme, (3) Where, by the making of any town planning scheme, any property is increased in value, the responsible authority, if they make a claim for the purpose within the time (if any) limited by the scheme (not being less than three months after the date when notice of the approval of the scheme is first published in the manner pre- scribed by regulations made by the Local Government Board), shall be entitled to recover from any person whose property is so increased in value one-half of the amount of that increase. (4) Any question as to whether any property is injuriously af- fected or increased in value within the meaning of this section, and as to the amount and manner of payment (whether by installments or otherwise) of the sum which is to be paid as compensation under this section or which the responsible authority are entitled to recover from a person whose property is increased in value, shall be deter- mined by the arbitration of a single arbitrator appointed by the Local ** I. c , the act of 1919, this paragraph being an amendment of the act of 1909, made by the act of 1919. ADMINISTRATION IN ENGLAND, CANADA AND FRANCE 525 Government Board, unless the parties agree on some other method of determination. (5) Any amount due under this section as compensation to a person aggrieved from a responsible authority, or to a responsible authority from a person whose property is increased in value, may be recovered summarily as a civil debt. (6) Where a town planning scheme is revoked by an order of the Local Government Board under this Act, any person who has incurred expenditure for the purpose of complying with the scheme shall be entitled to compensation in accordance with this section in so far as any such expenditure is rendered abortive by reason of the revocation of the scheme. 59. (i) Exclusion or Limitation of Compensation in Certain Cases. Where property is alleged to be injuriously affected by reason of any provisions contained in a town planning scheme, no compensa- tion shall be paid in respect thereof if or so far as the provisions are such as would have been enforceable if they had been contained in byelaws made by the local authority. (2) Property shall not be deemed to be injuriously affected by reason of the making of any provisions inserted in a town planning scheme, which prescribe the space about buildings or limit the num- ber of buildings to be erected, or prescribe the height or character of buildings, and which the Local Government Board, having regard to the nature and situation of the land affected by the provisions, con- sider reasonable for the purpose. (3) Where a person is entitled to compensation under this Part of this Act in respect of any matter or thing, and he would be entitled to compensation in respect of the same matter or thing under any other enactment, he shall not be entitled to compensation in respect of that matter or thing both under this Act and under that other enactment, and shall not be entitled to any greater compensa- tion under this Act than he would be entitled to under the other enactment. 60. (i) Acquisition by Local Authorities of Land Comprised in a Scheme. The responsible authority may, for the purpose of a town planning scheme, purchase any land comprised in such scheme by agreement, or be authorised to purchase any such land compulsorily in the same manner and subject to the same provisions (includ- ing any provision authorising the Local Government Board to give directions as to the payment and application of any purchase money or compensation) as a local authority may purchase or be authorised to purchase land situate in an urban district for the purposes of Part III. of the Housing of the Working Classes Act, 1890, as amended by sections two and forty-five of this Act.* T 47 I. e., the act of 1909. 26 THE LAW OF CITY PLANNING AND ZONING (2) Where land included within the area of a local authority is comprised in a town planning scheme, and the local authority are not the responsible authority, the local authority may purchase or be authorised to purchase that land in the same manner as the respon- sible authority. 61. (i) Power of Local Government Board in Case of Default of Local Authority to Make or Execute Town Planning Scheme. If the Local Government Board are satisfied on any representation, after holding a public local inquiry, that a local authority (a) have failed to take the requisite steps for having a satis- factory town planning scheme prepared and approved in a case where a town planning scheme ought to be made ; or (&) have failed to adopt any scheme proposed by owners of any land in a case where the scheme ought to be adopted; or (c) have unreasonably refused to consent to any modifications or conditions imposed by the Board; the Board may, as the case requires, order the local authority to pre- pare and submit for the approval of the Board such a town planning scheme, or to adopt the scheme, or to consent to the modifications or conditions so inserted: Provided that, where the representation is that a local authority have failed to adopt a scheme, the Local Government Board, in lieu of making such an order as aforesaid, may approve the proposed scheme, subject to such modifications or conditions, if any, as the Board think fit, and thereupon the scheme shall have effect as if it had been adopted by the local authority and approved by the Board. (2) If the Local Government Board are satisfied on any repre- sentation, after holding a local inquiry, that a responsible authority have failed to enforce effectively the observance of a scheme which has been confirmed, or any provisions thereof, or to execute any works which under the scheme or this Part of this Act 4t * the authority is required to execute, the Board may order that authority to do all things necessary for enforcing the observance of the scheme or any provisions thereof effectively, or for executing any works which under the scheme or this Part of this Act 4U the authority is required to execute. (3) Any order under this section may be enforced by man- damus. PART IV SUPPLEMENTAL 73. (i) Provisions as to Commons and Open Spaces. Where any scheme or order under the Housing Acts of Part II. of this ' I. e., the act of 1909. ADMINISTRATION IN ENGLAND, CANADA AND FRANCE 527 Act authorises the acquisition or appropriation to any other pur- pose of any land forming part of any common, open space, or allot- ment, the scheme or order, so far as it relates to the acquisition or appropriation of such land, shall be provisional only, and shall not have effect unless and until it is confirmed by Parliament, except where the scheme or order provides for giving in exchange for such land other land, not being less in area, certified by the Local Govern- ment Board after consultation with the Board of Agriculture and Fisheries to be equally advantageous to the persons, if any, entitled to commonable or other rights and to the public. ACT OF 1919 46. (i) Preparation of Town Planning Schemes. The council of every borough or other urban district containing on the first day of January nineteen hundred and twenty-three a population according to the last census for the time being of more than twenty thousand shall, within three years after that date, prepare and sub- mit to the Local Government Board a town planning scheme in respect of all land within the borough or urban district in respect of which a town planning scheme may be made under the Act of 1909. (2) Without prejudice to the powers of the council under the Act of 1909, every scheme to which this section applies shall deal with such matters as may be determined by regulations to be made by the Local Government Board. (3) Every regulation so made shall be laid before both Houses of Parliament as soon as may be after it is made, and, if an address is presented by either House within twenty-one days on which that House has sat next after any such regulation is laid before it pray- ing that the regulation may be annulled, His Majesty in Council may annul the regulation, but without prejudice to the validity of anything previously done thereunder. 47. (i) Power of Local Government Board to Require Town Planning Scheme. Where the Local Government Board are satis- fied after holding a public local inquiry that a town planning scheme ought to be made by a local authority as respects any land in regard to which a town planning scheme may be made under the Act of 1909, the Board may by order, require the local authority to prepare and submit for their approval such a scheme, and, if the scheme is approved by the Board, to do all things necessary for enforcing the observance of the scheme or any provisions thereof effectively, and for executing any works which, under the scheme or under Part II. of the Act of 1909, the authority are required to execute. (2) Any order made by the Local Government Board under this section shall have the same effect as a resolution of the local 528 THE LAW OF CITY PLANNING AND ZONING authority deciding to prepare a town planning scheme in respect of the area in regard to which the order is made. (3) If the local authority fail to prepare a scheme to the satis- faction of the Board within such time as may be prescribed by the order, or to enforce the observance of the scheme or any provisions thereof effectively, or to execute any such works as aforesaid, the Board may themselves act, or in the case of a borough or other urban district, the population of which is less than 20,000, or of a rural district, may, if the Board think fit, by order, empower the county council to act in the place and at the expense of the local authority. FOURTH SCHEDULE MATTERS TO BE DEALT WITH BY GENERAL PROVISIONS PRESCRIBED BY THE LOCAL GOVERNMENT BOARD 1. Streets, roads, and other ways, and stopping up, or diversion of existing highways. 2. Buildings, structures, and erections. 3. Open spaces, private and public. 4. The preservation of objects of historical interest or natural beauty. 5. Sewerage, drainage, and sewage disposal. 6. Lighting. 7. Water supply. 8. Ancillary or consequential works. 9. Extinction or variation of private rights of way and other easements. 10. Dealing with or disposal of land acquired by the responsible authority or by a local authority. 11. Power of entry and inspection. 12. Power of the responsible authority to remove, alter, or demolish any obstructive work. 13. Power of the responsible authority to make agreements with owners, and of owners to make agreements with one another. 14. Power of the responsible authority or a local authority to accept any money or property for the furtherance of the object of any town planning scheme, and provision for regulating the admin- istration of any such money or property and for the exemption of any assurance with respect to money or property so accepted from enrollment under the Mortmain and Charitable Uses Act, 1888. 15. Application with the necessary modifications and adaptations of statutory enactments. Act of 1909, as amended by Act of 1919. ADMINISTRATION IN ENGLAND, CANADA AND FRANCE 529 16. Carrying out and supplementing the provisions of this Act for enforcing schemes. 17. Limitation of time for operation of scheme. 18. Cooperation of the responsible authority with the owners of land included in the scheme or other persons interested. 19. Charging on the inheritance of any land the value of which is increased by the operation of a town-planning scheme the sum required to be paid in respect of that increase, and for that purpose applying, with the necessary adaptations, the provisions of any enact- ments dealing with charges for improvements of land. No. 2. THE FRENCH PLANNING LAW OF 1919 ART. I. Every city of 10,000 inhabitants and over shall, without prejudice to the general plan of street and building lines and grades required of all communes by art. 136, par. 13 of the law of April 5, 1884, prepare a scheme of subdivision, adornment and extension. 51 This scheme, which shall be established within three years of the promulgation of the present law, shall include: I St. A plan which shall fix the direction, the width and the character of highways to be laid out or changed, determine the loca- tion, extent and plan of squares, public gardens, play grounds, parks, the various sorts of open spaces, and indicate the reservations, wooded or otherwise, to be established, as well as the sites of public monuments, buildings, utilities and other services; 2nd. A program determining the public hygienic, archaeological and aesthetic servitudes 51a and all the other conditions relative thereto, especially the open spaces to be reserved, the height of structures, as well as the provisions for the distribution of drinking water, the sewers, the disposition of waste products, and, if necessary, the sani- tation of the soil; 3rd. The draft of an order w of the Mayor, made with the advice of the Municipal Council, fixing the conditions of the application of the measures to be taken to the plan and to the program. * Passed March 14, 1919, to be found in the Bulletin des lois for that year, p. 558 (No. 13850). "The reference should be to paragraph 14. "I. e., a city plan. "" Known as easements in our law. 10 "Pro jet d'arrete." 530 THE LAW OF CITY PLANNING AND ZONING The same duties are imposed: ist. On all the communes of the Department of the Seine; 2nd. On cities of over 5,000 but less than 10,000 inhabitants, the population of which has increased more than 10 per cent in the interval between two consecutive quinquennial censuses; 3rd. On seaside, mineral spring and other pleasure and health resorts whose population, of whatever size, increases 50 per cent or more at certain seasons of the year.** 4th. On settlements, of whatever size, of a picturesque, artistic or historic character, inscribed in a list to be drawn up by the Depart- mental Commissions on Natural Sites and Monuments created by the law of April 21, 1906; M 5th. On groups of houses or lots made or developed by associa- tions, corporations or individuals. ART. 2. When a settlement, whatever its population, has been totally or partially destroyed by acts of war, fire, earthquake or any other catastrophe, the municipality shall establish, within three months, the general plan of street and building lines and grades of the districts to be reconstructed, as provided by the law of April 5, 1884, accompanied by a summary of the scheme of subdivision, adorn- ment and extension provided for in art. I of the present law. An order of the Prefect, made after having received the advice of the commission instituted by art. 4 of the present law, shall deter- mine whether the settlement is within the conditions laid down in the first sentence above and fix the date from which the time runs. Until the plan of building and street lines and of grades is ap- proved, no structure shall be erected except temporary shelters with- out the authority of the Prefect given after the advice of the com- mission instituted by art. 4 below has been taken. ART. 3. The costs of preparing the plans and schemes provided for in the preceding articles are a state charge in so far as the com- munes indicated in art. 2 above are concerned, notwithstanding the principle laid down by art. 136, par. 13"* of the Municipal Law of April 5, 1884. The same is true of the settlements mentioned in No. 4 of the enumeration contained in art. I of the present law. For other communes subventions may be accorded by decision of the Minister of the Interior, rendered on the application of the Pre- * Under the French law of April 13, 1910, a decree of the Council of State, rendered after hearing the Academy of Medicine, the Superior Council of Public Hygiene of France and the Permanent Commission on such resorts, must be obtained, prior to founding them ; and on petition of the commune a special tax on non-residents may be authorized for their development. ** See p. 422 of this work. **Here again, the reference should be to par. 14. ADMINISTRATION IN ENGLAND, CANADA AND FRANCE 53* feet of the department and charged to the credits voted for that pur- pose in the budget of the Minister of the Interior, to an amount to be fixed by a decree rendered in the form of rules of public admin- istration. ART. 4. In the prefecture of each department there shall be created a commission, to be presided over by the Prefect or his rep- resentative and called the "Departmental Commission for the Plan- ning of Cities and Villages," composed of the Departmental Coun- cil of Hygiene, the Departmental Commission on Natural Sites and Monuments, the Departmental Council on Civic Buildings, and four mayors to be named by the General Council. 5 * This commission shall hear the delegates of the societies of archi- tecture, art, archaeology, history, agriculture, commerce, industry and sport and of the transportation companies of the department, as well as the mayors of the cities or communes interested, and the repre- sentatives of the different public utilities and other services of the state which it considers necessary to convoke and who ask an oppor- tunity to present their views. It may also add reporters, 67 with the right to be heard with regard to the matters on which they report. This commission shall collect all the necessary documents of such a nature as to aid and guide the communes in the preparation of their schemes. It shall give its opinion: I st. With regard to the schemes adopted by the municipalities. 2nd. With regard to the departures which, on account of special difficulties or local needs, must be made from the principles laid down by the Superior Council created by art. 5 below. 3rd. With regard to the aesthetic or hygienic servitudes inci- dental to the schemes which are submitted to it. 4th. With regard to all matters which the prefect considers expedient to submit to it. ART. 5. There shall be instituted at the Ministry of the Interior, under the presidency of the Minister or his deputy, and the vice presidency of the Minister in charge of the Liberated Regions or his deputy, a Superior Planning Commission composed of: Two senators, chosen by the Senate; Four deputies, chosen by the Chamber of Deputies; Two Counsellors of State, in ordinary service, named by their colleagues ; * "Conseil General." M The French word is "rapporteurs." They are persons with special information in particular lines and are usually, as here, given the right not only to report but to vote on the matter with relation to which they are employed. They need not be, technically, experts. 532 THE LAW OF CITY PLANNING AND ZONING Four mayors, of whom three shall be named by the Minister of the Interior and one by the Minister in charge of the Liberated Regions, of whom two shall represent communes of from 20,000 to 50,000 inhabitants, and two, communes of over 50,000 inhabitants; The Director of Departmental and Communal Administration at the Ministry of the Interior; The Director of Public Charity and of Hygiene at the Ministry of the Interior; Four members of the Superior Council of Public Hygiene, named by their colleagues; Four members of the Superior Council of Fine Arts, named by their colleagues; Four members of the General Council on Civic Buildings, named by their colleagues; Four members, chosen from among the city planners, architects, and other persons particularly qualified, named: two by the Minister in charge of the Liberated Regions, and two by the Minister of the Interior. The Council may add to its numbers reporters with the right to be heard on the matters in which they report. This commission is charged with the duty of establishing general rules to guide the municipalities in the application of the present law, and of giving its advice with regard to all questions and all schemes which are referred to it by the Minister of the Interior or the Min- ister in charge of the Liberated Regions, either of their own motion or on the request of the commission itself, by resolution with the reasons therefor annexed. ART. 6. When the scheme concerns only one commune, and except in the case provided for in par. 5 of art. i, governed by art. 8 below, with regard to groups of houses, the Municipal Coun- cil, at the instance of the Mayor, shall name the expert or the society to be employed for the study and preparation of the plans and schemes. If within two months of the promulgation of the present law this designation has not been made, the Prefect shall declare the Municipal Council in default if it does not proceed to do so within one month; after the expiration of which he shall of his own motion make the necessary designation. If the plan has not been established within the time allowed by art. i and 2, above, the Prefect shall of his own motion cause the work to proceed at the expense of the commune, and it shall for- feit its right to subventions provided for in art. 3, par. 3, of the present law. ART. 7. As soon as the plan, program and draft provided for in art. i, have been prepared they shall be submitted, after the ADMINISTRATION IN ENGLAND, CANADA AND FRANCE 533 advice of the bureaus of hygiene, or failing this, of the sanitary commission have been taken: ist. To the Municipal Council for its consideration; 2nd. To an inquest, 68 in accordance with the ordinance of August 23, 1835; and 3rd. To the consideration of the commission provided for in art. 4. The Municipal Council is then required to give its final decision. If the Municipal Council refuses or neglects to consider the plans, the Prefect shall declare the council to be in default and give it not more than one month more, after which he shall himself examine the plan. The same rule shall prevail if the Municipal Council refuses or neglects to give its final decision. The Prefect shall transmit the documents, with his opinion, giving his reasons, annexed, to the Minister of the Interior who, if he thinks it desirable, shall consult the Superior Council; and the work to be done under the plan may then be .declared to be of public utility by decree of the Council of State. In all cases concerning a settlement provided for in art. 2 of the present law, the declaration of public utility shall be made by a decision of the Prefect, upon the advice of the commission instituted by art. 4, except in so far as concerns groups named in art. I, for which in all cases a decree of the Council of State is necessary. ART. 8. Associations, corporations or individuals who undertake the erection or the development of groups of houses shall deposit at the Mayor's office a plan of subdivision, including the connection with the public highways, and, if there is occasion for it, with the water mains of drinking water and the sewers of the commune. Within twenty days of such deposit the plan shall be submitted to the examination of the bureau of hygiene, or in default of such to that of the sanitary commission of the locality, to the Municipal Council, and then to an inquest 58 in the manner prescribed by the circular of the Minister of the Interior of August 20, 1825. One month after a notice, duly attested, addressed by the owner to the Mayor, without objection raised, the Prefect may order the inquest. The plan shall then be submitted to the commission provided for by art. 4 above and approved, if necessary, by a decision of the Prefect. The decision of the Prefect shall be made within one month after the inquest. In default of such a decision within that time the plan is deemed to have been approved. Upon the approval of the plan no structure shall be erected without the issuance by the Mayor of a permit to construct, under art. n of the law of February 15, 1902. 88 Public hearing. 534 THE LAW OF CITY PLANNING AND ZONING ART. 9. When the planning scheme is such as to affect several communes of the department, the Prefect may require a study of the scheme as a whole on behalf of the municipalities concerned, and institute, even on his own motion, intercommunal conferences with a view to the formation of syndicates of communes, in conformity to the provisions of art. 116 and 169." of the law of April 5, 1884. The scheme shall be investigated, and declared of public utility in the manner prescribed by arts. 6 and 7 of the present law. If the plan extends beyond the limits of the department it shall be drawn up in an inter-departmental conference, in accordance with the provisions of arts. 89, 90, and 91 of the law of August 10, 1871, and then is subject, in each commune, to the requirements provided by arts. 6 and 7 of the present law. It shall be declared of public utility by a law which shall prescribe the measures necessary for its application. ART. 10. From the date of the publication of the act declaring a plan to be of public utility or of the decision of the Prefect approving the plan with relation to groups of houses, as provided in art. 8, the owners of land abutting on proposed highways and squares shall conform to the rules prescribed by the legislation with regard to building and street lines, and shall not erect any new structure with- out having first obtained a building permit from the Mayor. And thereafter no new structures shall be erected abutting on proposed highways or squares, except in accordance with the lines fixed. To this end no structure shall be erected without a building per- mit from the Mayor. "The reference should be to arts. 161-163, and not '169. CHAPTER III. PLANNING ADMINISTRATION IN THE UNITED STATES Planning Jurisdiction in the United States. The United States is a federal union. It consists of areas within states, ruled both by the national and by state governments and of areas outside the limits of any state, controlled entirely by the national government except as it has voluntarily delegated power to local governments. Within the states the nation gov- erns in matters of national, the states in matters of state and local, concern. The boundaries of state and national powers within the states are defined by the Constitution of the United States. Outside state limits, for the most part, the nation has granted localities the right of local self-government. In the District of Columbia, however, it has been held that Congress may delegate only municipal power, the general legislative power remaining necessarily in Congress. 1 Constitutional Limitations on Planning Power. Juris- prudence regards it as self-evident that all power power to act legally on any subject in any way must be located some- where; and in a democracy conceives of the people, in so far as they have not parted with it, as possessing this complete sovereignty. In creating a government the people give it cer- tain powers only, forbidding it to exercise the others, or limit- ing it in the method of exercising them. Thus no government in the United States may take property for a public use with- out compensation or deny to any one the equal protection of the law. These limitations and the interpretations put on them by the courts, as has already been shown, profoundly influence 1 Stoughtenburg v. Herrick, 129 U. S. 141 (1889). 535 536 THE LAW OF CITY PLANNING AND ZONING city planning in this country. To these limitations all govern- ments in the United States are subject. 2 Planning Powers of the United States Government. In addition to its full planning powers outside state limits, the United States Government, by virtue of its control over mat- ters of national importance, has ( I ) a power of local planning within the states and (2) a power of regional planning and (3) of investigation and advice, in all parts of the country. Local Planning Powers of the United States Govern- ment Within the States. Local planning is, in most of its phases, a state rather than a national matter. There are, how- ever, many national purposes for which the United States Gov- ernment may take and develop land within a city or other local area, as for instance for a post office, under its power to estab- lish post roads, or for a fort or arsenal, under its war power. The power of the nation in so doing is not merely the power to compel the state to act for it ; it may directly control persons and property in the state for these national purposes, and in its exercise it is free from state control. Thus the United States recently built a custom house in Boston an ornament to the city, as it happened higher than the established building limits; and New York City, being unable to take by eminent domain the right to construct a tunnel for a new subway under the post office on City Hall Square, was compelled, before the United States would grant the city that right, to give the United States a covenant agreeing in some respects to construct the subway at this point in accordance with the wishes of the national government. Planning Power Incident to the National Control over Interstate and Foreign Commerce. Perhaps the only power surrendered by the states to the nation which greatly affects city planning is that over interstate and foreign commerce. Commerce includes transportation, both by land and by sea, and the instruments of transportation, such as railroads, ship- * Except possibly the island dependencies, to some of the minor limita- tions ; see DeLima v. Bidwell, 182 U. S., p. I ; Doolcy v. U. S. ib., p. 222 ; Downes v. Bidwell ib., p. 244; Huus v. N. Y., etc., SS. Co. ib., p. 392; The Diamond Rings, 183 U. S. 176 (all, 1901); Hawaii v. Mankichi. 100 U. S. 197 (1903) : Dorr v. U. S., iQS U. S. 138 (1904). PLANNING ADMINISTRATION IN THE UNITED STATES 537 ping and harbors. Probably the nature of this grant by the individual states to the United States of the power to regu- late commerce, and its effect on city planning, may best be understood by considering with some fullness the resulting power of the United States and the individual states over the development of state harbors. National and State Jurisdiction over State Harbors. The use of water for navigation is, as has already been stated, dependent upon the use of the upland fronting on it, with the right appurtenant to this upland to build piers and wharves to deep water; in this country all waters being in law navigable which are navigable in fact. In the Constitution of the United States the states give the United States Congress the power "to regulate commerce with foreign nations and among the several states and with the Indian tribes." Since commerce includes transportation, power to regulate foreign and interstate commerce by water includes such power as may be necessary for the purpose over all waters navigable for this commerce. These waters are sometimes called the "navigable waters of the United States" and include all navigable waters in the United States, except such as are entirely within a state with no navigable connection, natural or artificial, with another state. This jurisdiction over "the navigable waters of the United States" carries with it such jurisdiction as may be necessary over the land under water and the upland. Subject to this national power these lands and waters remain in state jurisdiction and ownership. The ex- clusive right of the nation in international bodies of water, with the land under it, divided as just indicated between na- tional and state governments, extends, according to interna- tional law, for a marine league from the shore. Outside that limit the land and water belong to all nations in common. Thus at the border of the land fronting on interstate navi- gable waters national and state powers meet and overlap. Over this land, with its adjacent waters, the state may regulate its local affairs; over these waters, with their adjacent land, the United States may regulate interstate and foreign commerce and its instruments. What is the line between these two juris- 538 THE LAW OF CITY PLANNING AND ZONING dictions? In order to draw it we must very briefly consider the methods in the National Constitution of the grant of powers by the states to the United States. The legislative powers of the Federal Government, granted to it by the states, are divided into two classes first, those which are exclusively in the national government and may in no case be exercised by a state; and secondly, those which, if not exercised by the United States, may be employed by the states. This distinction has been clearly put by Willoughby in his work on the Constitution 3 as follows : "Some of the powers granted by the Constitution to the General Government are expressly denied to the States. As to the exclusive character of the federal jurisdiction over these there cannot be, of course, any question. It has, however, often been a matter of dif- ficulty of determination whether or not various of the powers given to the United States, but not expressly made exclusive or denied to the States, are so exclusively subject to federal control that the exer- cise of them by the States is under no circumstances permissible. Shortly stated, the principle that the Supreme Court has laid down for determining the question in each particular case as it has arisen has been the following: As regards generally the powers granted to the National Government there is a difference between those which are of such a character that the exercise of them by the States would be, under any circumstances, inconsistent with the general theory or national polity of the Constitution, and those not of such a character. As regards this latter class, the Supreme Court has held that as long as Congress does not see fit to exercise them, the States may do so. Laws thus passed by the States are, however, of course subject to suspension at any time by the enactment by Congress of laws govern- ing the same subjects." National and State Regulation of Pilotage, Etc. Un- der this principle the commerce clause of the United States Constitution was held not to forbid the state regulation of pilot- age in interstate harbors. In support of its decision to this effect the Court says : 4 "The power to regulate commerce, embraces a vast field, contain- ing not only many, but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a single uniform rule, Vol. i, p. 73. 'Coolcy v. I'o rt \\anl.ns u Howard ( I'. S.) 2OQ at p. 319 (1851). PLANNING ADMINISTRATION IN THE UNITED STATES 539 operating equally on the commerce of the United States in every port; and some, like the subject now in question, as imperatively demanding that diversity, which alone can meet the local necessities of navigation. . . . It is the opinion of the majority of the court that the mere grant to Congress of the power to regulate commerce, did not deprive the states of power to regulate pilots. . . ." The doctrine of the above case is now the established law. In a later case 5 the court in so stating adds : "The doctrine now firmly established is that when the subject upon which Congress can act under its commercial power is local in its nature or sphere of operation, such as harbor pilotage, or improve- ment of harbors, the establishment of beacons and buoys to guide vessels in and out of port, the construction of bridges over navigable rivers, the erection of wharves, piers and docks, and the like, which can be properly regulated only by special provisions adapted to their localities, the State can act until Congress interferes and supersedes its authority; but when the subject is national in its character, and admits and requires uniformity of regulation, affecting alike all the States, such as transportation between the States, including the importation of goods from one State to another, Congress can alone act upon it and provide the needed regulations. The absence of any law of Congress on the subject is equivalent to its declaration that commerce in that matter shall be free." 8 National Regulation of Pier and Bulkhead Lines, Etc. In this country each state has complete and exclusive author- ity over non-interstate navigable waters, and may regulate bulk head and pier head lines and the construction of bridges over such waters as it pleases ; over these matters in interstate navi- gable waters the jurisdiction of the state, as we have seen, depends upon whether or not the United States has assumed jurisdiction. With regard to these matters the United States IMS seen fit to take jurisdiction by passing regulations with regard to them. These regulations prohibit the creation of any obstruction, not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States, thus making it unlawful to build any wharf, pier, bulkhead, etc., in any port, navigable river, or other waters of the United "Bowman v. R. Co., 125 U. S. 465 (1888). 8 See also Covington, etc., Bridge Co. v. Kentucky, 154 U. S. 204 (1804). 540 THE LAW OF CITY PLANNING AND ZONING States, outside harbor lines established by the United States; or, when no such lines have been established, except in accord- ance with plans authorized by the Secretary of War. Where it is made manifest to the War Department that harbor lines should be fixed, the Secretary of War will cause them to be established. To the construction of any bridge or other struc- ture over navigable waters of the United States Congress must consent and the plans be approved by the Secretary of War; but where the navigable part of such waters is entirely within a state the consent of the Secretary of War alone is sufficient. State Regulation of Pier and Bulkhead Lines, Etc. It has been held that this legislation does not indicate the pur- pose of Congress entirely to exclude state jurisdiction in these matters, but that to the erection of docks and piers within a state the consent of the state also is necessary. In the exercise of this power, states, and cities by their authority, may and often do fix bulkhead and pier head lines inside the federal lines, but can not, of course, authorize any structure beyond them. Unexercised Powers of National Government over Harbors. It is clear from the decisions cited and others that might be referred to that the United States in its legislation as to bridges, bulkhead and pier head lines, etc., has exercised only a part of its power of harbor regulation. If it so chose, it could fix the location of docks and similar structures or even build and control them. It has never done so and probably never will. 7 Its purpose at present is simply in some respects to condition the planning of harbors by state authority, not to plan them itself. National Jurisdiction over Transportation by Land. What has just been said with regard to national and state ju- risdiction over transport by water applies also to such jurisdic- tion over transport by land. Undoubtedly the United States might not only regulate the interstate railroads and charter cor- porations to construct them but might itself build and operate them with their terminals and warehouses. This, too, it shows * It has, however, authorized corporations to build bridges over navi- gable water. PLANNING ADMINISTRATION IN THE UNITED STATES 541 no signs of doing. But even if the United States exercised this power over the instruments of commerce both by sea and by land, it would still remain true that the planning of cities, in harmony, so far as possible, with these national factors outside state control, would be the peculiar task of the state or of the local community to whom the state has entrusted it. Regional Planning by Central Government. Like all governments, the government of the United States has and exercises the power to regulate the use of and conserve land and other resources, within or without state boundaries, which belong to the nation. Our national parks, so controlled, are unrivalled in the world. At one time the federal government owned vast tracts of agricultural land, some of which still belongs to it. The United States, in aid of interstate commerce, has also built roads and made other internal improvements in all parts of the country. Proper management and control of these matters involves regional planning. The small amount of direction which the federal government has given these mat- ters is all the regional planning which the federal government has done, but by no means all that it might do. By its power to construct and regulate the construction of the instruments of land and water transportation in interstate commerce already referred to, and especially by its power to regulate and fix passenger and freight rates in such commerce, the federal gov- ernment could in large measure determine the location and growth of cities and lesser communities and the distribution of population and industry with relation to agricultural and other resources in every part of the United States. The power to fix rates is constantly being used by the central government in ways that influence the distribution of population and busi- ness. For instance, every time the national government fixes, modifies or refuses to disturb the differential of freight rates between different cities, it exerts a mighty influence of this sort. These powers have never been used as a means of carrying out any regional plan of the United States nor has there even been any attempt to make such a plan. The advantages which could be gained by the making and enforcement of a proper plan of this sort, the risks in disturbing values on such a scale 542 THE LAW OF CITY PLANNING AND ZONING and the difficulty in obtaining agreement to any specific pro- posals to this end would all be enormous. Under these circum- stances the wise course to pursue would be to prepare a plan which should be purely advisory- a most difficult task quite aside from its magnitude and present it from time to time to the state and local authorities as occasion arose without at- tempting to decide whether anything further could ever be done, much less how it should be undertaken. Investigation and Advice. The United States, under the Constitution, has no general planning jurisdiction. Neverthe- less it seems clear that it may investigate and experiment in planning matters, disseminate this information throughout the country and give its advice to governments and individuals seeking it. The power of investigation, experimentation and advice, inherent in other governments, has always been assumed to be inherent in ours. For instance the power of the national government to render the valuable assistance of this nature to agriculture throughout the country has never been questioned. The Dominion government of Canada, without any more authority in planning than our federal government, is exer- cising this power most effectively through its Commission of Conservation. 8 Largely on account of its influence, six of the provinces have passed town planning laws modeled on the English law, many of them embodying improvements suggested in England before they were enacted in the mother country. This power is also possessed by our states, as it undoubtedly is by the Canadian provinces, and should be used by the nation to supplement the states and their subdivisions in this branch of the work in ways in which the nation can act more effectively. 9 "See, however, p. 511, note 28, *A proposal for the creation of a planning department of our national government, which had the support of many associations and individuals interested in housing and city planning, was embodied in a "Hill to create a Bureau of Housing and Living Conditions in the Department of Labor," introduced in the National House of Kei>re>entative* <^.th Cong., ist scss., July 8, 1919, No. 7014) by Congressman Tinkham of Massachusetts, which failed of passage. That town planning was intended to lie in- cluded in its scope is indicated by the speech of its introducer (Cong. Record, Vol. 58, p. 8913, July 12, 1919). Obviously planning is a neces- sary part of any method of permanently improving housing and living conditions. The Republican national platform also has come out in favor PLANNING ADMINISTRATION IN THE UNITED STATES 543 Planning Jurisdiction of the States. While the United States, as has already been pointed out, has powers which it could use to influence the planning of the territory within state limits, it never has used these powers to that end. At times the state authorities must recognize the jurisdiction of the central government. Thus if a city wishes to include in its plan the bridging of a navigable stream or the extension far- ther into navigable waters of the bulkhead or pier head line, federal permission must be obtained. In practice this permis- sion is given or withheld solely with a view to its direct and obvious effect on navigation and never for the influence it would have on the city plan. Practically, therefore, the state may be said to have full planning power and jurisdiction within the state subject to such limitations as the United States and the state constitutions place on governmental action ; which lim- itations, in so far as they are in the state constitution, the people of the state may vary or remove. The plenary authority of the state over planning may be ex- ercised directly or delegated to local governmental agencies. The matters to be so regulated may be classified into ( I ) mat- ters of more general interest, with which the state would natur- ally deal directly, (2) matters of local interest which, so far as possible, the state should regulate through local authorities, (3) supervision of local planning, which is necessarily a state matter, (4) investigation, experimentation and advice in planning mat- ters, which also is properly but not exclusively a state function. State Planning. What may be characterized as the actual planning as distinguished from the supervision of planning and the collection and dissemination of information with regard to planning which it is the province of the state to under- take and which states do in fact undertake in this country, may be in the nature either of city planning in the narrower signifi- cation of that phrase or of regional planning. The Planning of the Capital City. The city in which the of the establishment of a housing and planning bureau with advisory power in the United States Government; and, accordingly, there has been created, in the Department of Commerce, a Division of Building and Housing, in which two advisory committees, on Building Codes and on Zoning, have been appointed. 544 THE LAW OF CITY PLANNING AND ZONING entire state is interested is the state capital. The capital of the United States is exclusively under the jurisdiction of the United States Government. In the individual states the capital city is sometimes wholly self -governed, sometimes wholly or partly under direct state control. In one state the concern of the state in the planning of the state capital is recognized in the appointment of a planning authority, purely advisory, which cooperates with the planning authorities of the city and of neighboring communities. 10 State Regional Planning. The resources of the state, of forest, water and power, are the patrimony of its people. In many states there are state commissions whose duty it is to con- serve its resources and in some cases to apportion the use of them among the local governments and to corporations and in- dividuals for the common good. Such features as parks are often of such size or so distributed as to serve more than one community and should be paid for and planned in the interest of the larger public they serve. In some states these parks are managed by a state commission, in others they are under county control. Obviously a state system of main highways is neces- sary. Sometimes, however, these highways are planned by the county. Especially important in the development of the state as a whole and of the communities within it are its railways, the location and powers of which are for the most part fixed by the state. All these possibilities of planned regulation and control are still largely neglected, and it is for the purpose of pointing out this possibility that they are here mentioned. Planning and Home Rule. There is a growing belief in this country in the righteousness and expediency of a full measure of local self-government in local affairs. General mat- ters must be settled by general rules but the applications of gen- eral principles are always special and should fit the special cir- cumstances of the case. The law that people do not want does not work. The man on the spot thinks he knows what he wants; the man at a distance may advise and persuade, but must be very careful in his commands. This theory, founded on observation and common sense, has in a few states found its "California. For the law in full, see p. 603. PLANNING ADMINISTRATION IN THE UNITED STATES 545 way into the state constitution, which guarantees a measure of home rule to certain of its local governments; but in most states it is still a precept which the legislature sometimes heeds and oftener disregards. The principle of home rule is espe- cially applicable to city planning. The plan must be framed to fit the locality and, once framed, must be kept abreast of the local needs and enforced. The state may lay down general principles, establish minimum requirements, supervise, harmon- ize and direct, but should, so far as possible, leave detailed planning to local authorities. Local Planning. Except when prevented by home rule provisions, made a part of the state constitution, the states in this country have the legal right to confer planning powers on such local governments as they see fit, to the extent they think proper; and, having conferred these powers, they may add to or limit them in the same way. In so doing they may rely upon existing local governments or create new ones for the purpose, these governments having no vested rights in the power but only, in certain cases, to property acquired under it. It is quite usual to create local governments for special purposes, such as fire protection, the collection and disbursement of taxes for spe- cial improvements, the administration of parks, etc. These governments may be coterminous with other local governments or include outside territory as well. The overlapping sometimes but by no means always makes unnecessary complication and expense; but this is an objection to the expediency, not the legality, of the new government. In this way local public cor- porations or quasi-corporations of unquestionable validity may be created by the state to administer planning as well as perform other functions. Metropolitan Planning. Metropolitan planning has al- ready been defined as the planning as a unit of a city or group of cities and smaller localities and the outside territory within its sphere of more immediate influence ; and the fact has been indicated that it is the division of such a district by jurisdic- tional lines that occasions administrative difficulties in such uni- fied planning. It is these difficulties which will now be taken up. 546 THE LAW OF CITY PLANNING AND ZONING The statute which creates a city necessarily assigns to it definite limits. It is a common thing for the population of the city, in its growth, to overflow into the territory outside the city's legal limits. The difficulties which this occasions may be obviated by a seasonable extension of these limits, but this is often prevented by those living in this outside territory who en- joy the advantages of the city without paying its taxes. Where the city is enlarged in anticipation of growth and the land to be taken in is still agricultural in character, the opposition of the owners of this land may be met by taxing it at a lower rate as long as it remains agricultural, on the ground that it does not get the same advantage from city government that other land does; an agreement to that effect being made with the owners of the agricultural land to obviate the danger to them of the repeal of this provision through the influence of other land owners. In such cases the land taxed at a lower rate does not need, and should not receive, the improvements and other municipal services which the more highly taxed land obtains. 11 Extension of City's Planning Jurisdiction Beyond Its Limits. If the legal limits of the city cannot well be extended to include the neighboring unimproved land, unified planning may to some extent be secured by giving the city the power to pass on the platting of land within a given distance of its outer limits. This is done by making the record of deeds of such land dependent upon the approval of the platting by the plan- ning commission or some 6ther board or official of the city. The usual distance beyond its limits to which the city's power in this respect is allowed to extend is three miles, or if there is another city within less than six miles at any point, half the distance to the line of that other city. The merits and defects of this method of controlling the planning of land, in so far as they apply to land irrespective of its location within, or without, the city, have already been pointed out and need not be repeated. The reader will remember how incomplete that control was found to be. It remains to point out that to give one local government control over territory and people within the limits of another is both unjust and calculated to confuse u See p. 4 1 . PLANNING ADMINISTRATION IN THE UNITED STATES 547 government in both units. Often the outside territory sub- jected to this control is not organized as a village, town, or simi- lar local government; but it is always within the confines of a larger local unit such as the county which in many cases embraces both the city and the adjacent territory, and in the government of which the city, with its much larger population, has the greatly preponderating power. It is to be regretted that, as a rule, county government is not such in this country that planning power can wisely as yet at least be given it. Creation of Metropolitan Planning Authority. Where the adjacent territory is organized into cities and villages, a method free from the defects inherent in giving the city juris- diction outside its limits, and by which also that complete unity of planning which extraterritorial control attains only in small part can be secured, is the creation of a local government cov- ering the entire district which is to be planned, whose sole function shall be planning, leaving with the regular local gov- ernments their jurisdiction over all other matters. The Pennsylvania Law. A planning authority of the sort described was created in Pennsylvania. In 1913 an act was introduced in her legislature providing for the appointment of a suburban metropolitan planning commission, to include Philadelphia and suburban territory within twenty-five miles of its limits. As passed, however, the act applied to the suburban territory only. It provided that the governor of the state should appoint a planning commission for the district, to consist of fifteen members, of whom twelve should be residents of the dis- trict and three residents of Philadelphia. The jurisdiction of the commission covered the planning of highways, water sup- ply, sewerage systems, open spaces, etc., in so far as the district as a whole, or more than one member of it, was affected. The commission was of right entitled to obtain information from all these municipalities and to be heard by them on all these matters. Its power was advisory. Unfortunately in 1915 the act was repealed. The Massachusetts Proposal. In Massachusetts a fuller solution of this problem was proposed. Massachusetts has long had a metropolitan district embracing Boston and thirty-seven 548 THE LAW OF CITY PLANNING AND ZONING of its neighboring cities and towns. For this district she has at different times appointed a number of temporary commis- sions for a variety of purposes, and permanent commissions for the regulation, throughout the district, of water supply, of sew- erage, of parks and of fire prevention. The Commissioners are appointed by the state. The cities and towns which con- stitute the district include such a considerable part of the pop- ulation of the state 43 3/10 per cent in 1910 that the ap- pointment of state commissioners is less an infringement of the principle of home rule than it would be in many other cases. Certainly, however, such problems may often be solved without violating home rule, as, for instance, by a state law providing for a commission to control a harbor in two local jurisdictions within the state, its members to be appointed by each jurisdic- tion in the proportion that its population bears to that of the other jurisdiction. No commission has power to regulate and unify street con- struction in the metropolitan district of Boston and its neigh- boring towns and cities, although both the appointment of a separate commission for that purpose and the consolidation of the existing commissions, with the power to control street con- struction added, has been suggested. The latest suggestion was in 1912, at which time a draft of an act, never passed, was introduced into the Massachusetts legislature. 12 The proposed act provides not only for the planning but for the construction of highways and other improvements and the equitable dis- tribution of the expense, and is well worth careful study. Interstate Metropolitan Planning. A number of large cities in this country are located at or near the state boundary. When the boundary line is a river with a harbor at its mouth, as in the case of New York City, the division line is more of a close connection between the two states than a division. Often the city has grown to such an extent that the metropolitan city is in three states and commuters come from all three of them daily to business. The need of planning such an area as a unit "An investigation of the desirability of such a commission was or- dered by Massachu ;unl Resolves, 1911, ch. 84. The report, with the draft act, reprinted in full on p. 589 of this work, is House No. 1615, of 1912. PLANNING ADMINISTRATION IN THE UNITED STATES 549 is great and the difficulties are much increased by the jurisdic- tional lines, fixed by the United States Constitution. One method of overcoming these difficulties is to appoint a citizen planning commission, with a membership in all the different jurisdictions. The members of such a commission, when once they have agreed upon a plan, can do much in their own localities to induce common action along the lines of the plan. Another method of attaining, to a certain extent, unity of action, is the appointment by each state of an official commis- sion, the commissions, so far as possible, acting as one commis- sion. None of these devices are thoroughly satisfactory. What is needed is a single authority, acting permanently for the entire metropolitan district. Such an authority the states of New York and New Jersey have created for the planning of New York harbor and the territory adjacent to it, constituting a met- ropolitan district. The Metropolitan district of New York, includes, in addi- tion to New York City, fifteen cities, some of them of large size, forty-one boroughs, two villages, seventeen towns, and seventeen townships. Of these local governments eleven, with by far the greater population, are in the State of New York, and the rest in the State of New Jersey. The difficulties of developing a world harbor, in need of the most modern and efficient equipment, so controlled, are apparent. The great har- bors of other countries all have a port authority, with juris- diction and funds commensurate with the task they must per- form. Faced with the task of the adequate development of the har- bor of New York, the States of New York and New Jersey in 1917 each appointed a commission, to act jointly with the com- mission of the other state. 13 This commission, regarding the creation of a single port authority for the entire district as in- dispensable to the performance of the task, proposed, and has "Laws, New York, 1917, ch. 426; New Jersey, 1917, ch. 130. In addi- tion to the reports of this Commission, see the brief of its Counsel, Julius Henry Cohen, in defense of the legality of its proposals, in the Cornell Law Quarterly for May, 1920. 550 THE LAW OF CITY PLANNING AND ZONING now obtained, legislation from the two states for the adoption of a method of overcoming the jurisdictional difficulty. In the year 1834, the States of New York and New Jersey entered into a compact settling the disputed question of jurisdiction over the waters between the two states. This compact was rati- fied by the United States Government and subsequently sus- tained by the courts. This compact has now been amended by adding to it provisions for the creation of the necessary port authority. 14 The rights of the two states and of the local com- munities concerned have been carefully safeguarded. There are a number of cities in this country which face problems much like those that confront New York; and the solution found by New York cannot fail to be of aid also to them. 15 State Supervision of Local Planning. Home rule does not preclude the state from legislating in matters of general importance, binding local governments and individuals in the conduct of their affairs; indeed all states regard it as their duty to enact and enforce such laws. Nor does home rule in principle prevent the state authorities from supervising localities in dealing with purely local matters. In this country the state exercises little of such control ; 18 which however is usually a "Laws, New York, 1921, chs. 154, 203; New Jersey, 1921, chs. 151 and 152. For the text of the compact see p. 597. The compact was rati- fied by the United States by resolution of Congress approved by the President, August 21, 1921 ; and in 1922 the legislatures of New Jersey (ch. 9) and New York (ch. 43) approved the plan of development sub- mitted by the port of New York authority and authorized and directed it to proceed with the development of the port in accordance with that plan. The acts contain an outline of the plan. "In this connection a law of the State of New Jersey passed in 1912 (ch. 177) requiring all communities in that state situated on New York harbor to report contemplated improvements of lands under water to the New York-New Jersey commission already referred to, is not with- out interest. ** STATE SUPERVISION OF PLANNING OF HARBORS. A New Jersey statute (1914, p. 205, ch. 123) creating a Harbor Com- mission, provides a method by which the state may supervise the plan- ning of harbor facilities and land under water to any desired extent. Land under water in New Jersey is owned by the state and is granted by the state (acting through the State Riparian Commission, now suc- ceeded by the Board of Commerce and Navigation) to individuals, and private and public corporations, in its discretion. This gives the state undoubted power to make and enforce plans. PLANNING ADMINISTRATION IN THE UNITED STATES 55' part of the governmental system of foreign countries, even in Canada, where the customs and traditions are so like our own. In foreign countries state supervision has proved most useful in certain phases of local planning, especially the neces- The statute after providing (sees. 1-2) for the appointment of the commission, its secretary, etc., proceeds as follows : 3. It shall be the duty of the commission to investigate and report annually to the Legislature the condition of the water front or harbor facilities, and any other matter incident to the movement of commerce upon all navigable rivers and waters in this State, or bounding thereon, and to recommend to the Legislature, and to the various municipalities of this State interested therein, such measures as may, in the judgment of the commission, be necessary or advisable for the preservation of proper navigation or its improvement, or the improvement of the move- ment of commerce upon such waters, and, concurrently with the Riparian Commission of this State, or any board or body which may succeed to the powers of said commission, the commission created by this act shall have power, by appropriate action in any court, to prevent encroachment or trespass upon the water front of any of the navigable waters of this State, or bounding thereon, or upon the riparian lands of this State, and to compel the removal of any such encroachment or trespass, and to re- strain, prevent and remove any construction, erection or accretion in- jurious to the flow of any such waters which may be detrimental to the proper navigation thereof, and the maintenance and improvement of commerce thereon. 4. All plans for the development of any water front upon any navt* gable water or stream of this State, or bounding thereon, which is con- templated by any person, corporation or municipality, in the nature of individual improvement or development, or as a part of a general plan which involves the construction, change, alteration or modification of a dock wharf, pier, bulkhead, bridge, pipe line, cable, or any other similar or dissimilar water front development, to be undertaken subsequent to the passage of this act, shall first be submitted to the said commission, and no such development or improvement enumerated within the pro- visions of this section, or included within a proper interpretation thereof, shall be commenced or executed without the approval of this commission first had and received, or as hereinafter provided. Upon the presentation of plans for any such improvement, the commission shall forthwith con- sider the same, and shall, if necessary or desirable, hold public meet- ings for the consideration thereof, under such rules and regulations as the commission may establish. Before any plans are ap- proved or disapproved, the commission shall have power, except as here- inafter provided, to direct such changes or alterations in the plans sub- mitted as it may deem necessary or advisable as a condition precedent to approval. Where such water front is under the control of any local board, commission or other governing body, created by an act of the Legislature, now or hereafter, having power to improve or develop the water front or exercising such authority that a permit or license must be granted by it before any improvement or development may be com- menced, plans proposed by it or submitted to it shall be filed with the commission created under this act. The said commission created under this act, may, within ten days after the receipt by it of plans as above provided, file notice of objections to the carrying out of such improve- ment or development, or to the granting of such permit or license by 552 THE LAW OF CITY PLANNING AND ZONING sary harmonizing of the plans of neighboring local govern- ments. No other method has been discovered of accomplish- ing this result with so little interference with home rule. Some supervision by the state of the more strictly local phases of planning has also been found profitable. State Research and Advice. The making of experi- ments, the collection of information, and the giving of advice to local governments in planning, as in other matters of suffi- cient importance and difficulty, is properly a state function, although legally it may, and practically it should, be undertaken also by the nation on the one hand and by the local community on the other, each contributing something to the common fund the local board, commission or other governing body, and the filing of such notice shall act as a stay in the carrying out of such plans or in the granting of such permit or license until a public hearing shall have been held by the local board, commission or other governing body, sitting jointly with the commission created under this act. At such public hear- ing the commission created under this act may state its objections to the plans and recommend such changes, modifications or alterations as it deems necessary. The local board, commission or other governing body, together with the commission created under this act shall then either approve or disapprove the plans or grant or refuse to grant the permit or license as in their judgment seems necessary or desirable. Any de- velopment or improvement enumerated within the provisions of this sec- tion, or included within a proper interpretation thereof, which shall have been commenced or executed without first obtaining approval as pro- vided in this section, shall be deemed to be a purpresture and a public nuisance and shall be abated in the name of the State of New Jersey in such action as shall be appropriate for that purpose; provided. ho:<.',-rcr, this section shall not apply to or affect, any development for docks, ship- ping and transportation facilities heretofore inaugurated by a municipality, which is under construction in whole or in part, if such municipality has, prior to the passage of this act, filed with the Secretary of State a map showing the lands proposed to be taken for such municipal development. 5. Any county, town, township, borough, city, or other political sub- division of this State, may request the said commission to prepare and propose for such municipality a proper plan for the development and improvement of its water front upon any navigable stream, river or waters of this State, or bounding thereon, and it shall be the duty of the said commission to prepare and submit such plan nr plans for tlie im- provement and development of the water front of such municipality the navigation of the waters incident thereto, and the regulation and im- provement of the traffic of commerce incident thereto. The said commis- sion for the preparation and submission of such plans may make such charge against the municipality requesting the same as is equal to the actual cost of the preparation of such plans of improvement, and the municipality requesting the same is hereby autliori/ed to pay the same from any funds in the treasury of the said municipality. The remaining sections of the act (sees. 6-9) provide for repeals and appropriations. PLANNING ADMINISTRATION IN THE UNITED STATES 553 that the others cannot give. To this function can be added with profit that of furnishing expert assistance in technical matters. The smaller communities cannot command the services of the best experts in their local problems ; and yet the solution of these problems is as difficult and as important to the community as the problems of larger and richer localities. In this connec- tion it is interesting to note that in one state a state authority with power to give advice and a certain amount of aid to local governments throughout the state in their planning, exists ; 1T and that bodies with somewhat similar powers are to be found in other states. 18 The Planning Executive. The prevailing form of plan- ning executive in the United States is the official commission. New forms of governmental activity in this country usually pass through two administrative phases. At first the enterprise is entirely a movement of private citizens, who inaugurate a society or committee for the purpose. Funds are raised by private subscription. Paid experts and clerical aids are em- ployed, but the committee is unpaid. By this experiment, to which the public authorities are in no way committed, the feasi- bility and usefulness of the proposed governmental function is sufficiently proved to serve as a basis for the effort to induce the public authorities to adopt it. If this effort is successful, the enterprise enters upon its second phase. The form which this function now assumes depends upon its similarity to other public functions. If the new activity can be assigned to some existing department or a new department created along existing lines, this is done; if not, a new commission is formed. If as time goes on a method of knitting the new function more closely " Pennsylvania. For the law in full see p. 604. 14 The Immigration and Housing Commission of California (Laws 1917, p. 1514, ch. 740) and the Homestead Commission of Massachusetts (Laws 191 1, ch. 607, 1913, ch. 595) now absorbed by the new Department of Public Welfare ( 1919, ch. 350, sec. 87 ; see also the last report of the Homestead Commission Public Document No. 103, Seventh Annual Report for 1919, published 1920) collect and disseminate housing and planning information. The appointment of state and local housing and planning boards was proposed by the Housing Committee of the State Reconstruction Commission, of New York; see its report dated March 26, 1920, published by the state. Similar suggestions have been made in other states. 554 THE LAW OF CITY PLANNING AND ZONING into the existing framework of government develops, this oc- curs; if not the function continues to be exercised by a special commission. City planning in this country is now in the second stage of this development, planning power being usually en- trusted in cities (and in counties in the few instances in which they have been authorized to plan 19 ) to a separate commission or board; although in a few cases this power is exercised by a city official or department or a committee of the legislative body of the city, but communities which cannot at once obtain official planning powers are still forming unofficial committees as a first step to that end. Temporary Commissions. In the beginning of the city planning movement planning commissions were often created for the purpose of preparing a city plan, and when this was done, ceased to exist ; but the mistake of such a policy is now generally realized and almost invariably permanent commis- sions are now appointed. The city is not a static thing to be made, complete, according to model, once for all, but a growing and changing organism. Not only must the plan be prepared but it must be enforced on forgetful and sometimes unwilling city officials and property owners, and added to or modified as the growth and change of the city demands. All this requires the watchfulness and study of a planning executive, a duty which the commission that prepared the plan, if a proper one, is best fitted to perform. The planning commission should, therefore, from the start be a permanent one. The first per- manent commission was appointed in Hartford, Connecticut, in lox)/. 20 There are now hundreds of such commissions in this country. Authority for Appointment. Official commissions can come into existence only by virtue of law ; but it does not follow in all cases that, without an express law authorizing such a commission, it will be impossible to obtain one. If the com- mission is to have simply advisory power ( and, as will he seen, such a commission is by no means powerless), the city can in "New Jersey (1918, ch. 185, art. XVI) given in full on p. 603; N< w York (Westchester County) 1915, ch. 109. "Special Laws, 1907, No. 61, amended ib. 1909, No. 34, sec. 6 and No. 74- PLANNING ADMINISTRATION IN THE UNITED STATES 555 all probability create it under its general powers ; and in many cities planning commissions created by the legislative body of the city, or planning committees of that body appointed by it to whom it refers planning matters which come before it, exist, and have done good work without any express provision of law authorizing them. 21 In a number of states some or all cities or other local gov- ernments are given by law or constitutional enactment the "home rule" right to adopt or amend their own charters and may, therefore, include in them a provision for a city planning commission, with more than advisory power if that is their desire ; the extent of that power depending upon the laws and constitution of the particular state. 22 As a rule such cities may give planning commissions so created all the planning power which the city itself possesses. Cities under a commission form of government do not consider it a departure from principle to create planning commissions. In several states planning commissions, for all or certain classes of cities, or individual cities, or cities and smaller com- munities, are provided for by express statute. 23 Under these statutes the local authorities are in some cases directed to create commissions, 24 but most of these statutes are permissive, these authorities being given the power to exercise or not as they see fit. The advantage of permissive statutes is that they compel the advocates of planning to educate the community to its use before the attempt to plan is made. Appointment. There are various methods of appointing or designating the members of planning commissions. When the commission comes into existence under the city's general powers, if created by the mayor its members are appointed by 21 Examples of planning bodies so created are the Commission for Bridgeport, Connecticut, authorized by the Common Council August 18, 1913 ; that for Providence, Rhode Island, authorized by ordinance, ch. 599, No. 407, approved Dec. 2, 1913 ; and the committee of the Board of Estimate and Apportionment of New York City, authorized by it Jan- uary, 1914. 22 See on this subject generally The Law and Practice of Home Rule by Howard Lee McBain, Columbia University Press, New York, 1916. 23 See Tables of Statutes. 24 As, for instance, in Massachusetts ; the citation is given in the tables just referred to. 556 THE LAW OF CITY PLANNING AND ZONING him, or if created by the council, its members are appointed by it, or it authorizes the mayor, with or without its concurrence, to appoint them ; for while there is no legal reason why there should not be more than one such planning commission in exist- ence in the city at the same time, it is not probable that this will occur. When commissions are formed by virtue of a statute or a charter provision, the statute or charter provides for a method of their appointment. In some cases the city council, authorized to create a commission if it sees fit, is also authorized to decide how its members shall be named ; but usually the law directs that, in so far as the members are not designated by law, they shall be appointed by the mayor or by the mayor and council. Appointment solely by the mayor would seem to be the better method. The principle of centralizing both power and respon- sibility in government is now universally regarded as the cor- rect one, especially in the appointment of officers for the per- formance of duties with regard to which the general public has little knowledge and interest. This is a part of the well known "short ballot" principle. Membership of Commission. The number of members of the commission is as a rule between five and fifteen, the usual number being seven or nine. In special cases, as in met- ropolitan planning, where several local governments are in- volved, there is much to be said for a large commission, al- though even in that case it should be avoided if politically pos- sible ; and often for special work, such as for instance the prep- aration of zoning regulations and maps, a representation of the various interests involved larger than that which the usual planning commission affords, seems desirable ; but a sub-com- mittee may be formed to aid in that work, without enlarging the permanent commission. That commission in city planning should as a rule be kept small ; for while it is important that it should be representative, it is even more so that it should be efficient, as the large commission in executive work seldom is. The provisions with regard to the qualifications which the members of the commission shall have for the work vary in the different laws and ordinances under which the commissions PLANNING ADMINISTRATION IN THE UNITED STATES 557 are appointed, in some cases the appointing authority being left free to use its own judgment, in others that authority being required to select men skilled or learned in certain matters; in still others and this is the more common provision the law requiring that a part, generally from a half to three-quarters of the whole, shall be the incumbents of certain designated city offices, while the rest, to be selected by the appointing authority, shall be citizens holding no other city office. In a few cases the law provides that not more than one or two of these selected members may be non-residents. The city officials who ex-offitio are oftenest designated as members of the planning commission are (in the order of fre- quency) the mayor, the chief of the department of public works, the head of the park board or department, and the city attorney. Often, too, a representative of the legislative branch of the city government, or even representatives of its two branches if it is bicameral, are so made members. The periods of time for which the selected commissioners are appointed are usually made overlapping, so as to secure a measure of continuity. The reason for including on the commission both city offi- cials and lay members is that both the immediate and the more far-reaching points of view may be represented. The plan must be sufficiently ideal to provide for progress, sufficiently general to unify the city in its growth, sufficiently prophetic to provide for the future ; but the ideals must be capable of practical ful- filment and closely related to the city as it is. There is also the danger, especially in large cities, that the officials will be too busy with what they are likely to regard as duties which are more specially theirs, to give attention to planning. The indi- vidual problems of each city may well modify the choice of members for the commission. It should be remembered, how- ever, that the commission is entitled to the assistance and advice of the city officials. There is, for instance, little need for in- cluding the city attorney, as such, in the membership. Powers of Commission. The powers of commissions in matters relating to city planning under the various laws may be characterized as those of (i) general advice; (2) advice a pre- requisite to action by other city authorities; (3) advice which 558 THE LAW OF CITY PLANNING AND ZONING may be overruled only by more than a majority vote of the city council; (4) absolute control. In addition such commissions are given powers of various sorts with regard to special phases of planning, are made the agent of the city in various matters of city construction or are required to perform certain duties for the city. General Advice. Practically all planning commissions, in- cluding those which are granted additional powers, 25 are given the right to make a plan of the city and its environs, whether within the legal limits of the city or not. This plan as a rule may contain anything which the commissioners think bears on the planning and construction of the city, even if in some cases the city has no power to act on it. The commission may also make reports on any or all of these matters and give advice to city officials or private corporations and individuals with regard to them. The right to receive full information of the action of the city authorities on planning matters as soon as it is inaugu- rated and before such action becomes final, is often added. Innocuous as this power seems, it is nevertheless most use- ful. A good plan backed up by intelligent publicity has of itself great influence on the community and on city officials. Gradually some of its features, more or less modified, some- times for the better, often, unfortunately, for the worse, are carried out; and even if city improvements, rightly or wrongly so called, are made in disregard of it, blocking some of its important features, there is every probability that its influence for good will reassert itself later. Most of the earlier commis- sions were given merely the power of advice and nevertheless justified their existence ; and a number of the later statutes are similar in this respect. 20 Advice a Prerequisite to Action by Other City Authori- ties. Most of the recent laws for the creation of planning commissions, in addition to granting them the power of "Such as, for instance, those created under the Minnesota, New Jersey and New York laws, given in full on pp. 57<>ff. "As, for instance, the commissions appointed under the Massachu- setts laws. The reference is given in the Tahles of Statutes. Of this character also are the laws of New Jersey, 1911, ch. 71, and 1913. rhs 72 and 170, and the later law- <.f Calif nrnia, Nebraska and Oregon, !i-ud in the Tables of Statutes already referred to. PLANNING ADMINISTRATION IN THE UNITED STATES 559 eral advice," provide that before any other city authority takes final action on any one of certain specified matters it shall notify the commission and await for a certain time a report from it. That report the commission is given the right and duty to submit, but the authority concerned may disregard if it sees fit. 27 This is in accordance with the best thought on the conduct of representative government. If power, and there- fore responsibility, are divided between the commission and the authority concerned, the voters do not know whom to hold accountable for action or inaction and its results ; but under the provision in question that authority is required to listen to the advice of experts, but must itself act and assume full respons- ibility for so doing; in other words, it is unable to indulge in the favorite political game of "passing the buck." Advice to Be Disregarded Only by More Than a Ma- jority Vote of City Council. In several laws and ordinances for the creation of planning commissions the recommendations of the report which is a prerequisite to final action can be dis- regarded only by a vote of more than a majority of the city council, the usual requirement being two-thirds. 28 The pur- pose of such a requirement is to increase the power over city planning matters of the experts in these matters without unduly dividing authority. In certain matters where stability is espe- cially important there is much to be said for such a provision ; but its wisdom in all the many matters of city government and construction which should be within the jurisdiction of the planning commission is more doubtful; for certainly city busi- ness must be promptly done, and it is to be feared that by such a requirement either the field of usefulness of the commis- sion would be unduly limited, or the city's business confused and delayed. Absolute Control. In one or two cases 29 the commis- 17 The law of Minnesota -is of this class; and also the special law for Hartford, Connecticut, already mentioned, special laws for a number of other Connecticut cities, and the law of Wisconsin, in the tables just re- ferred to. See in this connection also the New York law, printed in full on p. 581. 28 To this effect is the law of New Jersey printed in full on p. 578. 29 As, for instance, in Cleveland, under the provisions of its charter and ordinance, printed in full on p. 587. 560 THE LAW OF CITY PLANNING AND ZONING sion is given the right to make a report on the matters deemed of importance in planning, which the other city authorities must follow ; or is made the power in the first instance to decide and in some cases to carry out the city's policy in these matters. Under such a system the commission is in reality the board of public works of the city, which loses the advantage of having a planning commission with the measure of detachment essential to the task of planning. Usually, too, such matters have a legislative side, and questions of policy with relation to them should be decided by a legislative body, with the advice and subject to the criticism of experts. If the commission is given complete authority in these matters this advantage is forfeited. Method of Conferring Powers upon Commission. The powers granted to commissions vary greatly in character and the methods of conferring them should vary accordingly. In so far as the power is that of "general advice" which other officials may profit by, but are not required to regard or even await in their action, there can be no harm and may be much good in giving this power in the broadest terms; and such is the general practice. Even matters with regard to which the city has no legal right to act are included. This is done, as a rule, by empowering the commission to make a map of the city and its environs within and without its legal limits, including in it all matters which the commission deems relevant, and also, for full measure, giving it specifically the right to investigate, report, and advise officials and private parties on all such mat- ters. When the report of the commission is made a prerequisite to action by other city departments this power of report, whether it may be disregarded or overruled by these depart- ments or not, should be limited to the consideration of the more general aspects of those few matters which most vitally affect the city plan ; for the number of rnatters which relate to the city plan are very great; indeed there is very little of the city's business which does not in some degree or detail have such a bearing, and to refer most of the business transacted by the entire body of the city's officials to any one authority would PLANNING ADMINISTRATION IN THE UNITED STATES 561 cause intolerable friction and delay, even if -these officials were under no obligation to follow its advice. Perhaps the best method of giving this carefully defined power to the commission is to establish an official city map of those features which, unlike the commission's "general advice" map, city officials shall be compelled to follow. This map should become binding when adopted by the legislative branch of the city government, and should of course be amendable in the same way in which it is adopted. It should be the duty of the planning commission to prepare this map and suggest such additions and changes in it from time to time as seem desirable. Being binding upon the city no improvement could be inaugu- rated until first made legally a part of the map; and the adop- tion and change of this map should be forbidden until referred to the commission. More or less adequate precedents for such a map exist in legislation and practice in the country. 30 In default of such a map the matters in which a report from the commission is a prerequisite to. final action may be referred to it by naming them in the statute or ordinance. Among the features of city construction which, it seems clear, should be referred to the commission in this way are highways of all sorts, including parkways, with their building lines or setbacks, 31 sewers, water pipes, conduits, bridges, via- ducts, tunnels, and other incidents; and parks, playgrounds, squares and other public open spaces ; and the water front, with its pier and bulk head lines, docks, warehouses, and other har- bor improvements; and public buildings; and privately owned buildings, such as street railway stations and ferry sheds, in so far as located on public property; and transit lines and other public utilities, both on public and on private property, in so far as the permit for them is issued by the city. A precedent for the inclusion of most, if not all, of these features will be " Perhaps the best is that of New York City. For a reference to the provisions with regard to the map of that city, see Tables of Statutes. 41 Building lines or setbacks are a part of the official map of New York City. Laws, 1917, ch. 631-632 (called "Court Yards abutting streets"), given in full on p. 185. 562 THE LAW OF CITY PLANNING AND ZONING found in legislation in this country. 32 Some statutes go fur- ther, embracing all "public improvements"; 33 but this would seem to be both too broad and too indefinite. The same care that must be exercised in deciding what features of city construction shall be referred to the commis- sion is needed in determining in what detail these selected fea- tures shall be so referred. Certainly it should pass upon the "location" of these features, which should include change of location, enlargement, alteration, discontinuance, etc. ; and upon the width and grade of highways; and upon the plotting of subdivisions of private land; for all of which there is precedent in this country. In some laws the commission is directed to pass on the "design" S4 of features with regard to which it is given juris- diction. This is giving the commission duties proper for an art commission to perform, and is wise only when such a course is advisable. Miscellaneous Powers. In the various planning laws and ordinances, commissions are given a variety of specific and limited powers and entrusted with a number of duties, some more or less closely related to planning and others having no particular connection with it. The union of the planning and park boards, as provided for in some laws, 85 is open to many objections. The planning of the details of parks, and their use and maintenance, is a task which should be entrusted, if pos- sible, to specialists. 36 Under some laws the commission is given full power in the selection and condemnation of land for certain public purposes, such as parks. 37 This, to the extent " This statement is based upon the examination of the statutes for the preparation and adoption of plans or maps and the appointment of planning commissions cited in the notes and tables of this chapter, to which the reader desiring to verify it is referred. "Minnesota, 1919, ch. 292. **As, for instance, in the Wisconsin statute, already referred to. "Mass. Acts, 1915, ch. 165; ordinance, City of Schenectady, New York, approved December 9, 1912; 16 Connecticut Special Laws 1035 (1913, No. 351. sec. 10). **The combination of planning and park boards has many of the ad- vantages in exceptional cases, and disadvantages in most cases, that obtain in the combination of planning anl art commissions referral to bdow. "Detroit Charter, ch. X, sec. 7 (f), Akron, Ohio, Charter, sec. 102. PLANNING ADMINISTRATION IN THE UNITED STATES 563 that it makes the commission practically the board of public works or the council of the city, is open to the same objections that have been urged against other provisions having such a result. Without citing all the powers of this nature conferred upon planning commissions in the various laws and ordi- nances 38 it may be said in general that in so far as possible the duties of the commission should be limited to planning. Art Commissions. An art commission of a city has three primary duties : to guide the city in making its public works more attractive; to prevent the defacement of the city by semi-public corporations and the occasional private corpora- tion or individual who builds on, over or under city property ; and to defend the city from the ignorance or egotism of those seeking a public location for inappropriate gifts to it. Espe- cially difficult to exercise wisely is the authority over gifts to the city and enterprises involving the use of public property. It takes tact to refuse or impose conditions upon the acceptance of a gift in such a way as not to arouse sympathy for the donor or discourage the generosity of other possible donors. It takes constant vigilance to deal with those wishing to place, for their own profit, unattractive structures on public property. The entire matter is one concerning which the general public knows little and cares less, and it is therefore justifiable to give the expert liberal powers. r Unless located on public property, art commissions cannot as yet at least regulate or in any way control, under the police power, the appearance of private property, however prom- inently it may be in public view ; for this is regarded as aesthetic regulation, forbidden by our constitution 39 In a few cases the law creating the commission authorizes it to offer its advice to individuals or corporations in such of their enterprises, in law private, as would materially affect the public interest ; 40 they, of course, are under no obligation to take such advice, but sometimes recognize its value. 88 See Detroit Charter, ch. X, sec. 7 (C) ; 15 Connecticut Special Laws, p. 43 (1907, No. 61, sec. 5), Minnesota 1919, ch. 292, p. 300, sec. 3. ** As our civilization develops, it is quite possible that the law on this subject will change; see Part VI. *E. g., Ala., 1919, p. 880; 111., 1915, p. 260. 564 THE LAW OF CITY PLANNING AND ZONING The art commissions which have been most successful have seen the need of originality and diversity in the work by which the city was to profit. They have been careful not to create an art censorship; they have not done the work for the artist or imposed their ideas upon him, except as a last resort in the case of the hopelessly bad workman. They have rather limited themselves to giving aid in the selection of a site, and refusing to allow the city to be burdened in perpetuity with the hopelessly bad. Occasionally, when the powers of the commission were statutory or under an ordinance instead of being a grant in the state constitution, the city authorities, perhaps with the aid of the state legislature, have exempted a pet enterprise from the supervision of the commission; occasionally political pressure has overcome their well-founded opposition to a project or in- fluenced their decision with regard to it ; occasionally they have made glaring mistakes ; and often they have failed to secure the best design for the city. They have, however, prevented the city from being burdened with a vast mass of hopelessly bad work, and by choosing the simple and appropriate design they have saved the city large sums of money and at the same time obtained for it a more pleasing result. In proportion to the value of the work passed upon, and even in proportion to the direct money saving to the city, it is safe to say that the ex- penses of successful commissions like those of New York or Philadelphia are insignificant. 41 41 Under some of the Art Commission laws (e. g., that of New York City, given in full on p. 584 of this work) certain members must be ap- pointed by the appointing authority from a list proposed by certain societies not connected with the city government. This arrangement has been criticised on the ground that it unduly fetters the appointing authority and limits his responsibility, that it gives persons not nected with the government undue power, which, possibly, they may exercise for the furthering of personal interests, etc. ; and praised be- cause it secures better men for technical tasks than any other method. The device is not limited to the appointment of art commissions, but is usually employed only in technical matters. What few legal decisions there are on the general subject sust.iin the legality of this procedure. Bellows v. City Council of Cincinnati, II Ohio State Reports, 544 (1860); In re Bulger, In re Merrill, 45 Cal. 533 (1873) I see also Spring Valley Water Works v. San Francisco, 61 Cal. 3, at p. 7 (1881). In so far, however, as a state constitution, in its "home rule" pro- visions or elsewhere, prescribes that local officials shall be elected l>y local electors or appointed by local authorities, it would seem to render PLANNING ADMINISTRATION IN THE UNITED STATES 565 The Combination of Art and Planning Commissions. In several statutes the planning commission is also the art commission of the city. 42 Except in small cities or towns, where it may be difficult to find suitable men in sufficient num- bers to serve on the two bodies, the wisdom of this course is doubtful. It is true that beauty is and must be an integral part of construction and not an afterthought; it is true that beauty and fitness for the purposes for which the structure or other improvement is intended cannot be divorced, or either of them considered separate from location. Nevertheless the types of men who are fitted to serve on an art commission and on a plan- ning commission are widely different, and better results will be obtained where it is possible to keep the two commissions cooperating but separate. The state statute with regard to local art commissions is usually an empowering act, giving the local community the right to create such a commission if it sees fit; but the statute, almost invariably, provides that, once created, the consent of the commission is essential to the purchase or acceptance as a gift of works of art ; and as a rule its approval of the design, and in some cases of the location of public buildings and buildings of any such laws invalid, since they limit the right of appointment. See, for instance, New York constitution, art. X, sec. 2; People ex rel. Bolton v. Albertson, 55 N. Y. 50 (1873) ; Allison v. Welde, 172 N. Y. 421 (1902) ; Matter of Brenner, 170 N. Y. 186 (1902) ; Rathbone v. Wirth, 150 N. Y. 459 (1896) ; People ex rel. Balcom v. Mosher, 163 N. Y. 32 (1900). See, however, matter of Kane v. Gaynor, 144 App. Div. 196, 129 N. Y. Supp. 280, affd. 202 N. Y. 615 (1911), and the civil service cases cited below. The legislature may prescribe reasonable qualifications for those who are to be appointed to office. Scott v. Saratoga Springs, 131 Appellate Division Reports (N. Y.) 347 (1909) ; People ex rel. Devery v. Coler, 173 N. Y. 103 (1903) ; Hellyer v. Prendergast, 176 Appellate Division Reports (N. Y.) 383 (1917) ; People ex rel. Qua v. Gaffney, 142 Appel- late Division Reports (N. Y.) 122 (1911). Civil service regulations are reasonable provisions in this connection. Rogers v. Common Council of Buffalo, 123 N. Y. 173 (1890) ; Chittenden v. Wurster, 153 N. Y. 664 (1897) ; People v. Angle, 109 N. Y. 564 (1888) ; People ex rel. Weintz v. Burch, 79 Appellate Division Reports (N. Y.) 156 (1903) ; Butler v. White, 83 Federal Reporter 578 (1897). It should be noted that art. X, sec. 2 of the New York constitution, referred to above, does not prevent the appointment to an office created after the adoption of that constitution in such manner as the legislature may direct ; see Allison v. Welde, cited above. 42 As, for instance, the law for the planning of third class cities and smaller communities in New Jersey, given in full on p. 578 and the Ohio planning law. 566 THE LAW OF CITY PLANNING AND ZONING individuals or private or semi-public corporations on public land, is required. There are also state art commissions, to which usually only advisory power is granted, and a national commission, whose power, also, is advisory. Zoning Administration. The first statute in this country providing for systematic zoning and it is only such zoning that will be here considered was passed by the State of New York in 1914. This statute was permissive, authorizing the city of New York, if it saw fit to do so, to prepare and adopt a zoning regulation and a plan dividing the city into height, area and use districts in accordance with its terms. The statute left the preparation and administration of the regulation entirely to the city authorities but to a certain extent specified the man- ner in which they should proceed in so doing. In these respects the subsequent zoning laws passed in various states in this country have followed New York. These statutes sometimes select certain cities or classes of cities on whom to confer the zoning power, sometimes extend the power also to the smaller communities. 43 "These statutes are given in the Tables of Statutes below. The New York law provides for the division of the city into "districts of such number, shape and areas as it [the city] may deem best suited to carry out the purposes" of the law; and most of the later laws in other states are similar in this respect. The California and Oregon laws, however, pro- vide specifically for the division of the city into districts to segregate "the several classes of business, trades, or callings, the location of apart- ment or tenement houses, club houses, group residences, two family dwellings, single family dwellings, and the several classes of public, and semi-public buildings," etc. See with regard to this difference pp. -H>7 t 277, 291 of this work. The California and Oregon laws are the only ones that specifically provide for the regulation of "callings," which would include professions, etc., that are not usually called trades or business, the regulation of which is specifically mentioned in the other laws. The regulation of callings is probably covered in most cases, by other provisions of these laws. It is most important that the law should authorize the regulation of the use of vacant land (see p. 191 on this point). The Ohio and District of Columbia laws specifically mention "premises" in this connection, which would include land. With the exception of the Massachusetts law, the other statutes in most connections probably provide for the regula- tion of land. The Massachusetts constitutional amendment and law under it, limit regulation to "buildings." The New Jersey law, like the New York law in this respect, provides for the regulation of "the location of trades and industries" hut not of residences. In a New Jersey case (Bell v. Town of \\Ystfie1d. pending. December, 1921, in the Supreme Court of the state) it is claimed that, PLANNING ADMINISTRATION IN THE UNITED STATES 567 Preparation and Adoption of Regulation and Plan. The New York law of 1914 provided that the city of New York in its zoning should appoint a commission to make inves- tigations, and prepare the regulations, and the plan for dividing the city into districts under it; that this commission should then hold public hearings and make its report to the Board of Estimate and Apportionment the upper legislative body of the city and go out of existence; that the Board of Estimate should be free to take such action on this report as it saw fit, but that it should not adopt a regulation or plan until it had received the report. 44 As a rule 45 the states passing zoning laws, influenced by the example of New York, provide that the zone regulation shall be prepared by some commission or other body distinct from the city council and that the council shall await this report before acting in this matter. For this purpose sometimes a commission is formed, made up largely of city officials, the existence of which is continued to investigate and report on amendments as they are proposed ; 46 oftener the planning com- mission of the city is used for the purpose. Generally, as under the New York law, the council is forbidden to act until the re- under this law, residential districts may be created by segregating trades and industries, but that there is no authority for creating different classes of residential districts (such as one family, and multi-family districts) or of regulating residences, by use, in any way. The statute also provides for the regulation of the "location of build- ings designed for specified uses." Quaere, whether this does not au- thorize the regulation of the location of one family and multi-family houses, as such uses. If the present statute does not authorize the creation of such resi- dential districts, the legislature may, if desired, pass a statute providing for such districts, if not contrary to the constitution of the state and nation. With regard to the constitutional question, see p. 291 of this work. Such a statute (P. L. 1922, p. 277, ch. 162, amending P. L. 1920, ch. 240) has now been passed. 44 With regard to the New York Commission and its work see p. 271. 45 In the following laws there are no special provisions with regard to the preparation and adoption of the Zone regulation and plan; Massa- chusetts ; New Jersey, 1920, ch. 240 ; New York cities law ; Pennsylvania, first-class cities law; Wisconsin. In Wisconsin ten voters can petition for a zoning regulation. Under the Washington law the regulation and plan are prepared and adopted by a special body made up of the commis- sioners for the district and a few additions. 46 New Jersey 1917, ch. 54; 1918, ch. 146, as amended by 1920, ch. 274; 1921, ch. 276. 568 THE LAW OF CITY PLANNING AND ZONING port has been received ; and then by a majority vote, as in other matters, 47 can take such action as it sees fit. Amendments. As a rule the zoning laws recognize that zoning regulations and the districts created under them, al- though properly subject to change, should be stabilized as much as possible. To that end they occasionally provide that the special body or planning commission that prepared the regula- tion and plan shall investigate and report to the council on amendments before the council shall act on them. 48 Usually, however, the action of interested property owners is relied on. Thus the New York laws provide that : "If ... a protest against such amendment, supplement or change be presented, duly signed and acknowledged by the owners of twenty per centum or more of any frontage pro- posed to be altered, or by the owners of twenty per centum of the frontage immediately in the rear thereof, or by the owners of twenty per centum of the frontage directly opposite the frontage proposed to be altered, such amendment shall not be passed except by the unanimous vote of the council." 48 In giving the property owners the right to require that amendments and changes shall be passed by more than a ma- jority vote of the legislative body of the city, many of the zoning laws follow New York, but as a rule do not require a unanimous vote for the purpose. 50 *In Ohio a three-fourths' vote of the entire membership of the coun- cil is required to vary from the report. See also the Illinois law. *New Jersey, 1917, ch. 54, New Jersey 1918, ch. 146, as amended by 1920, ch. 274. Missouri, 1921, p. 481, approved April i. *The quotation is from the New York Cities law. The law for New York City is practically the same. **In Massachusetts the statute empowering cities and towns to pass zoning regulations (1920, ch. 601) provides (sec. 9) that: "If any owner of real estate in a city which would be affected by the proposed repeal or modification objects thereto, it shall not be repealed or modified ex- cept by a unanimous vote of all the members of the city council : and in no case shall an ordinance or bylaw established under the provisions of this act be repealed or modified except by a two-thirds vote of all the members of the city council, or by a two-thirds vote of the voters of a town voting thereon at an annual or special town meeting duly called for the purpose." The meaning of the word "affected" in this connection has not as yet been judicially determined. It is to avoid all doubts of this sort that the statutes and ordinances usually specify what property owners shall be deemed to be affected, and therefore have the right to object. PLANNING ADMINISTRATION IN THE UNITED STATES 569 Boards of Appeal. The statutes and ordinances dealing with building are invariably full of technical details. Such details are to be found in greater number in the building code of a city than in its zoning ordinance; but, for all practical pur- poses, the code and the ordinance are one long and complicated regulation with which the builder must comply. A failure to observe these requirements always involves work to be done over, increased carrying charges, loss of income and heavy expenses of many sorts. It is therefore important that there should be a quick hearing and appeal from any contested deci- sion of the city officials who enforce these ordinances. In New York City, boards of appeal, created to revise the decisions of officials acting under other statutes and municipal regulations with regard to buildings, were empowered to perform the same function in the administration of the zoning resolution; and most of the states in their zoning laws now authorize the munic- ipalities having the right to pass zoning ordinances, to em- power existing bodies to hear appeals or create bodies for the purpose. For reversal more than a majority vote is generally required. A function of boards of appeal quite as important as the correction of errors, is that of deciding border line and excep- tional cases, and of varying the requirements of zoning regu- lations in harmony with their spirit, in cases where to carry them out literally would cause unnecessary and excessive hard- ship. On this subject Edward M. Bassett, Esq., Counsel of the Zoning Committee of New York City says : 51 "If zoning were done under eminent domain there would be no special need for a board of appeals. The only effective zoning, how- ever, is done under the police power of the state. This power can only be invoked for the health, safety, morals and general welfare of the community. No money compensation is made to land owners although they part with somewhat of the absolute, unqualified con- trol of their own property. All owners are supposed to be benefited by regulation in the interest of the community whereby each owner 61 In a pamphlet, published in 1921, entitled The Board of Appeals in Zoning. The Zoning Committee is a voluntary organization, which exists for the purpose of aiding in the enforcement of the New York City zoning resolution, and incidentally is of great aid to zoning in other parts of this country. The second edition of this pamphlet is in press. 570 THE LAW OF CITY PLANNING AND ZONING to some extent is compelled so to use his own as not to injure another, and therefore each owner cannot complain so long as this commu- nity power is exercised reasonably, impartially and without confisca- tion or arbitrariness. The zoning resolution of the city of New York, which city was the first in this country to attempt comprehensive zoning, has been pronounced constitutional by the highest court of the state because that court considered it to be a reasonable and non- confiscatory exercise of the police power. "'In a great metropolis like New York, in which the public health, welfare, convenience and common good are to be considered, I am of the opinion that the resolution was not an incumbrance, since it was a proper exercise of the police power. The exercise of such power, within constitutional limitations, depends largely upon the discretion and good judgment of the municipal authorities, with which the courts are reluctant to interfere. The conduct of an individual and the use of his property may be regulated.' Lincoln Trust Co. v. Williams Bldg. Corp., 229 N. Y. 313. "Wherever the application of a zoning ordinance is arbitrary the courts are likely to declare it void in that particular. After an ordi- nance has been declared void in five or six particulars it has little binding force. Just here is where the need of a board of appeals comes in. However careful the council may be to avoid provisions that may turn out to be arbitrary, every builder knows that excep- tional situations will arise where the written rule fails to provide the right thing in a specific case. No words of a written law can pre- scribe what ought to be done in the thousands of exceptions which can arise in the construction and use of buildings. The council of a large city cannot and ought not to give its time to granting specific permits for buildings. The ordinance and maps should be compre- hensive and when altered the alterations should apply comprehen- sively and not be limited to a single building or plot. Some board that can investigate the environment, view the plot or building if necessary and express an expert opinion on the situation, should in proper cases under the guidance of the rules laid down by the coun- cil be given power to vary the strict letter of the law. "An outlying unbuilt district may properly be zoned as residen- tial. In it there may be a hill composed of good sand for cement blocks. It is both economy and common sense that some board should have authority to permit the temporary use of cement block making. The ordinance should give such power to a board of appeals. If there is no board of appeals, the council itself would have to con- sider the question of altering the sand hill from a residence district to an unrestricted district so that the cement block works might be built and operated. But this change would open up the locality for a chemical factory or some other nuisance factory that might later prevent the upbuilding of the district with good residences. The other horn of the dilemma would be for the council to make a specific exception for the sand hill and allow cement blocks to be made tem- porarily. Where, however, the council itself goes into the field of making specific exceptions for particular plots or buildings all over the city, it would mean the breakdown of the zoning ordinance. The best way to handle the subject is for the council to control the ordi- nance and maps which should be as permanent as possible, and a board of appeals should exercise discretion on specific permits of exceptional character. "Sometimes the dividing line between residence and business dis- tricts will run through a single lot leaving the business portion too small for a suitable store. The owner's neighbors on either side may have had stores erected before the passage of the zoning ordinance, so that his lot is not eligible for a residence. If now he cannot put up a paying store, his property is practically confiscated by the zon- ing ordinance. The court would very likely declare that in his case the zoning ordinance is arbitrary and void. A well drawn ordinance, however, should provide that in exceptional cases like this a board of appeals should have power to issue a permit, allowing the store building under suitable safeguards to be projected into the residence district. If there was no board of appeals, the owner could obtain a writ of mandamus against the building commissioner who refused him his permit for a store building. This would bring directly before the courts the question of whether the ordinance in this particular was arbitrary and void, and the courts would probably say that it was. If, however, there was a board of appeals given authority in the ordinance to exercise its discretion in border-line cases, the owner could not at once obtain a writ of mandamus. He must first exhaust the remedies which the law has given him. If there is a board of appeals with power to issue permits in exceptional cases like his, he must make his application to the board of appeals, which application, if meritorious, would be granted. If the board of appeals considered that the application was not meritorious, then the owner could not obtain his writ of mandamus with any chance of success. The court trying the case would say that an expert body especially constituted under the law of the state and appointed by the city had given him his day in court and had found that his applica- tion was not meritorious. His legal counsel would probably advise him against the mandamus and would apply for a writ of certiorari to review the action of the board of appeals. This review is usually predicated on the constitutionality of the ordinance. In the five years of operation of the zoning resolution of the city of New York not a single writ of mandamus under it against any one of the bor- ough building superintendents has come up for trial. Such ques- tions have always gone before the board of appeals where a very large proportion of them have been settled to the satisfaction of the 572 THE LAW OF CITY PLANNING AND ZONING litigants. The decisions of the board of appeals have been reviewed by certiorari in a considerable number of cases but without damage or danger of damage to the integrity of the zoning resolution. If the city of New York did not have a board of appeals in connection with the zoning resolution with its duties defined in the charter and the resolution itself, there is no doubt that numerous cases would have come before the courts involving the constitutionality of the zoning resolution. The decisions in some of these cases would un- doubtedly have been adverse. Instead of this the existence of the board of appeals has probably been the greatest element in making possible the remarkable statement that for five years there has not been any declaration of a court that any provision, however minute, of the New York zoning resolution and maps is unconstitutional. "The two illustrations given above could be multiplied. Like all exceptional situations those arising in the planning of buildings come unexpectedly. No words can be comprehensive enough to embrace them all. Some of them arise where lots are of odd sizes and shapes. Sometimes a new building is the completion of a unit, part of which was built before the zoning ordinance, and adaptation is necessary. Sometimes a required court would only be of advantage to an exist- ing building that had left no open space whatever. Sometimes great unnecessary expense can be avoided in the design of a business building and yet it can be adapted to the spirit of the law. Some- times it is the prevention of public garages near schools and hos- pitals when located in districts which otherwise would permit them. Sometimes it is the enlargement of a store or factory on land already owned and where irremediable loss would be caused to the owners if they were compelled to move elsewhere in order to enlarge their building space. Many such situations would be fraught with danger to the zoning plan if there were no board of appeals."* "A hoard of appeals, having the right to give or withhold relief at Its discretion, may grant it subject to conditions, and thus obtain results which it could not get in any other way. By this method the board of appeals of New York City has repeatedly made a?sthetic requirements, such as that the facade of a business structure extending from a busi- ness into a residential district should, on the residential street, be con- structed with due regard to the amenities of the residential district. Sometimes the condition is imposed to preserve the quiet and comfort of the more restricted district, as when the permit requires the business structure to have its entrances all on the business street, thus to some extent keeping employees and customers off the residential street. It is interesting to note that in Cleveland, Ohio, a board of appeals is given the power to mitigate any hardship in the administration of a building line, or setback ordinance, which does not provide for com- pensation (No. 52247- A. B., passed December 6. 1920) ; and that the highest court in Connecticut, in upholding a statute making a building and street line plan, imposed upon property owners under the police power, binding on them, says that the plan must be presumed to be a PLANNING ADMINISTRATION IN THE UNITED STATES 573 For the creation of boards of appeal statutory authority is necessary; it cannot be done by the vote of the legislative body of the city alone. In passing upon the validity of such a vote by the upper legislative authority of New York City, creating such a board the New York court said : "The board of estimate having been vested by the legislature with the power of framing the regulations and restrictions provided for by the acts of 1914 and 1916, could not, in the absence of express legislative authority, depute to an inferior board the power to dis- pense in its discretion with compliance with such regulations. If the board of estimate had such a power to be exercised or not in its discretion, it could not delegate such discretion to a subordinate administrative or ministerial board. Birdsall v. Clark, 73 N. Y. 73; Phelps v. City of New York, 112 id. 216, 220; Ontario Knitting Co. v. State, 205 id. 409, 416. The question has ceased to be of impor- tance for future cases, because of the amendment made this year to section 242b, which expressly authorizes the board of estimate to confer such power on the board of appeals." 6 Where a board of appeals is endeavoring to obviate prac- tical difficulties and avoid unnecessary hardships in the admin- istration of a zoning regulation, there seems to be a tendency for it unduly to magnify its powers. In this connection Mr. Bassett says : 5 * "Before the board of appeals can make an adjustment under this provision it must first find that there is a practical difficulty or an unnecessary hardship, and after that find and prescribe an alterna- tive' method that is in harmony with the purpose and intent of the zoning resolution. If, for instance, the board of estimate has made a certain street block a business district, it is not within the power of the board of appeals to declare that the street is so depressed that it is an unnecessary hardship to prevent a lot owner from building a public garage which is prohibited in such a district. If the locality is so depressed as to warrant this statement, the board of appeals should refer the applicant to the board of estimate so that the board of estimate as the legislative authority of the city may change the district from business to unrestricted. It is not for the board of reasonable one because an appeal is allowed in the act to the regular courts. (Windsor v. Whitney et al., 95 Conn. 357 (1920), see also Ingham v. Brooks et al., 95 Conn. 317 (1920). For a further reference to this case, see p. 36. 63 People ex rel. Beinert v. Miller, 100 Misc. 318 at 326. M In the pamphlet just cited. 574 THE LAW OF CITY PLANNING AND ZONING appeals to endeavor to make this piece of legislation through the form of a non-conforming permit on the ground of unnecessary hard- ship. Similarly if such a locality is a residence district, it is not for the board of appeals to say that stores have become so numerous, that on the ground of unnecessary hardship it will permit another store to be built by the applicant. That is alteration and not adjustment. If the district has become so much of a business district that it is an unnecessary hardship to prevent a man from building a store, then it is for the board of estimate to make it a business district and not for the board of appeals to try to accomplish the same result by exceeding its powers. The provision giving the board of appeals power to vary in cases of unnecessary hardship is a salutary one where it is meant to apply. These comprise architectural necessities in designing buildings, adaptation of buildings to irregular and unusual lots or environment, completion of architectural units already partly built and a multitude of adjustments that the human mind cannot foresee or express in words. In general what can be equally well accomplished by a change in the resolution or maps is never within the power of the board of appeals but always within the power of the board of estimate and apportionment. 'Equally well accom- plished" means so accomplished for the benefit of the community and not for the benefit of the applicant." To the same effect is a recent decision of the New York courts, in rendering which the judge says: 65 "But the board contends it had the power to grant this applica- tion under section 20 of the zone regulations without regard to any consents. This section provides, 'Where there are practical diffi- culties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this resolution the board of appeals shall have power in a specific case to vary any such provisions in harmony with its general purpose and intent so that the public health, safety and general welfare may be secured and substantial justice done. . . .' Apparently the board's contention is that this section gives them the power to do whatever they think is right regardless of the provisions of the statute. But it does not grant any such power. The board cannot wholly disregard the provisions of the statute or of the regulations. It can merely 'vary' them to do 'sub- stantial justice* when the 'strict letter' of the provisions would work hardships. The provisions of this section are almost identical with those of subdivision 5 of section 719 of the charter as added by ** People ex rel. Cotton v. Leo, 1 10 Miscellaneous Reports ( N. Y. ) 1920) ; affirmed 104 Appellate Division Reports (N. Y.) 921 (1920); see also Altschul v. Ludwig, 216 N. Y. 459 (1916) ; People ex rel. Hyman v. Leo, 108 Miscellaneous Reports (N. Y.) 39 (1919). PLANNING ADMINISTRATION IN THE UNITED STATES 575 chapter 503 of the Laws of 1916. And under that section it has been held that the board could not disregard the provisions of the statute. People ex rel. Cockcroft v. Miller, 187 App. Div. 704. And the zoning resolutions have the force and effect of a statute. Matter of Stubbe v. Adamson, 220 N. Y. 459, 465." On the other hand it is not for the court to substitute its judgment with regard to the proper solution of a zoning diffi- culty for that of the board of appeals. In reversing the deci- sion of the judge of an inferior court who had forgotten this principle the upper court said : 56 "There is ... a presumption in favor of the correctness of the determination arrived at by the board of appeals, and the court should not interfere with the discretion vested in that body unless that discretion has been arbitrarily exercised or is erroneous in law. The hearings before the board of appeals are not intended merely as the first step in an application to the Supreme Court for a permit, and the Supreme Court should not upon the hearing of a writ of certiorari reverse a determination of the board of appeals, even though the justice presiding might himself have arrived at a dif- ferent conclusion if the application had been submitted to him in the first instance, and he had a right to exercise his own untrammeled discretion. . . . Each application must be determined upon its own merits, and persons aggrieved by a decision of the board of appeals have a right to appeal from such decision, but such decisions in nowise affect property holders in other sections of the city and in nowise bind the board of appeals when new applications are made for similar relief. It is true that the law presumes that the board of appeals will act reasonably upon all applications brought before them, and so far as possible will arrive at its decisions in all cases by the application of the same rules and methods of reasoning, but each case must stand or fall upon its own peculiar facts, and even though I might believe that in some instances the board of appeals gave greater weight to the interest of the applicant and less weight to the position of other property holders than it has done in this case, that fact would M People ex rel. Ruth v. Leo et al., New York Supreme Court, New York County, New York Law Journal, March 29, 1921, pp. 2195 and 2196. See also People ex rel. Facey v. Leo, no Misc. 516; 230 N. Y. 602. People ex rel. Helvetia Realty Co. v. Leo, New York Law Journal, June 29, 1920, p. 1101; 195 App. Div. 887. People ex rel. Sondern v. Walsh, 108 Misc. 193. Matter of West Side Mortgage Co. of New York v. Leo, 174 N. Y. Supp. 451. People ex rel. Flegenheimer v. Leo, New York Law Journal, May 8, 1918; 186 App. Div. 893. 576 THE LAW OF CITY PLANNING AND ZONING constitute no ground for a reversal of this decision of the board of appeals if upon the facts proven here that decision is not unreason- able as a matter of law. It follows that the writ must be dismissed, with costs." Importance of Administration. With the growth and ever-increasing density of population in our cities, the need of more detailed and stricter regulation of the interrelated rights of the city dwellers is more and more evident. While it is true that the failure to enact such regulations would be a failure to provide for the well-being of the inhabitants of the city, it is also true that the enforcement of these regulations is a growing burden to certain classes in the community, and an increasing expense which ultimately is borne by the city dwellers as a whole. It is therefore essential that these ordinances should receive careful study, in order that they may be simplified, and enforced justly and with the least possible hardship to those compelled to comply with them. Note I GENERAL PLANNING LAWS IN THE UNITED STATES No. i. THE MINNESOTA PLANNING LAW* SEC. i. City Planning Department for Minneapolis; Commission and Membership. That an additional executive department in the government of cities of the first class not organized under section 36 of article IV of the state constitution shall be created to be known as the "city planning department" which shall be in charge of a city planning commission, consisting of nine persons. One shall be the mayor of the municipality; the city council, the school board, the park board and the county board of the county in which the munici- pality is situated shall each select one of its own members, as a mem- ber of the commission, in January of each odd numbered year; and four legal voters of the municipality not members of any of the above bodies or boards shall be appointed by the mayor with consent of the city council of the municipality. The first appointments shall be made as soon as practicable after the passage of this act. The appointed members of the commission shall serve for four years. The first members first appointed by the mayor shall so clas- sify themselves by lot that one of the number shall go out of office " 1919, ch. jyj, p. 300 (Approved April 17). PLANNING ADMINISTRATION IN THE UNITED STATES 577 at the end of January of the odd year next after their appointment; one at the end of one year thereafter, and one at the end of two years thereafter; and shall certify the result of the classification to the city clerk. Vacancies for any unexpired term shall be filled by appoint- ment as in the first instance. The members of the commission shall serve without compensa- tion, but the commission may with the consent of the city council employ engineers or other persons and incur such other expenses as are deemed necessary. The commission shall make and alter rules and regulations for its own organization and procedure. It shall make an annual report to the city council. The term "city council" means the principal governing body of the municipality. SEC. 2. Powers of commission. The city planning commission shall have power, except as otherwise provided by law : 1. To acquire or prepare a comprehensive city plan for the future physical development and improvement of the city, based primarily upon public utility, convenience and general welfare, which plan shall be known and designated as the official city plan. 2. To prepare and recommend to the proper officers of the munici- pality, specific plans for public improvements consistent with the com- prehensive plan for the city. 3. To recommend to the city council of the municipality, ordi- nances regulating the height, location and ground areas of buildings and structures, and ordinances providing for the division of the city into districts or zones based upon the height, ground areas and use of all buildings and structures. SEC. 3. City council may grant certain powers. The city coun- cil of the municipality may pass ordinances authorizing the city plan- ning department to administer and enforce ordinances relative to city planning. SEC. 4. Commissions to approve public improvements contem- plated. No public improvements shall be authorized to be constructed in the municipality until the location and design of the same have been approved by the city planning commission, provided in case of disapproval the commission shall communicate its reasons to the city council, or other governing body which has control of the construc- tion of the proposed improvement; and the majority vote of such body shall be sufficient to over-rule such disapproval. If the reasons for disapproval are not given to the city council or other governing body within thirty days after the plans for the public improvements are submitted to the city planning commission, said plan shall be deemed to be approved by the city planning commission, provided that the term "public improvements" shall as herein used include "works of art" as defined in chapter 154, General Laws 1901. 578 THE LAW OF CITY PLANNING AND ZONING SEC. 5. Plans, plats, etc., to be submitted to commission for ap- proval or rejection. All plans, plats, or replats, of land hereafter laid out in building lots and streets, alleys or other portions of the same intended to be dedicated to public use, or for the use of pur- chasers or owners of lots fronting thereon, or adjacent thereto, and located within the city limits, shall be submitted to the city planning commission for its approval; and it shall be unlawful to receive or record such plans in any public office unless the same shall bear thereon, by endorsement or otherwise, the approval of the city plan- ning commission. The disapproval of such plan, plats, or replats, by the city planning commission, shall be deemed a refusal by the city of the proposed dedication shown thereon. The approval of the com- mission shall be deemed an acceptance by the city of the proposed dedication; but shall not impose any duty upon the city concerning the maintenance or improvements of any such dedicated parts, until the proper authorities of the city shall have made actual appropria- tions of the same by entry, use or improvements. The duty of the city planning commission in accepting or reject- ing a plat shall be deemed legislative and discretionary and not administrative. SEC. 6. This act shall take effect and be in force from and after the date of its passage and approval. No. 2. THE NEW JERSEY MUNICIPAL PLAN AND ART COMMISSION ACT" 1. This act may be referred to as the "Municipal Plan and Art Commission Act." It shall apply to all third class cities, fourth class cities, boroughs, towns, townships and incorporated villages of this State (and only to those) which shall accept the provisions of this act as hereinafter stated. 2. Any municipality mentioned in section one of this act may by a majority vote of the mayor and common council, or other similar governing body of whatsoever name called, authorize the appointment of a municipal plan and art commission for such municipality. Such commission shall consist of six men, all of whom shall reside in said municipality, and one of whom may be a member of the common council or other similar governing body of the municipality. The commissioners shall be appointed by the mayor or other head of the municipality, with the advice and consent of the council or other similar governing body, as the case may be. Each commissioner shall be appointed for a term of six years, except that when the commission shall be first created, one commissioner shall be appointed for a term of six years, one for a term of five years, one for a term of four "P. L. 1915, p. 350, ch. 188, as amended P. L. 1920, p. 414, ch. 216; and supplemented P. L. 1916, p. 377, ch. 175. years, one for a term of three years, one for a term of two years and one for a term of one year, except also, in case of any vacancy occurring in said commission, the vacancy shall be filled for the balance of the unexpired term in each instance as it arises; to the end that such commission shall be maintained as a continuing body with normally one commissioner to be nominated by the mayor and confirmed by the council in each year. In every municipality in which a municipal plan and art commission shall be appointed under the pro- visions of this act, the mayor or other executive head of such munici- pality shall also be ex-officio a member of such commission during his term of office. 3. 09 After January first, one thousand nine hundred and twenty- one in every municipality mentioned in section one of this act which shall not have constituted a municipal plan and art commission in the manner prescribed in section two of this act, legal voters residing therein in number equaling or exceeding twenty per centum of the votes cast in the last preceding election for municipal officers may, by petition addressed to the clerk of the county in which such munici- pality is located, call an election of the legal voters of such munici- pality to vote on the question as to whether such municipality shall have a municipal plan and art commission under the provisions of this act. Such petition, with the execution thereof proven by the oath of one or more witnesses, shall be filed with said county clerk. The election shall be held at the same time as the next succeeding election of members of the General Assembly of the State of New Jersey, following the filing of said petition and by the same election officers. The ballot shall read as follows: Vacancies. ' For the appointment of a Municipal Plan Commission to serve without pay. and Art Against the appointment of a Municipal Plan and Art Commission to serve without pay. Mayor an ex officio member. Petition for election to have plan and art com- mission. When election held. Ballots. and shall be printed on and as a part of the regular official ballot. If a cross mark shall be placed in the square opposite the words "For the appointment of a Municipal Plan and Art Commission, to serve without pay," the vote shall be recorded as in favor of the proposi- Voting, tion. If a cross mark shall be placed in the square opposite the words "Against the appointment of a Municipal Plan and Art Commission, to serve without pay," the vote shall be regarded as against the 1 As amended, P. L. 1920, p. 414. 58 THE LAW OF CITY PLANNING AND ZONING proposition. The result of such election shall be declared by a cer- tificate or certificates signed by the election officers conducting such election and within three days after such election, such certificate or certificates shall be filed with said county clerk, and a duplicate of such certificate or certificates shall, within said three days, also be filed with the mayor or other head of the governing body of the municipality. If the majority of the votes cast at any such election on the question of appointing a commission under the provisions of this act shall be in favor of the appointment of a municipal plan and art commission, such municipal plan and art commission shall be appointed by the mayor or other head of the municipality, with the advice and consent of the council, or other similar body in such municipality, within sixty days after the date of such election. 4. Between December fifteenth and December thirty-first in each year, every such commission appointed under the provisions of this act shall prepare and deliver to the mayor and council or other head of the municipality in which such commission exists, an itemized statement of the amount of money, if any, estimated to be necessary for the work of said commission for the coming calendar year from January first to December thirty-first inclusive, which statement shall be for the information of the mayor and council or other governing body of the municipality, which governing body in its discretion may appropriate in the same manner as other appropriations are made, the amount of such estimate or any portion thereof, and the amount so appropriated shall be assessed, levied and collected in the same man- ner as moneys appropriated for other purposes in such municipality shall be assessed, levied an3 collected. 5. All questions concerning the location or acceptance of any public place, playground, parkway, street, avenue, highway, common, boulevard, square, park, or of the design, acceptance or location of any bridge, viaduct, street or park fixtures or structures, or any pub- lic building (including public library) or works of art, proposed to be erected either wholly or partly by public or private funds, for the benefit of the public in such municipality, shall be referred to such commission by the mayor and council or other similar governing body of such municipality for consideration and report before final action shall be taken thereon .by the mayor and council or other similar governing body. If no report shall be made by said commission within sixty days after the receipt of such reference by the com- mission, the mayor and council or other similar governing body, may proceed without a report, as if this law had not been enacted. If a report shall be made by the commission, action by the mayor and council or other similar governing body in harmony with the recom mendations of such report, may be taken by a majority vote, but no action by the mayor and council or such similar governing body adverse to the recommendations of such report shall be valid, unless Prepare plans for systematic develop- ment of munici- pality. such action shall be taken by a two-thirds vote of the mayor and council or other similar governing body. The term "works of art" as used in this section, shall apply to Definition, and include all monuments, fountains, mural decorations, sculptures and all structures of a permanent character intended for ornament or commemoration. This act shall take effect immediately. [The above act has been amended by adding the following:] 1. When any municipal plan and art commission appointed under the terms of the act to which this is a supplement determines in its judgment that it is advisable and for the best interests of the city, borough or other municipality in which it is appointed, to prepare plans for the systematic and further development and betterment of such municipality, it shall then be the duty of such municipal plan and art commission to prepare such plans, and in doing so the said municipal plan and art commission may consider and investigate any subject matter tending to the development and betterment of such municipality and make such recommendations as it may deem advis- able concerning its government and for any purpose make or cause to be made surveys, plans or maps. It shall have the power and Assistants, authority to employ experts and clerks and to pay for their services, and to pay for such other expenses as such commission may lawfully incur under the powers hereby granted, including the necessary dis- bursements incurred by its members in the performance of their duties as members of said commission, provided such disbursements shall have been authorized by such commission; and further provided, that Proviso. the total amount so expended for all purposes in any one year shall not exceed the appropriation for such year as heretofore provided. 2. This act shall take effect immediately. No. j. THE NEW YORK CITY AND VILLAGE PLANNING LAW* GENERAL MUNICIPAL LAW, ARTICLE I2A. CITY AND VILLAGE PLANNING COMMISSIONS SEC. 234. Creation, appointment and qualifications. 235. Officers, expenses and assistance. 236. General powers. 237. Maps and recommendations. 238. Private streets. 239. Rules. 239-3. Construction of article. 234. Creation, appointment and qualifications. Each city and incorporated village is hereby authorized and empowered to create a commission to be known as the city or village planning com- 80 1913, ch. 699, as amended 1920, ch. 377. 582 THE LAW OF CITY PLANNING AND ZONING mission. Such commission shall be so created in incorporated villages by resolution of the trustees, in cities by ordinance of the common council, except that in cities of the first class, having more than a million inhabitants, it shall be by resolution of the board of estimate and apportionment or other similar local authority. In cities of the first class such commission shall consist of not more than eleven, in cities of the second class of not more than nine, in cities of the third class and incorporated villages of not more than seven members. Such ordinance or resolution shall specify the public officer or body of said municipality, that shall appoint such commissioners, and shall provide that the appointment of as nearly as possible one third of them shall be for a term of one year, one third for a term of two years, and one third for a term of three years; and that at the expira- tion of such terms, the terms of office of their successors shall be three years; so that the term of office of one third of such commis- sioners, as nearly as possible, shall expire each year. All appoint- ments to fill vacancies shall be for the unexpired term. Not more than one third of the members of said commission shall hold any other public office in said city or village. In a county containing a popula- tion of over three hundred thousand and adjoining a city of the first class one of the members of such commission may reside outside of such village. SEC. 235. Officers, expenses and assistance. The commission shall elect annually a chairman from its own members. It shall have the power and authority to employ experts, clerks, and a secretary, and to pay for their services and such other expenses as may be nec- essary and proper, not exceeding, in all, the annual appropriation that may be made by said city or village for said commission. The body creating the commission shall by ordinance or resolution pro- vide what compensation, if any, each of such commissioners shall receive for his services as such commissioner. Each city and incor- porated village is hereby authorized and empowered to make such appropriation as it may see fit for such expenses and compensation, such appropriations to be made by those officers or bodies in such city or village having charge of the appropriation of the public funds. SEC. 236. General powers. The body creating such planning commission may, at any time, by ordinance or resolution, provide that the following matters, or any one or more of them, shall be referred for report thereon, to such commission by the board, commission, commissioner or other public officer or officers of said city or village which is the final authority thereon before final action thereon by such authority : the adoption of any map or plan of said city or incorporated village, or part thereof, including drainage and sewer or water system plans or maps, and plans or maps for any public water front, or marginal street, or public structure upon, in or in connec- tion with such front or street, or for any dredging, filling or fixing PLANNING ADMINISTRATION IN THE UNITED STATES 583 of lines with relation to said front; any change of any such maps or plans ; the location of any public structure upon, in or in connection with, or fixing lines with relation to said front; the location of any public building, bridge, statue or monument, highway, park, park- way, square, playground or recreation ground, or public open place of said city or village. In default of any such ordinance or resolu- tion all of said matters shall be so referred to said planning com- mission. The body creating such planning commission may, at any time, by ordinance or resolution, fix the time within which such planning commission shall report upon any matter or class of matters to be referred to it, with or without the further provision that in default of report within the time so fixed, the planning commission shall for- feit the right further to suspend action, as aforesaid with regard to the particular matter upon which it has so defaulted. In default of any such ordinance or resolution, no such action shall be taken until such report is so received, and no adoption, change, fixing or location as aforesaid by said final authority, prior thereto, shall be valid. No ordinance or resolution shall deprive said planning commission of its right or relieve it of its duty, to report, at such time as it deems proper upon any matter at any time referred to it. This section shall not be construed as intended to limit or impair the power of any art commission, park commission or commissioner, now or hereafter existing by virtue of any provision of law, to refuse consent to the acceptance by any municipality of the gift of any work of art to said municipality, without reference of the matter, by reason of its proposed location or otherwise, to said planning com- mission. Nor shall this section be construed as intended to limit or impair any other power of any such art commission or affect the same, except in so far as it provides for reference or report, or both, on any matter before final action thereon by said art commission. SEC. 237. Maps and recommendations. Such planning commis- sion may cause to be made a map or maps of said city or village or any portion thereof, or of any land outside the limits of said city or village so near or so related thereto that in the opinion of said plan- ning commission it should be so mapped. Such plans may show not only such matters as by law have been or may be referred to the planning commission, but also any and all matters and things with relation to the plan of said city or village which to said planning commission seem necessary and proper, including recommendations and changes suggested by it; and any report at any time made, may include any of the above. Such planning commission may obtain expert assistance in the making of any such maps or reports, or in the investigations necessary and proper with relation thereto. SEC. 238. Private streets. The body creating such planning commission may at any time, by ordinance or resolution provide that 584 THE LAW OF CITY PLANNING AND ZONING no plan, plot or description, showing the layout of any highway or street upon private property, or of building lots in connection with or in relation to such highway or street shall, within the limits of any municipality having a planning commission, as aforesaid, be received for record in the office of the clerk of the county where such real property is situated, until a copy of said plan, plot or description has been filed with said commission and it has certified, with relation thereto, its approval thereof. Such certificate shall be recorded as a part of the record of said original instrument containing said plan, plot or description. No such street or highway which has not re- ceived the approval of the planning commission shall be accepted by said city or village until the matter has been referred to such com- mission under the provision of section two hundred and thirty-six of this article. But if any such street is plotted or laid out in accord- ance with the map of said municipality, adopted according to law. then it shall not be necessary to file such copy, or obtain or record such certificate. SEC. 239. Rules. Such commission may make rules not contrary to law, to govern its action in carrying out the provisions of this article. SEC. 239-3. Construction of article. This article shall be con- strued as the grant of additional power and authority to cities and incorporated villages, and not as intended to limit or impair any existing power or authority of any city or village. Any city or incorporated village in order to appoint a planning commission under this article shall recite, in the ordinance or resolu- tion so creating the commission, the fact that it is created under this article. No. 4. THE NEW YORK CITY ART COMMISSION LAW CHARTER, CH. XII, TITLE 2 ART COMMISSION SEC. 633. Art commission; how constituted. 634. Members of commission; how chosen; vacancies. 635. Officers. 636. Offices to be provided ; expenses, how met. 637. All works of art to be submitted to and approved by the commission. 638. Time for decision limited. 639. Removal or relocation of works of art; duty of com- mission. SEC. 633. Art Commission; how constituted. There shall be an art commission for the city of New York, composed as follows: PLANNING ADMINISTRATION IN THE UNITETJ STATES 55 1. The mayor of the city of New York, ex officio. 2. The president of the Metropolitan museum of art, ex officig. 3. The president of the New York public library (Astor, Lenox and Tilden Foundation), ex officio. 4. The .president of the Brooklyn institute of arts and sciences, ex officio. One painter, one sculptor and one architect, all residents of The City of New York; and three other residents of said city, none of whom shall be a painter, sculptor or architect or member of any other profession in the fine arts. All of the six last mentioned shall be appointed by the mayor from a list, of not less than three times the number to be appointed, proposed by the fine arts federation of New York. In all matters of which such commission takes cognizance pertaining to work under the special charge of a commissioner or department, the commissioner having such special charge shall act as a member of the commission. Each of the aforesaid presidents may appoint a trustee of the institution or corporation of which he is president to serve in his place as ex officio member of said com- mission. Such appointment shall be in writing and shall be revocable at any time by such president. It shall terminate whenever he ceases to be president. Until the appointment be so revoked or terminated, any trustee so appointed shall be an ex officio member of said com- mission with like powers and duties as the president who has appointed him. SEC. 634. Members of commission-; how chosen; vacancies. The painter, sculptor and architect, members of the commission, shall choose by lot one, two and three year terms of office ; the three other appointed members of the commission shall also choose by lot one, two and three year terms of office, and the appointment of their successors, after the expiration of the first year of this commission, shall be for a term of three years. All appointments to fill vacancies shall be for the unexpired term. In case any vacancy shall occur in the commission, by reason of death, resignation, incapacity, re- fusal to serve, or otherwise, the vacancy shall be filled by appoint- ment, as provided in section six hundred and thirty-three of this act. In case the fine arts federation shall fail to present a list of nomi- nees as aforesaid within three months from the time when any appointment is to be made, the Mayor shall appoint without such nomination. SEC. 635. Officers. The commission shall serve without compen- sation as such, and shall elect a president, vice-president and secre- tary from its own members, whose terms of office shall be for one year and until their successors are elected and have qualified. The commission shall have power to adopt its own rules of pro- cedure. Five commissioners shall constitute a quorum. 586 THE LAW OF CITY PLANNING AND ZONING SEC. 636. Offices to be provided; expenses, how met. Suitable offices shall be provided for the commission by the board of estimate and apportionment. The expenses of the commission shall be paid by the city; and the amount of the same shall be fixed annually by the board of estimate and apportionment and the board of alder- men. SEC. 637. All works of art to be submitted to and approved by the commission. Hereafter no work of art shall become the prop- erty of the city of New York, by purchase, gift or otherwise, unless such work of art or a design of the same, together with the proposed location of such work of art, shall first have been submitted to and approved by the commission; nor shall such work of art until so approved be contracted for, erected or placed in or upon, or allowed to extend over or upon any street, avenue, square, common, park, public building, or other public place belonging to the city. The commission may, when they deem proper, also require a complete model of the proposed work of art to be submitted. The term "work of art" as used in this title shall apply to and include all paintings, mural decorations, stained glass, statues, bas reliefs or other sculp- tures; monuments, fountains, arches, or other structures of a perma- nent character intended for ornament or commemoration. No exist- ing work of art in the possession of the city shall be removed, re- located or altered in any way without the similar approval of the commission, except as provided in section six hundred and thirty-nine of this act. The commission shall act in a similar capacity, with similar powers, in respect of the designs of buildings, bridges, ap- proaches, gates, fences, lamps or other structures erected or to be erected upon land belonging to the city, and in respect to the lines, grades and plotting of public ways and grounds and in respect of arches, bridges, structures and approaches which are the property of any corporation or private individual, and which shall extend over or upon any street, avenue, highway, park or public place belonging to the city, and said commission shall so act and its approval shall be re- quired for every such structure which shall hereafter be erected or contracted for; except that in case of any such structure which shall hereafter be erected or contracted for at a total expense not exceed- ing two hundred and fifty thousand dollars, the approval of said com- mission shall not be required, if the mayor or the board of aldermen shall request said commission not to act. But this section shall not be construed as intended to impair the power of the park board to refuse its consent to the erection or acceptance of public momum-nts or memorials or other works of any sort within any park, square or public place in the city. SEC. 638. Time for decision limited. If the commission shall fail to decide upon any matter submitted to it within sixty days after such submission, its decision shall be deemed unnecessary. PLANNING ADMINISTRATION IN THE UNITED STATES 587 SEC. 639. Removal or relocation of works of art; duty of com- mission. In case the immediate removal or relocation of any exist- ing work of art shall be deemed necessary by the mayor, the com- mission shall within forty-eight hours after notice from him approve or disapprove of such removal or relocation, and in case of their failure so to act within forty-eight hours after the receipt of such notice, they shall be deemed to have approved of the same. No. 5. PLANNING PROVISIONS OF THE CHARTER AND ORDINANCE OF CLEVELAND, OHIO CHARTER OF THE CITY OF CLEVELAND SEC. 77. There shall be a city plan commission to be appointed by the mayor with power to control, in the manner provided by ordi- nance, the design and location of works of art which are, or may become, the property of the city; the plan, design and location of public buildings, harbors, bridges, viaducts, street fixtures and other structures and appurtenances; the removal, relocation and alteration of any such works belonging to the city; the location, extension and platting of streets, parks and other public places, and of new areas; and the preparation of plans for the future physical development and improvement of the city. Ordinance of City of Cleveland SEC. 4. Hereafter no public building, harbor, bridge, viaduct, street fixture, or other structure or appurtenance shall be located, con- structed, erected, renewed, relocated, or altered until and unless such plan, design or location shall have been submitted to and approved by the commission; and no such work when completed shall be ac- cepted by the city until and unless it shall have been approved by the commission as provided in sec. 77 of the City Charter. No. 6. THE PENNSYLVANIA GENERAL PLAN ACT" SEC. 9. Every municipal corporation shall have power to open, Power to widen, straighten, or extend streets or alleys, or parts thereof, within t ^"' ts etc '' its limits, and to vacate streets or alleys, or parts thereof. . . . The widening or straightening ordinances shall fix the new line or lines, and may require that thereafter no owner or builder shall erect any new building or rebuild or alter the front of any building already erected without making it conform to the new lines, in which Wlthm n 1891, May 16 ; P. L. 75, as amended by 1913, July 22, P. L. 902, and 1921, May 17, P. L. 844. See also 1871, June 6, P. L. 1353, which affects only Philadelphia. Buildings must be built new lines. 588 THE LAW OF CITY PLANNING AND ZONING case the landowner's right of action shall accrue only when the said municipal corporation actually enters on and occupies the land within the said lines, or the said building is located or relocated to con- form to said lines. . . . SEC. 12. Every municipality shall have a general plan of its streets and alleys, parks and playgrounds, including those which have been or may be laid out, but not opened; which plan shall be filed in the office of the engineer or other proper office of the municipality, and all subdivisions of property thereafter made shall conform there- to. The location of streets or alleys, or parts thereof, or parks or playgrounds, laid out and confirmed by authority of councils, shall not afterwards be altered without the consent of councils ; and no map or plot of streets or alleys or parks or playgrounds, shall be entered or recorded in any public office of the county in which said munici- pality is situated until approved by councils. No person shall here- after be entitled to recover any damages for the taking for public use of any buildings or improvements of any kind which may be placed or constructed upon or within the lines of any located street or alley, or park or playground, after the same shall have been lo- cated or ordained by councils. No. 7. PLANNING PROVISION OF PENNSYLVANIA STATE HIGHWAY ACT" SEC. 8. The State Highway Commissioner shall also have power, with the approval of the Governor, to establish the width and lines of any State Highway before or after the construction, reconstruc- tion, or improvement of the same, not, however, exceeding the maxi- mum width fixed by law for public roads. Whenever the State High- way Commissioner shall establish the width and lines of any such State Highway, he shall cause a description and plan thereof to be made, showing the center line of said highway and the established width thereof, and shall attach thereto his acknowledgment. There- upon such description, plan, and acknowledgment shall be recorded in the office of the recorder of deeds of the proper county, in a sepa- rate book kept for such purpose, which shall be furnished to the recorder of deeds by the county commissioners at the expense of the county. No owner or occupier of lands, buildings, or improvements shall erect any building or make any improvements within the limits of any State Highway the width and lines of which have been estab- lished and recorded as provided in this section, and, if any such erection or improvement shall be made, no allowance shall be had therefor by the assessment of damages. *Penn. Laws 1921, April 6, P. L. 107, amending 1911, M*y 3', p - L - PLANNING ADMINISTRATION IN THE UNITED STATES 589 No. 8." THE PENNSYLVANIA PLANNING ACT FOR THIRD CLASS CITIES; THE PROVISION FOR APPROVAL OF PLANS SEC. 5. All plans, plots, or re-plots of lands laid out in building lots, and the streets, alleys, or other portions of the same intended to be dedicated to public use, or for the use of purchasers or owners of lots fronting thereon or adjacent thereto, and located within the city limits of a city of the third class, or for a distance of three miles outside thereof, shall be submitted to the City Planning Commission and approved by it before it shall be recorded. And it shall be un- lawful to receive or record such plan in any public office unless the same shall bear thereon, by endorsement or otherwise, the approval of the City Planning Commission. The disapproval of any such plans by the City Planning Commission shall be deemed a refusal of the proposed dedication shown thereon. The approval of the commission shall be deemed an acceptance of the proposed dedication; but shall not impose any duty upon the city concerning the maintenance or im- provement of any such dedicated parts, until the proper authorities of the city shall have made actual appropriation of the same by entry, use, or improvement. No sewer, water, or gas-main, or pipes, or other improvement, shall be voted or made within the area under the jurisdiction of said commission, for the use of any such purchasers or owners; nor shall any permit for connection with or other use of any such improvement existing, or for any other reason made, be given to any such purchasers or owners until such plan is so approved. Where the jurisdictional limit of three miles outside of the city limits, as provided in this section, may conflict with the zone of simi- lar character connected with another city of the third class, the juris- diction of said commission shall extend only to the point equidistant between the city limits and the limits of said municipality. Plans, plots, etc. Dedication! Recording. Disap- proval. Approval. Sewers, water, or gas-main. Jurisdic- tional limit. No. 9. THE PROPOSED MASSACHUSETTS METROPOLITAN PLANNING ACT In 1911, Massachusetts (Acts and Resolves, ch. 84) caused an investigation to be made as to the desirability of appointing a plan- ning commission for the Metropolitan District of Boston and its vicinity, a report of which was made to the legislature of the state in 1912 (House Report No. 1615). That report recommended the "1913, July 16; P. L. 752, being Pa. St. 1920, sec. 4383. Similar laws in other states are supplemented in a few cases by statutes requiring the record of plats. A similar act 1911, June 10, P. L. 872, was amended in 1921, May 17, P. L. 841, by inserting at the beginning of the section, immediately after sec. 5 the words "all plans of streets for public use, and." 590 THE LAW OF CITY PLANNING AND ZONING appointment of such a commission and transmitted with its report a draft of an act (never passed) for that purpose, which is as follows: SEC. i. The governor, by and with the consent of the council, shall appoint three persons, and the mayor of Boston shall appoint two persons, who shall constitute a board to be known as the Metro- politan Planning Board. The members of said board shall hold office for terms of five years each beginning with the first Monday in May in the year nineteen hundred and twelve. Upon the expiration of the terms of the members so first appointed the governor shall appoint three members, one to serve for five years, one for three years and one for one year, and the mayor shall appoint two members, one to serve for four years and one for two years. Thereafter the respec- tive appointments by the governor and mayor shall be for terms of five years. The governor shall appoint the chairman of the said board. SEC. 2. The jurisdiction and powers of said board shall extend to and may be exercised in the cities of Boston, Cambridge, Chelsea, Everett, Lynn, Maiden, Medford, Melrose, Newton, Quincy, Somer- ville, Waltham, and Woburn, and in the towns of Arlington, Bel- mont, Braintree, Brookline, Canton, Cohasset, Dedham, Dover, Hing- ham, Hull, Milton, Nahant, Needham, Revere, Saugus, Stoneham, Swampscott, Wakefield, Watertown, Wellesley, Weston, Westwood, Weymouth, Winchester, and Winthrop, and the said cities and towns together with any others that may be included by subsequent legisla- tion shall constitute the metropolitan district within the meaning of this act. SEC. 3. Except as hereinafter expressly provided nothing in this act shall be construed as affecting the powers now vested by law in any public authority. SEC. 4. Duties and powers of the said board: A. It shall be the duty of the said board to make or obtain surveys of the metropolitan district as herein defined, and for the purpose of making such surveys it shall have the right to do all reasonable and necessary acts. B. It shall be the duty of the said board to make a comprehensive plan or series of plans for the present and probable future require- ments of the metropolitan district in respect to a system of traffic thoroughfares and other main highways, transportation facilities of every sort suitably coordinated, sites for public buildings, parks, play- grounds and other public uses, and any and all public improvements tending to the advantage of the metropolitan district as a place of business and of residence. C. It shall be the duty of the said board to study and, in its dis- cretion, it may recommend such legislation applicable to the metro- politan district as will facilitate the prevention and relief of ca- tion of population and of traffic, the better control of fire hazard, the better distribution of areas and of buildings for the purposes of resi- PLANNING ADMINISTRATION IN THE UNITED STATES 591 dence, manufacturing, trade and transportation, the preservation of the natural and historic features of the district, the beautifying thereof, the coordination of transportation facilities, the best method of financing and assessing the cost of public improvements or any other matter relating to a coordinated civic development within the said metropolitan district. D. It shall be the duty of the said board to examine and make public reports upon all plans directly affecting the metropolitan dis- trict or more than one city or town therein made under authority of law, and for the purpose of such examination it shall be the duty of any existing public authority before making any contract or agree- ment for the execution of plans of the character aforesaid for any public improvements within the metropolitan district to inform the Metropolitan Planning Board as to such plans and give the said board reasonable opportunity for examining the same. The said reports may specifically approve or disapprove of said plans in whole or in part as the said board may by its examination determine, and shall state the reasons for such approval or disapproval. Wherever it is possible and desirable to effect a coordination of the plans for im- provements within the said metropolitan district of two or more agencies, whether now existing or hereafter created and with local or general jurisdiction, it shall be the duty of the said board to seek to effect such a coordination. E. If in the opinion of the said board any plan for a public im- provement proposed for execution by the legally constituted authority in any county, city or town within the district conflicts with some existing or proposed public improvement of metropolitan character the board shall so inform the executive of the said county, city or town, whereupon the said county, city or town may abandon the proposed improvement, or shall execute the same in accordance with the plan of the said Metropolitan Planning Board, or shall postpone action upon the question of execution for not less than one year, after which such lawful action may be taken as the said county, city or town through its legally constituted authority may deem expedient. F. The said board shall have the power when so requested by the authorities of any county, city or town within the said metro- politan district to furnish assistance for the making of plans or specifications or the supervision of the execution of public works at the cost of such assistance or supervision. G. The board may place the question of the execution of any given metropolitan improvement within the limits of the metropolitan district before the government of each political unit in which such improvement is physically situated, and before any succeeding gov- ernment in its discretion. It shall present estimates of cost with any plans for improvements whenever the question of execution is placed before public authorities. Every proposed improvement or any part 592 THE LAW OF CITY PLANNING AND ZONING thereof when accepted by the government of the municipal unit in which it is situated, or by any other constituted authority having power to make such improvement, or part thereof, shall be executed by such government or authority whether now existing or hereafter created. SEC. 5. The approval by the board of any plan or plans accepted by municipal authorities or boards of county commissioners or sub- mitted to said Metropolitan Planning Board as hereinbefore provided, may in set terms designate and classify the improvements therein shown or any portion of them as ordinary or extraordinary metro- politan improvements. The cost of ordinary metropolitan improve- ments executed under the provisions of this act shall be paid as fol- lows : sixty-five per cent by the municipality or municipalities in which the improvement is physically situated ; twenty-five per cent by the remaining cities and towns constituting the said district in proportions determined by the commission appointed by the supreme judicial court as hereinafter provided and ten per cent by the com- monwealth. The cost of extraordinary metropolitan improvements executed under the provisions of this act shall be paid as follows : such proportion thereof, not exceeding sixty-five per cent, as may be determined by the said commission appointed by the supreme judicial court as aforesaid, by the municipality or municipalities in which the improvement is physically situated; such amount, not less than twenty-five per cent thereof, as may be determined by the aforesaid commission by the remaining cities and towns constituting the said district, in proportions determined as aforesaid and ten per cent by the commonwealth. SEC. 6. To meet the cost of the improvements executed in ac- cordance with the provisions of this act, the treasurer and receiver general shall upon application of the Metropolitan Planning Board, issue scrip or certificates of debt in the name and on behalf of the commonweath and under its seal to the amount annually necessary for five years from the date of the first of such applications. In no one year shall the proportion to be paid by the commonwealth as its part in the expenses authorized by section five of this act exceed five hundred thousand dollars and the amount of scrip or certificates of debt issued in any one year as aforesaid shall be limited accord- ingly. All loans issued by the commonwealth in accordance herewith shall be serial loans and shall be made payable in annual instalments in the manner authorized by section thirteen of chapter twenty-seven of the Revised Laws as amended by section one of chapter three hundred and forty-one of the acts of the year nineteen hundred and eight. Such scrip or certificates of debt shall be designated on the face as the Metropolitan Planning Board Loan, shall be counter- signed by the governor, and shall be deemed a pledge of the faith and credit of the commonwealth, and the principal and interest PLANNING ADMINISTRATION IN THE UNITED STATES 593 shall be paid at the times specified therein in gold coin of the United States; and said scrip or certificates of debt shall be sold and dis- posed of at public auction or in such other mode and at such times and prices, and in such amounts and at such rates of interest as the governor and council shall deem best. Any premium realized on the sale of said scrip or certificates of debt shall be applied to the payment of the interest on said loan as it accrues. SEC. 7. The supreme judicial court sitting in equity shall in the year nineteen hundred and twelve and every year thereafter on the application of the Metropolitan Planning Board, or of the attorney of any of the cities or towns in the metropolitan district, and after notice to each of said cities and towns, appoint three commisisoners, neither of whom shall be a resident of any of said cities or towns, who shall, after such notice and hearing as they shall deem just and equitable, determine the proportions in which each of said cities and towns shall pay money into the treasury of the commonwealth for the year following that in which the application is made to meet the interest, serial loan requirements, expenses, including the expenses of 'administration, and cost for such year. Said commission shall make such apportionment on or before the first day of March in each year. The said commissioners shall determine the several amounts to be paid by the cities and towns of the metropolitan district other than those in which ordinary or extraordinary improvements are situated to the aggregate amount of twenty-five per cent of the total cost of improvements classified as ordinary. In the case of improvements classified as extraordinary, they shall also determine how far, if at all, the proportion of the total cost of such improvements to be paid by the municipalities in which they are physically situated shall be re- duced below sixty-five per cent and correspondingly increased as regards some or all of the remaining municipalities comprising the metropolitan district. The proportion to be ultimately payable by the commonwealth shall be ten per cent of the total cost whether for ordinary or extraordinary improvements. The amounts severally to be paid by the separate municipalities shall be apportioned by the said commissioners on the basis of benefit in each case and with due account of population, valuation and any other thing which, in the opinion of the said commission, should affect the said proportional contributions: provided, however, that nothing herein shall be con- strued to change the apportionment of the cost for public improve- ments to which the commonwealth already contributes under existing laws. 64 SEC. 8. Said board may appoint such office and technical as- 64 A study of the apportionment of assessments according to benefits, between the city as a whole, the various boroughs of the city, and the land owners in New York City, will reveal some analogy between it and the apportionment here suggested. See Charter, sees. 972-973- 594 THE LAW OF CITY PLANNING AND ZONING sistants as it seems necessary to carry out the purposes of this act. It shall determine the duties and compensations of such appointees and remove them at pleasure. It shall be supplied with a suitable office or offices for its work and for its maps, plans, documents and records. The chairman of the said board shall receive a salary of ten thousand dollars a year and each of the other four members thereof shall receive a salary of one thousand dollars a year. The salaries of the commissioners and their appointees and the expenses of adminis- tration shall be paid from the treasury of the commonwealth and shall be thereafter assessed ninety per cent thereof upon the cities and towns of the metropolitan district as herein defined in propor- tions to be determined by a commission appointed by the supreme judicial court sitting in equity as hereinbefore provided and ten per cent by the commonwealth. On or before the second Wednesday of January in each year said board shall make a report in print of its proceedings to the general court, together with a full statement of its receipts and disbursements, and the said board may make such additional reports in print or otherwise from time to time as it may deem expedient. SEC. 9. The treasurer of the commonwealth shall in the year nineteen hundred and twelve and in each year thereafter estimate, in accordance with the proportions determined and returned as afore- said, the several amounts required during the year beginning with the first day of January from the cities and towns aforesaid, to meet said interest, serial loan requirements, salaries, expenses, including expenses of administration and cost for each year, and deficiency, if any, and shall include the amount required from a city or town in, and make it a part of, the sum to be paid by such city or town as its annual state tax and the same shall be paid by the city or town into the treasury of the commonwealth at the time required for the payment, and as a part of its state tax. SEC. 10. This act shall take effect upon its passage so far as it affects the appointment of the members of the Metropolitan Plan- ning Board and in all other respects this act shall take effect on the first day of nineteen hundred and twelve. No. 10. THE PENNSYLVANIA SUBURBAN METROPOLITAN PLANNING ACT" WHEREAS, The establishment of Suburban Metropolitan Planning Commissions having jurisdiction over territory adjacent to cities of the first class is desirable, in order to provide for its proper develop- ment by the cooperation of the various local governmental units in matters pertaining to their common welfare; and "i9>3. May 23; P. L. 339; repealed by 1915, June I ; P. L. 705. PLANNING ADMINISTRATION IN THE UNITED STATES 595 WHEREAS, It is desirable, that there should be coordination of effort, with Urban Metropolitan Planning Commissions, relating to cities of the first class themselves, wherever the same may exist: SEC. i. Be it enacted, etc., That in order to secure coordinated, comprehensive plans of highways and roads, parks and parkways, and all other means of inter-communication, water-supply, sewerage and sewage disposal, collection and disposal of garbage, housing, sanitation and health playgrounds, civic centers, and other public improvements, as hereinafter provided for, the districts surrounding and within twenty-five miles of the limits of cities of the first class, whether in one or more counties, and in order to prevent waste by unnecessary duplication, the areas included within twenty-five miles of the limits of cities of the first class shall be denominated the Suburban Metropolitan Districts of cities of the first class of Penn- sylvania. When any city, borough or township is partly within and partly without the twenty-five mile limit, the whole of such city, bor- ough, or township shall be regarded as within the Suburban Metro- politan District. SEC. 2. There shall be an executive department created for every Suburban Metropolitan District, to be known as the Department of Suburban Metropolitan Planning, which shall be in charge of a Suburban Metropolitan Planning Commission. SEC. 3. The Suburban Metropolitan Planning Commission shall be appointed by the Governor of the State of Pennsylvania, and shall consist of fifteen members, who may or may not hold other public office, whether for profit or otherwise, of whom twelve shall be residents of the district involved, and three shall be residents of the said city of the first class, five members to be appointed to serve for one year, five for two years, five for three years; then, there- after, each appointment to be for three years. An appointment to fill a casual vacancy shall be for the unexpired portion of the term. Nine shall constitute a quorum. The Suburban Metropolitan Planning Commission shall make and alter rules and regulations for its own organization and pro- cedure, consistent with the laws of the Commonwealth. From its own members it shall choose a chairman and vice-chairman. Each member shall serve without compensation. On or before January tenth of each and every year, the Commission shall make to the mayor of each city, to councils of each borough, to the commis- sioners of each first class township, and to the supervisors of each second class township, within the Suburban Metropolitan District, to the mayor of the said city of the first class, and to the Governor of the State of Pennsylvania, a report of its transactions and recom- mendations. The Commission may employ a secretary, engineers, and other experts and persons, whose salaries and wages, as well as all Cities of the first class. Suburban Metropol- itan districts. Suburban Metropol- itan plan- ning com- mission. Appoint- ment of commis- sion. Term of office Vacancies. Rules and Regula- tions. Reports. Assistants and em- ployees. 596 THE LAW OF CITY PLANNING AND ZONING the other necessary expenses of the Commission and members thereof, shall be provided for as hereinafter set forth. SEC. 4. The Suburban Metropolitan Planning Commission shall make, or cause to be made, and laid before the respective govern- mental authorities of the district, and, in its discretion, cause to be published, a map or maps of the entire district, or any portion or portions thereof, showing any or all systems of transportation, high- ways and roads, parks, parkways, water-supply, sewerage and sewage disposal, collection and disposal of garbage, housing, sanitation, play- grounds and civic centers, or of other natural physical features of the district: and it shall prepare plans for any new or enlarged facilities for intercommunication, parks, parkways, water-supply sys- tems, sewers, sewage disposal, garbage disposal, land plottings and housing arrangements, playgrounds and civic centers, or any other public improvement that will affect the character of the district as a whole, or more than one political unit within the district, or any widening, extension or relocation of the same, or any change in the existing township or borough or city plans, by it deemed advisable. And it shall make recommendations to the respective governmental authorities, from time to time, concerning any such matters or things aforesaid, for action by the respective legislative, administrative, or governmental bodies thereon; and in so doing have regard for the present conditions and future needs and growth of the district, and the distribution and relative location of all the principal and other streets, and railways, waterways, and all other means of public travel and business communications, as well as the distribution and relative location of all public buildings, public grounds, and open spaces de- voted to public use, and the planning, subdivision and laying out for urban uses of private grounds brought into the market from time to time. SEC. 5. Any city, borough, or township, within any Suburban Metropolitan District, may request the Suburban Metropolitan Plan- ning Commission of that district to prepare plans concerning any of the subjects set forth in section four of this act; whereupon it shall be the duty of the Commission to prepare such plans with dispatch. SEC. 6. The Suburban Metropolitan Planning Commission may make recommendations to any public authorities, or any corporation or individual in said districts, with reference to the location of any buildings and structures to be constructed by them. SEC. 7. The plans so made and laid before the respective govern- mental authorities by the Suburban Metropolitan District Planning Commission, according to sections four, five and six, shall be con- sidered by such respective authorities, and followed by them in so far as shall be determined by each authority : Provided, however, that the provisions of this act shall not abridge or in any way affect the provisions of an act, entitled "An act crc- PLANNING ADMINISTRATION IN THE UNITED STATES 597 ating a Department of Health and defining its powers and duties," approved the twenty-seventh day of April, Anno Domini, one thou- sand nine hundred and five ; or the provisions of an act, entitled "An act to preserve the purity of the waters of the State for the protec- tion of the public health," approved the twenty-second day of April, one thousand nine hundred and five. SEC. 8. On or before January tenth of each and every year, Estimate the Commission shall prepare an estimate of its expenses for the ^nses. ensuing year, setting forth with as much detail as is practicable the items of which such estimate is composed; and shall cause the amount of its expenses so estimated, after deducting the cash on hand and the unpaid assessments, to be assessed against the cities, boroughs, and townships within the district, in proportion to their respective tax duplicates. The itemized estimate of expenses and a statement of the rate of assessment shall be spread upon the minutes of the Commission, which shall be kept open at all times for public inspection. Each and every assessment, when certified by the chair- man and secretary of the Commission, shall constitute a charge on the treasury of the respective city, borough, and township, and its immediate payment shall be at once provided for. The Commission shall have power to secure payment of the assessments by suits of mandamus, or otherwise; provided, that the rate of assessment shall not exceed one-tenth of one mill. Assess- ment No. ii. THE NEW YORK, NEW JERSEY COMPACT FOR PLANNING NEW YORK HARBOR "* An Act authorizing designated authorities in behalf of the state of New York to enter into an agreement or compact with designated authorities of the state of New Jersey for the creation of the "Port of .New York District," the establishment of "The Port of New York Authority," and the defining of the powers and duties of such authority. SEC. i. * Commissioners named and authorized to enter into the following compact with the state of Jersey. WHEREAS, In the year eighteen hundred and thirty-four the states p rcam ti e . of New York and New Jersey did enter into an agreement fixing and determining the rights and obligations of the two states in and * Summarized. ^New York Laws 1921, ch. 154; New Jersey Laws, P. L. 1921, p. 412, ch. 151, practically identical with it. See also the various reports of the commission appointed under New York 1917, ch. 426, and New Jersey P. L. 1917. p. 288, ch. 130; and also New York Laws 1921, ch. 203; and New Jersey Laws, P. L. 1921, p. 423, ch. 152. For the original compact, see Laws, New York, 1834, ch. 8; New Jersey P. L. 1834, P- ll &> ratified by the United States, 4 U. S. Statutes at Large 708. 598 THE LAW OF CITY PLANNING AND ZONING about the waters between the two states, especially in and about the bay of New York and the Hudson River; and WHEREAS, Since that time the commerce of the port of New York has greatly developed and increased and the territory in and around the port has become commercially one center or district; and WHEREAS, It is confidently believed that a better coordination of the terminal, transportation and other facilities of commerce in, about and through the port of New York, will result in great econo- mies, benefiting the nation, as well as the states of New York and New Jersey; and WHEREAS, The future development of such terminal, transporta- tion and other facilities of commerce will require the expenditure of large sums of money, and the cordial cooperation of the states of New York and New Jersey in the encouragement of the invest- ment of capital, and in the formulation and execution of the neces- sary physical plans; and WHEREAS, Such result can best be accomplished through the co- operation of the two states by and through a joint or common agency. Now, THEREFORE, The said states of New Jersey and New York do supplement and amend the existing agreement of eighteen hun- dred and thirty-four in the following respects: ART. I. They agree to and pledge, each to the other, faithful co- operation in the future planning and development of the port of New York, holding in high trust for the benefit of the nation the special blessings and natural advantages thereof. ART. II. To that end the two states do agree that there shall be created and they do hereby create a district to be known as the "Port of New York District" (for brevity hereinafter referred to as "The District") which shall embrace the territory bounded and described as follows: . . . The boundaries of said district may be changed from time to time by the action of the legislature of either state concurred in by the legislature of the other. ART. III. There is hereby created "The Port of New York Authority" (for brevity hereinafter referred to as the "Port Au- thority"), which shall be a body corporate and politic, having the powers and jurisdiction hereinafter enumerated, and such other and additional powers as shall be conferred upon it by the legislature of either state concurred in by the legislature of the other, or by act or acts of congress, as hereinafter provided. ART. IV. The port authority shall consist of six commissioners three resident voters from the state of New York, two of whom shall be resident voters of the city of New York, and three resident voters from the state of New Jersey, two of whom shall be resi- dent voters within the New Jersey portion of the district, the New York members to be chosen by the state of New York and the New PLANNING ADMINISTRATION IN THE UNITED STATES 599 Jersey members by the state of New Jersey, in the manner and for the terms fixed and determined from time to time by the legislature of each state respectively, except as herein provided. Each commissioner may be removed or suspended from office as provided by the law of the state for which he shall be appointed. ART. V. The commissioners shall, for the purpose of doing busi- ness, constitute a board and may adopt suitable by-laws for its man- agement. ART. VI. The port authority shall constitute a body, both corpo- rate and politic, with full power and authority to purchase, con- struct, lease and/or operate any terminal or transportation facility within said district; and to make charges for the use thereof; and for any of such purposes to own, hold, lease and/or operate real or personal property, to borrow money and secure the same by bonds or by mortgages upon any property held or to be held by it. No property now or hereafter vested in or held by either state, or by any county, city, borough, village, township or other municipality, shall be taken by the port authority, without the authority or con- sent of such state, county, city, borough, village, township or other municipality, nor shall anything herein impair or invalidate in any way any bonded indebtedness of such state, county, city, borough, village, township or other municipality, nor impair the provisions of law regulating the payment into sinking funds of revenues de- rived from municipal property, or dedicating the revenues derived from any municipal property to a specific purpose. The powers granted in this article shall not be exercised by the port authority until the legislatures of both states shall have approved of a comprehensive plan for the development of the port as herein- after provided.* 1 ART. VII. The port authority shall have such additional powers and duties as may hereafter be delegated to or imposed upon it from time to time by the action of the legislature of either state concurred in by the legislature of the other. Unless and until otherwise pro- vided, it shall make an annual report to the legislature of both states, setting forth in detail the operations and transactions conducted by it pursuant to this agreement and any legislation thereunder. The port authority shall not pledge the credit of either state except by and with the authority of the legislature thereof. ART. VIII. Unless and until otherwise provided, all laws now or hereafter vesting jurisdiction or control in the public service commission, or the public utilities commission, or like body, within each state respectively, shall apply to railroads and to any trans- portation, terminal or other facility owned, operated, leased or constructed by the port authority, with the same force and effect as 87 This approval given, Laws, New York, 1922, ch. 43, New Jersey, 1922, ch. 9, and ratified by U. S. Congress, 1921 and 1922. Commis- sioners to constitute board; bylaws. Port au- thority to constitute corporate and politic body powers relative to terminal or transporta- tion facilities. Powers, when to be exercised. Additional powers and duties. Annual report. Pledging credit of states. Applica- tion of lawj relative to public service commis- sion, etc. 6oo THE LAW OF CITY PLANNING AND ZONING if such railroad or transportation, terminal or other facility were owned, leased, operated or constructed by a private corporation. ART. IX. Nothing contained in this agreement shall impair the powers of any municipality to develop or improve port and terminal facilities. ART. X. The legislatures of the two states, prior to the signing of this agreement, or thereafter as soon as may be practicable, will adopt a plan or plans for the comprehensive development of the port of New York. ART. XI. The port authority shall from time to time make plans for the development of said district, supplementary to or amenda- tory of any plan theretofore adopted, and when such plans are duly approved by the legislatures of the two states, they shall be binding upon both states with the same force and effect as if incorporated in this agreement. ART. XII. The port authority may from time to time make recommendations to the legislatures of the two states or to the con- gress of the United States, based upon study and analysis, for the better conduct of the commerce passing in and through the port of New York, the increase and improvement of transportation and terminal facilities therein, and the more economical and expeditious handling of such commerce. ART." XIII. The port authority may petition any interstate com- merce commission (or like body), public service commission, public utilities commission (or like body), or any other federal, municipal, state or local authority, administrative, judicial or legislative, having jurisdiction in the premises, after the adoption of the comprehensive plan as provided for in article ten, for the adoption and execution of any physical improvement, change in method, rate of transportation, system of handling freight, warehousing, docking, lightering or trans- fer of freight, which, in the opinion of the port authority, may be designed to improve or better the handling of commerce in and through said district, or improve terminal and transportation facilities therein. It may intervene in any proceeding affecting the commerce of the port. ART. XIV. The port authority shall elect from its number a chairman, vice-chairman, and may appoint such officers and em- ployees as it may require for the performance of its duties, and shall fix and determine their qualifications and duties. ART. XV. Unless and until the revenues from operations con- ducted by the port authority are adequate to meet all expenditures, the legislatures of the two states shall appropriate, in equal amounts, annually, for the salaries, office and other administrative expenses, such sum or sums as shall be recommended by the port authority and approved by the governors of the two states, but each state obli- PLANNING ADMINISTRATION IN THE UNITED STATES 601 gates itself hereunder only to the extent of one hundred thousand dollars in any one year. ART. XVI. Unless and until otherwise determined by the action of the legislatures of the two states, no action of the port authority shall be binding unless taken at a meeting at which at least two mem- bers from each state are present and unless four votes are cast there- for, two from each state. Each state reserves the right hereafter to provide by law for the exercise of a veto power by the governor thereof over any action of any commissioner appointed therefrom. ART. XVII. Unless and until otherwise determined by the action of the legislatures of the two states, the port authority shall not incur any obligations for salaries, office or other administrative expenses, within the provisions of article fifteen, prior to the making of appro- priations adequate to meet the same. ART. XVIII. The port authority is hereby authorized to make suitable rules and regulations not inconsistent with the constitution of the United States or of either state, and subject to the exercise of the power of congress, for the improvement of the conduct of navigation and commerce, which, when concurred in or authorized by the legislatures of both states, shall be binding and effective upon all persons and corporations affected thereby. ART. XIX. The two states shall provide penalties for violations of any order, rule or regulation of the port authority, and for the manner of enforcing the same. ART. XX. The territorial or boundary lines established by the agreement of eighteen hundred and thirty-four, or the jurisdiction of the two states established thereby, shall not be changed except as herein specifically modified. ART. XXI. Either state may by its legislature withdraw from this agreement in the event that a plan for the comprehensive de- velopment of the port shall not have been adopted by both states on or prior to July first, nineteen hundred and twenty -three ; and when such withdrawal shall have been communicated to the governor of the other state by the state so withdrawing, this agreement shall be thereby abrogated. ART. XXII. Definitions. The following words as herein used shall have the following meaning : "Transportation facility" shall in- clude railroads, steam or electric, motor truck or other street or highway vehicles, tunnels, bridges, boats, ferries, car-floats, lighters, tugs, floating elevators, barges, scows or harbor craft of any kind, air craft suitable for harbor service, and every kind of transporta- tion facility now in use or hereafter designed for use for the trans- portation or carriage of persons or property. "Terminal facility" shall include wharves, piers, slips, ferries, docks, dry docks, bulk- Action, when binding. Veto. Obliga- tions for expenses. Rules for improve- ment of navigation and com- merce. Penalties. Boundary lines and jurisdicton not to be changed. With- drawal by either state from agreement- 602 THE LAW OF CITY PLANNING AND ZONING heads, dock-walls, basins, car-floats, float-bridges, grain or other storage elevators, warehouses, cold storage, tracks, yards, sheds, switches, connections, overhead appliances, and every kind of termi- nal or storage facility now in use or hereafter designed for use for the handling, storage, loading or unloading of freight at steamship, railroad or freight terminals. "Railroads" shall include railways, extensions thereof, tunnels, subways, bridges, elevated structures, tracks, poles, wires, conduits, power houses, substations, lines for the transmission of power, car-barns, shops, yards, sidings, turn- outs, switches, stations and approaches thereto, cars and motive equipment. "Facility" shall include all works, buildings, structures, appliances and appurtenances necessary and convenient for the proper construction, equipment, maintenance and operation of such facility or facilities or any one or more of them. "Real property" shall in- clude land under water, as well as uplands, and all property either now commonly or legally defined as real property or which may here- after be so defined. "Personal property" shall include choses in action and all other property now commonly or legally defined as personal property or which may hereafter be so defined. "To lease" shall include to rent or to hire. "Rule or regulation," until and un- less otherwise determined by the legislatures of both states, shall mean any rule or regulation not inconsistent with the constitution of the United States or of either state, and, subject to the exercise of the power of congress, for the improvement of the conduct of navigation and commerce within the district, and shall include charges, rates, rentals or tolls fixed or established by the port authority ; and until otherwise determined as aforesaid, shall not include matters relating to harbor or river pollution. Wherever action by the legis- lature of either state is herein referred to, it shall mean an act of the legislature duly adopted in accordance with the provisions of the constitution of the state. Consent, approval or recommendation of municipality; how given. Wherever herein the consent, approval or recommendation of a "municipality" is required, the. word "municipality" shall be taken to include any city or incorporated village within the port district, and in addition in the state of New Jersey any borough, town, town- ship or any municipality governed by an improvement commission within the district. Such consent, approval or recommendation when- ever required in the case of the city of New York shall be deemed to have been given or made whenever the board of estimate and apportionment of said city or any body hereafter succeeding to its duties shall by majority vote pass a resolution expressing such con- sent, approval or recommendation ; and in the case of any municipality now or hereafter governed by a commission, whenever the commis- sion thereof shall by majority vote pass such a resolution; and in all other cases whenever the body authorized to grant consent to 6o 3 the use of the streets or highways of such municipality shall by a majority vote pass such a resolution. Agreement to be binding when duly executed. Authority of governor to fill vacancies among commis- * SEC. 2. * SEC. 3. sioners. * SEC. 4. Commissioners of two states authorized to apply to congress of the United States for ratification of compact, but, with- out it, the compact shall be binding to the extent provided therein. SEC. 5. This act shall take effect immediately. No. 12. THE NEW JERSEY COUNTY PLANNING ACT* SEC. 1601. Every board of chosen freeholders shall have power to prepare and adopt a plan for the betterment and the systematic development of the county, and shall have power and authority to employ experts and to pay for their services, and to pay such other expenses as may be necessary for the making of such plan. SEC. 1602. Every board of chosen freeholders may, by resolu- tion, provide for the establishment of a commission consisting of not more than seven citizens of such county to act as a county plan com- mission. Such commission, if established, shall have all the power and authority conferred upon boards of chosen freeholders by this article, except that the said commission may expend only such sums as may be appropriated for such purpose by the board of chosen free- holders. SEC. 1603. Every board of chosen freeholders adopting any such plan, or any county plan commission appointed hereunder, shall en- deavor to cause all municipalities within the county, and adjoining it, to cooperate in the laying out of roads and boulevards and in the betterment and the systematic development of the county. No. 13. THE CALIFORNIA CAPITAL CITY PLANNING LAW* SEC. I. There shall be a state capital planning commission com- posed of the governor, and state librarian, ex-officio members and three members to be appointed by the governor, at least one of whom shall be a recognized expert in the planning of cities and towns. Ap- pointive members of this commission shall serve without pay and shall hold office in the first instance for terms respectively for two years, four years, and six years and until their successors have been ap- pointed and qualified. Their successors shall serve for terms of six years each and appointment to fill a casual vacancy shall be only for * Summarized. "P. L. 1918, p. 567, ch. 185, art. XVI. * 1915, P- 1514, ch. 757. Develop- ment of county. County plan com- mission. Municipal coopera- tion. planning created. 604 THE LAW OF CITY PLANNING AND ZONING the unexpired portion of the term. Three shall be a quorum. They may make and alter rules and regulations for their own procedure consistent with the laws of the state. They shall consider all matters in city planning affecting the future needs of the state and the rela- tion of the state plans to those of the capital city. SEC. 2. They shall confer and advise with the city planning body o f tne capital city concerning all matters affecting the metropolitan district in and about the said capital city and for a distance within fifteen miles outside the corporate limits of the said city. They shall make recommendations to the governing bodies of all political units within this area and to the governor with regard to all matters of interest to the state in and concerning its capital city with reference to its system of roads, boulevards and thoroughfares, street railway systems, smoke prevention, parks, parkways and playgrounds, water supply, sewage and sewage disposal, collection and disposal of garbage, civic centers, or of other natural or artificial physical features of the district, and of location proposed by it for any new or enlarged thor- oughfares, street railway system, union depot, parks, parkways, play- grounds, water supply systems, sewers, sewage disposal plant, garbage disposal plant and civic centers, or any other public improvement that will affect the character of the district as a whole, to political units within the district. It may make recommendations to the state, city or district governmental authorities, from time to time concerning any such matters or things aforesaid for action by the respective legis- lative. administrative or governing bodies thereof. In so doing they shall have regard for the present conditions and future needs and growth of the district, and the distribution and relative location of all the principal and other streets and railways, waterways, and all other means of public travel and business communication, as well as the distribution and relative location of all public buildings, public grounds and open spaces devoted to the public use. and the planning and lay- ing out for urban uses of private grounds brought into the market from time to time. SEC. 3. The state capital planning commission shall make an an- nual report to the governor which the secretary of state shall cause to be printed as a public document and copies of this report shall be filed with each and every governing body in the district under supervision. No. 14. THE PENNSYLVANIA STATE PLANNING BUREAU ACT" I- The Secretary of Internal Affairs shall establish in the said Department of Internal Affairs a Bureau of Municipalities. The Bureau shall gather, classify, index, make available, and dis- . P. L. 1919, April 4, P- 45- Publicity service. PLANNING ADMINISTRATION IN THE UNITED STATES 605 seminate data, statistical information, and advice that may be helpful Duties. in improving the methods of administration and municipal develop- ment in the several municipalities of the Commonwealth; and shall maintain, for the benefit of the municipalities, a publicity service to install or assist in the installation and establishment of modern sys- tems of accounting in the various municipalities of the state, and in order to promote a comprehensive plan or series of plans for the probable future requirements of cities, boroughs, or townships of the Commonwealth, either separately or jointly, in respect to a system of traffic thoroughfares and other highways or main highways, trans- portation of every sort, suitably coordinated sites for public build- ings, parks, parkways, playgrounds, and other public uses, the preser- vation of natural and historic features, and any and all public im- provements tending to the advantage of municipalities or townships affected, tending to their advantage as a place of business and resi- dence, and to either make or secure or assist in making or securing the necessary surveys, plans, and information. SEC. 2. The Secretary of Internal Affairs is hereby authorized to employ a Chief of Bureau of Municipalities, who in his judgment shall be qualified to perform the duties herein described. He is also authorized to employ such engineering, accounting, clerical, steno- graphic, and other expert service, relating to the gathering of infor- mation, its distribution and publication and other duties incident to the purpose of the Bureau, or transfer to such duties in this Bureau as he may find advisable the work and services of other bureaus or of others employed in the department. The salaries of the employees Salaries, appointed under the provisions of this act shall be fixed by the Secre- tary of Internal Affairs, and shall be paid from the funds appropriated to the said Department of Internal Affairs. SEC. 3. It is hereby made the duty of every city, borough, town- ship, or county official, to furnish such information as may be re- quested by the Chief of the Bureau of Municipalities or his duly au- thorized deputy. * Sees. 4 and 5. Repeals and time when law goes into effect. * Summarized. Employees. Duty of municipali- ties. BIBLIOGRAPHY I. GENERAL PRINCIPLES A. SCOPE OF CITY PLANNING B. LEGAL BASIS II. PLANNING THE CITY AS A WHOLE III. PLANNING THE PUBLIC FEATURES A. ACQUIRING LAND B. PUBLIC UTILITIES C. STREETS TRAFFIC SETBACKS IV. PLANNING THE PRIVATE FEATURES A. GENERAL B. BUILDING REGULATIONS C. ZONING V. CITY PLANNING FINANCE A. ASSESSMENTS GENERAL B. ASSESSMENTS ON LAND VALUE C. ASSESSMENTS SPECIAL D. INCREMENT TAXATION VI. PLANNING FOR THE PROMOTION OF BEAUTY A. LEGAL MEANS AND ACCOMPLISHMENT B. REGULATING OUTDOOR ADVERTISING VII. PLANNING ADMINISTRATION Australia; Belgium; Canada; France; Germany (General; Met- ropolitan) ; Great Britain (General; Metropolitan); Greece; India; Italy; Scotland; Sweden; United States (General; Plan- ning Commissions; Cities; Metropolitan) 607 PART I GENERAL PRINCIPLES A. SCOPE OF CITY PLANNING ADAMS, THOMAS. Architects and Landscape Architects as Town Planners. Journal of American Institute of Architects, April, 1922, v. 10, pp. 101-103. Rural Planning and Development. Canada, Commission of Conserva- tion, 1917. 281 p. ALDRIDCE, HENRY R. The Case for Town Planning: a Practical Manual for the Use of Councillors, Officers, and Others Engaged in the Preparation of Town Planning Schemes. London, Published by the National Housing and Town Planning Council, 1915. 679 p. CADBURY, GEORGE, JR. Town Planning with Special Reference to the Birmingham Schemes. London, Longmans Green, 1915. 201 p. EBERSTADT, RUDOLF. Handbuch des Wohnungswesens, 4th Edition. Jena, Gustav Fischer, 1920. 735 p. (Bibliography at end of each section. Text of Prussian Housing Law of 1918.) ELY, RICHARD T. Property and Contract in Their Relations to the Distribution of Wealth. New York, Macmillan, 1914. 2 yols. Outlines of Land Economics. Privately printed by Edwards Brothers, Ann Arbor, Mich., 1922. GREAT BRITAIN. Ministry of Health. Report of the South Wales Regional Survey Committee. London, H. M. Stationery Office, 1921. 80 p. LEWIS, NELSON P. The Planning of the Modern City. New York, Wiley, 1916. 423 p. NOLEN, JOHN. City Planning; a Series of Papers by Seventeen Experts Presenting the Essential Elements of a City Plan, Edited by John Nolen. New York, Appleton, 1916. 447 p. National Municipal League Series. New Ideals in the Planning of Cities, Towns and Villages. New York, American City Bureau, 1919, 138 p. ROBINSON, CHARLES M. Gty Planning, with Special Reference to the Planning of Streets and Lots. New York, Putnams, 1916. 344 p. STUEBBEN, J. Der Stadtebau, 2d Edition. Leipzig, T. M. Gebhardt, 1907. (Con- tains extensive bibliographies, and the text of many foreign statutes, ordinances, etc.) UNWIN, RAYMOND. Town Planning in Practice ; an Introduction to the Art of Designing Cities. Revised Edition. London, T. F. Unwin, 1913 and 1919. 608 BIBLIOGRAPHY 609 WALPOLE, MASS., Town Planning Committee. (Charles S. Bird, Chair- man.) Town Planning for Small Communities. New York, Appleton, 1917. 492 p. National Municipal League Series. ZUEBLIN, CHARLES. American Municipal Progress, New and Revised Edition. New York, Macmillan, 1916. 522 p. Legal Basis Corpus Juris. New York, American Law Book Co., 1914 (v. i). 27 vols. (Subsequent volumes appearing at intervals. Supplement, 1921, i vol.) Cyclopedia of Law and Procedure. New York, American Law Book Co., 1901-1912. 40 vols. Supplements 1913, 1914-1918. 2 vols. Index. 1 vol. FREUND, ERNST. Police Power. Chicago, Callaghan & Co., 1904. 819 p. GOODNOW, FRANK J. Social Reform and the Constitution. New York, Macmillan, 1911. 365 P- GREAT BRITAIN. Laws. The Laws of England. London, Butterworth, 1907. 31 vols. Sup- plement, 1921. i vol. (Gives text of statutes, with annotations.) The Legislation of the Empire, 1898-1907. London, Butterworth, 1909. 4 vols. (Gives text of statutes, with annotations.) LEWIS, JOHN. Law of Eminent Domain in the United States, 3d Edition. Chicago, Callaghan and Co., 1909. 2 vols. McQuiLLiN, EUGENE. Municipal Corporations. Chicago, Callaghan & Co., 1911. 6 vols. Supplement 1921. 2 vols. MEREDITH, SIR WILLIAM R., editor. Municipal Manual. Toronto, Canada Law Book Co. ; Philadelphia, Cromarty Law Book Co., 1917. (Text of statutes relating to Canadian municipal corporations and public utilities. Author is- Chief Justice of Canada.) MFNRO, WILLIAM B. Principles and Methods of Municipal Administration. New York, Macmillan, 1916, 491 p. NICHOLS, PHILIP. Law of Eminent Domain. Albany, Matthew Bender and Co., 1917. 2 vols. THAYER, J. B. Cases on Constitutional Law. Cambridge, Mass., Charles W. Sever, 1894, 1895. 2 vols. in 4 pts. (Police Power, Ch. 5.) PART II PLANNING THE CITY AS A WHOLE ADAMS, THOMAS. The Need of Town Planning Legislation and Procedure for Control of Land as a Factor in House-building Development. Journal of American Institute of Architects, Feb.-March, 1918, v. 6, pp. 68-70; 135-137. 610 BIBLIOGRAPHY ALDRIDGE, H. R. Compulsory Town Planning; Paper Read Before the Town Planning Institute. Garden Cities and Town Planning, Feb., 1916, v. 6, pp. 25-32. BASSETT, EDWARD M. Constitutional Limitations on City Planning Powers. In Proceedings of 9th National Conference on City Planning, 1917, pp. 199-214, A Survey of the Legal Status of a Specific City in Relation to City Planning. In Proceedings of 5th National Conference on City Plan- ning, 1913, pp. 46-68. CONRAD, J. Handworterbuch der Staatswissenschaften, 3d Edition. Jena, Gustav Fischer, 1911. 8 vols. (See especially the titles: Wohnungsf rage ; Zusammenlegung; Baupolizei ; Stadterweiterungen. New edition is now being published in sections.) GARLICK, J. The Principles of Town Planning Legislation. In Proceedings of Second Australian Town Planning Conference and Exhibition, 1918, PP. 95-99- McBMN, HOWARD L. American City Progress and the Law. New York, Columbia Uni- versity Press, 1918. 269 p. The Law and the Practice of Municipal Home Rule. New York, Columbia University Press, 1916. 724 p. MASSACHUSETTS FEDERATION OF PLANNING BOARDS. Massachusetts City and Town Planning Law. 48 p. Bulletin No. 9, August, 1921. NATIONAL CONFERENCE ON CITY PLANNING. Proceedings, issued annually, I9io-date, by the Conference, except the first (1909), which is U. S. Congress, 6ist, 2d Session, Senate doc. 422. SHURTLEFF, FLAVEL, and FREDERICK LAW OLMSTED. Carrying Out the City Plan. New York, The Survey Associates, 1914. 349 p. (Russell Sage Foundation Publications.) (Appendix, giving laws and decisions, pp. 211-334.) UNION INTERNATIONAL DES VILLES (3 bis Rue de la Regence, Belgium). Premier Congres International, Brussels, 1913. 1004 p. (The Union is compiling information with regard to civic matters in all countries.) WRITTEN, ROBERT H. The Constitution and Powers of a City Planning Authority. In Pro- ceedings of the 7th National Conference on City Planning, 1915, pp. 135-143; Results of Questionnaire, pp. 274-299. WILLIAMS, FRANK BACKUS. Enforcing the City Plan. National Municipal Rnww, July, 1921, v. io, pp. 374-377- The Law of the Gty Plan. Supplement to National Municipal AVTiVtr, Oct., 1920, v. ii, pp. 663-690. (A second, revised edition is in press.) Some Aspects of City Planning Administration in Europe. In Pro- ceedings of 7th National Conference on City Planning, 1915, pp. 144- 154. BIBLIOGRAPHY 6n PART III PLANNING THE PUBLIC FEATURES Acquiring Land BAUMEISTER, R., J. CLASSEN and J. STUEBBEN. Die Umlegung Stadtischer Grundstiicke und die Zonenenteignung. Berlin, E. Toesche, 1897. 152 p. Verband deutsch Arch, und Ingen. Ver. Denkschriften, Heft 2. (Gives text of principal foreign statutes.) CHICAGO BUREAU OF PUBLIC EFFICIENCY Excess Condemnation ; Why the City of Chicago Should Have the Power, in Making Public Improvements, to Take Property in Excess of Actual Requirements. 1918. 58 p. CREPON, T. Code Annote de 1'Expropriation pour Cause d'Utilite Publique, 2d Edition. Paris, A. Chevalier-Marescq & Cie., 1899. 584; 230 p. CUSHMAN, R. E. Excess Condemnation. New York, Appleton, 1917. 323 p. National Municipal League Series. (Bibliography, pp. 311-314. Gives text of American statutes and constitutional provisions.) CRIPPS, C. A. A Treatise on the Principles of the Law of Compensation, 5th Edition. London, Stevens & Sons, 1905. 574 p. EHLGOTZ, . Ueber Grundstucksumlegungen. Zeitschrift der Stadtebau, 1917, Heft 4-5, P- 38. FRANCE. Assemblee Nationale. Senate. Rapport Fait au Nom de la Commission Chargee d'Examiner le Projet de Loi Portant Modification a la Loi du 3 Mai 1841 sur 1'Ex- propriation pour Cause d'Utilite Publique, by M. Jeanneney. Paris, 1917. 108 p. GREAT BRITAIN. Committee Dealing with the Law and Practice Relating to the Acquisition and Valuation of Land for Public Purposes. Reports 1-4. London, H. M. Stationery Office, 1918-19. [Cd. 8998, 9229.] [Cmd. 156, 424.] GREAT BRITAIN. Ministry of Health. Committee on Unhealthy Areas. Interim Report, London, H. M. Stationery Office, 1920. 10 p. Second and Final Report, 1921. 24 p. GREAT BRITAIN. Land Enquiry Committee. Report. In The Land, London, 1914, v. n, p. 289 ff. HALBWACHS, MAURICE. Les Expropriations et le Prix de Terrains a Paris (1860-1900). Paris, Ed. Comely & Cie., 1909. 416 p. ILLINOIS. Legislative Reference Bureau. Eminent Domain and Excess Condemnation. Illinois Constitutional Convention, Bulletin No. 7, 1920. LAYER, MAX. Principien des Enteignungsrechtes. Leipzig, Duncker & Humblot, 1902. 660 p. Stoats und volkerrechtliche Abhandlungen, Band 3. MASSACHUSETTS. Constitutional Convention, 1917-1918. Excess Condemnation. Bulletin No. 19. MASSACHUSETTS. Legislative Committee on Eminent Domain. Report, Dec. 29, 1903. Boston, State Printers, 1904. 101 p. Mass. General Court, 1904, House doc. No. 288. 612 BIBLIOGRAPHY Supplementary Report, Feb. 29, 1904. 16 p. Mass. General Court, 1904, House doc. No. 1096. MASSACHUSETTS. Commission on Uniform Methods of Taking Land for Public Purposes. Report Relative to Taking Land for Public Purposes. Boston, State Printers, 1915. 70 p. Mass. General Court, 1915, House doc. No. 1851. Supplementary Report, 1916. Mass. General Court, 1916, House doc. No. 1750. (Gives draft of proposed act.) MERCHANTS' ASSOCIATION OF NEW YORK. Cost of Condemnation Proceedings and Analysis of References, com- piled and published by the Merchants' Association of New York, Dec., 1903. 67 p. MUNRO, W. B. Land Taking for Public Improvements; Excess Condemnation. In his Bibliography of Municipal Improvement, Cambridge, Harvard University Press, 1915, pp. 136-139. NEW YORK CITY. Committee on Taxation. Excess Condemnation . . . with a Report Prepared by H. S. Swan for the National Municipal League. New York, 1915. 122 p. (Gives text of American statutes and constitutional provisions.) OLMSTED BROTHERS. Methods of Condemnation of Park Lands. Park and Cemetery, Dec., IQIS, PP- 300-302. (From a report on a proposed parkway system for Essex County, N. J. f 1915, pp. 17-20.) PANDECTES, FRANCHISES. Paris, Librairie du Conseil d'Etat et de la Societe de Legislation Comparee. 1905. 59 vols. Supplements. Paris, 1907-09. 4 vols. Article on Expropriation pour Cause d'Utilite Publique, v. 31, pp. 1-329; supplementary volume 2, pp. 676-692. ROBIN, RAYMOND. Manuel de 1'Expropriation pour Cause d'Utilite Publique. Paris, Ad- ministration du Journal des Notaires et des Avocats, 1917, 215 p. with Supplement, 1919. (Gives text of French statutes.) SEYDEL, F. Das Gesetz iiber die Enteignung von Grundeigentum yom n Juni 1874 mit Benutzung der Akten des Koniglichen Ministeriums der offent- lichen Arbeiten fur den praktischen Gebrauch. Berlin, C. Heymanns Verlag, 1911. 348 p. STUEBBEN, J. Die purchfiihrung von Stadterweiterungen mit besonderer Beruck- sichtigung der Eigentumsverhaltnisse. Berlin, Ernst, 1908. 26 p. Stddtebauliche Vortrage, Bd. I, Heft 6. WACHORN, THOMAS. The Law Relating to the Compulsory Taking of Land by Public Com- panies and Local Authorities, 2d Edition, Enlarged. London, Effing- ham Wilson, 1906. 129 p. H'ilson's Legal Handy Books. WARNER, JOHN DEWrrr. Report on Scope and Limits of Expropriation, "Incidental" vs. "Excess" Condemnation. Submitted by Calvin Tompkins, Commis- sioner of Docks, May, 1912. 30 p. New York City. Dept. of Docks and Ferries, No. 19. WILLIAMS, FRANK BACKUS. , A Review of Excess Condemnation in the United States. In his Akron and Its Wanning Law, 1919, pp. 12-16. See also Part I (Legal Basis). BIBLIOGRAPHY 613 PUBLIC UTILITIES AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE. Public Policies as to Municipal Utilities. Annals of the Academy, Jan., 1915, v. 57, PP- 1-357- DILLON, J. F. Law of Public Utilities. In his Commentaries on the Law of 'Munici- pal Corporations, 5th edition, 1911, pp. 2088-2308. KING, CLYDE L., editor. Regulation of Municipal Utilities. New York, Appleton, 1912. 404 p. National Municipal League Series. (Select bibliography, pp. 387-391.) STEVENS, DON LORENZO. The Bibliography of Municipal Utility Regulation and Municipal Ownership. 410 p. Cambridge, Harvard University Press, 1918. Harvard Business Studies, v. 4. WILCOX, DELOS F. Analysis of the Electric Railway Problem ; Report to the Federal Elec- tric Railways Commission with Summary and Recommendations, Sup- plemented by Special Studies of Local Transportation Issues in the State of New Jersey and the City of Denver, with Notes on Recent Developments in the Electric Railway Field. New York, Published by the author, 1921. 789 p. Municipal Franchises; a Description of the Terms and Conditions Upon Which Private Corporations Enjoy Special Privileges in the Streets of American Cities. New York, McGraw-Hill, 1910-1911. 2 vols. STREETS TRAFFIC SETBACKS BOSTWICK, ANDREW L. Municipal Control of Street Planning; The Con- trol of Sub-divisions and Outlying Districts by Municipal and State Authorities. Municipal Journal, New York, July 29, 1915, v. 39, pp. 145-147. BROWN, CHARLES C. Traffic Laws and Highway Maintenance and Construction. Municipal Journal, New York, April 20, 27, 1918, v. 44, pp. 325-326; 344-345. BROOKLINE, MASS. Planning Board. Building Lines. In Annual Report of the Board, 1915. Also in Land- scape Architecture, Oct., 1916, v. 7, pp. 22-26. EDWARDS, PERCY J. History of London Street Improvements, 1855-1897. London, P. S. King and Son, 1898. 313 p. London County Council. ENO, WILLIAM P. The Science of Highway Traffic Regulation, 1889-1920. New York, Brentano's, 1920. 99 p. LEWIS, NELSON P. Street Widening to Meet Traffic Demands. In Proceedings of 9th National Conference on City Planning, 1917, pp. 43~59- NATIONAL CONFERENCE ON CITY PLANNING. Enforcing an Official City Plan for Streets as a Police Power Regu- lation. Boston, The Conference, 1922. 5 p. Bulletin No. 2. PRICHARD, CHARLES B. Legal Aspects of Traffic Control. In Proceedings of I3th National Conference on City Planning, 1921, pp. 137-146. 6i 4 BIBLIOGRAPHY SHURTLEFF, FLAVEL. Building Lines. In Proceedings of the Fourth Annual City and Town Planning Conference of Massachusetts Planning Boards, 1916, pp. 21-29; with discussion. TUTTLE, ARTHUR S. The Enforcement of a Street Plan. In Proceedings of ijth National Conference on City Planning, 1921, pp. 70-81. PART IV PLANNING THE PRIVATE FEATURES General NATIONAL HOUSING ASSOCIATION. Housing Problems in America. Proceedings of the Association, issued annually, ign-Jate. PREMIER CONGRES INTERNATIONAL ET EXPOSITION COMPAREE DES VILLES, 1913. Proceedings. Bruxelles, Union Internationale des Villes, 1914. var. p. WILLIAMS, FRANK BACKUS. Public Control of Private Real Estate. In Nolen, John, ed., City Planning, 1916, pp. 48-87. (Contains bibliography.) Note : The Proceedings of the various National and International Housing Congresses, held in Europe at intervals for many years, should be consulted. BUILDING REGULATIONS EBERSTADT, RUDOLF. Handbuch des Wohnungswesens, 4th edition. Jena, Gustav Fischer, 1920. 735 P- (Bibliography at end of each section. Text of Prussian Housing Law of 1918.) GROTJAHN, A., and J. KAUP. Handworterbuch der Sozialen Hygiene. Leipzig, F. C. W. Vogel, 1912. 2 vols. (See especially article on Wohnungswesen und Stadte- bau.) HOLLIDAY, A. C. Restrictions Governing City Development : Building Heights for Monumental and Commercial Structures. Town Planning Review, July, 1921, v. 9, PP. 77-98. LEHR, J. Wohnungsfrage. In Conrad's Handworterbuch der Staotswissen- schaften. (Contains bibliography.) MASSACHUSETTS. Laws. Report Relative to the Construction, Alteration and Maintenance of Buildings, Feb., 1915. pp. 42-44: Heights of Buildings. Mass. General Court, 1915, House doc. No. 1750. MINNEAPOLIS Civic AND COMMERCE ASSOCIATION. Reports of Municipal Committee on Limitation of Height of Buildings. 31 P- New YORK CITY. Municipal Reference Library. A List of References on the Housing Problem. Compiled by Louis H. Bolander, Assistant Librarian, March 28, 1922. Typewritten MS. 43 P. BIBLIOGRAPHY 615 STUEBBEN, F. Hygiene des Stadtebaues. In WeyVsches Handbuch der Hygiene. Jena, 1896, second edition 1914. Bd. 4, Abt. 2. UNWIN, RAYMOND. Nothing Gained by Overcrowding ! How the Garden City Type of Development May Benefit Both Owner and Occupier. London, Garden Cities & Town Planning Association, 1912. 24 p. VEILLER, LAWRENCE. A Model Housing Law, Revised Edition. New York, Russell Sage Foundation, 1920. 430 p. See also Part VII (Great Britain) books on English Housing, Town Planning, etc., Acts. ZONING ACKERMAN, FREDERICK L. Preliminary to City Planning, Zoning. Journal of American Institute of Architects, Jan., 1920, v. 9, pp. 15-18. ADAMS, THOMAS. Efficient Industry and Wholesome Housing True Aims of Zoning. American City, March, 1921, v. 24, pp. 287, 289. ADICKES AND BAUMEISTER. Die unterschiedliche Behandlung der Bauordnungen fur das Innere, die Aussenbezirke und die Umgebung von Stadten. Deutsche Viertel- jahrsschrift fur offentliche Gesundheitspflege, Braunschweig, 1894, v. 26, p. 13. AMERICAN CITY BUREAU, compiler. The Remarkable Spread of Zoning in American Cities. Americans City, Dec., 1921, v. 25, pp. 456-458. (List of cities with ordinances enacted or in preparation.) AMERICAN Civic ASSOCIATION. Zoning, as an Element in City Planning, and for Protection of Property Values, Public Safety, and Public Health, by Lawson Purdy, Harland Bartholomew, Edward M. Bassett, Andrew Wright Crawford, Herbert S. Swan. Washington, June, 1920. 48 p. Series II, No. 15, June 30, 1920. BALL, CHARLES B. The Health Value of City Zoning. National Real Estate Journal, April 10, 1922, v. 23, pp. 20-25. BALTIMORE MUNICIPAL JOURNAL. Series of Articles by Jefferson C. Grinnalds, beginning Oct. 8, 1920, v. 8, No. 19, pp. 4-5. What is Zoning? Why Should We Have It? BARTHOLOMEW, HARLAND. Zoning in the Location of Public Parks. Park International, July, 1920, v. i, pp. 56-59. BASSETT, EDWARD M. The Board of Appeals in Zoning. New York, Zoning Committee of New York, Revised Edition, 1922. 25 p. (Contains tables of deci- sions, statutes and ordinances.) Interim Zoning, with Suggestions for Ordinances. American City, March, 1922, v. 26, p. 230. Zoning. Supplement to National Municipal Review, May, 1922, pp. 3 I 5~34 I - National Municipal League, Technical Pamphlet Series No. 5. Zoning vs. Private Restrictions. National Real Estate Journal, Jan. 2, 1922, v. 23, p. 26. 616 BIBLIOGRAPHY BAUMEISTER, R. Die Abstufung der Bauordnungen fiir den Kern, die Aussenbezirke und die Vororte. Zentralblatt der Bauverwaltung, 1892, p. 425. BETTMAN, ALFRED. Recent Court Decisions on Zoning. In Proceedings of 12th National Conference on City Planning, 1920, pp. 148-153. BOYD, JOHN TAYLOR, JR. The New York Zoning Resolution and its Influence upon Design. Architectural Record, Sept., 1920, v. 48, pp. 193-217. CHENEY, CHARLES H. Districting Progress and Procedure in California. In Proceedings of the 9th National Conference on City Planning. 1917, pp. 183-194. The New California State Zoning Act. American City, Oct., 1917, v. 17, P- 357- Procedure for Zoning or Districting of Cities. San Francisco, Cali- fornia Conference on City Planning, Sept., 1917. 15 p. Bulletin No. 2. Removing Social Barriers by Zoning. Suney, May 22, 1920, v. 44, pp. 275-278. Zoning in Practice. In Proceedings of nth National Conference on City Planning, 1919, pp. 162-185. Also in National Municipal Review, Jan., 1920, v. 9, pp. 31-43. (Gives the Pacific Coast point of view.) CHICAGO CITIZENS' ZONE PLAN CONFERENCE. Report of Proceedings, Dec. 16-17, 1919. 94 p. DAVIS, EARL H., compiler. Zoning. July, 1917. 38 p. St. Louis Public Library Monthly Bulletin, n. s., v. 15, No. 7. DrESTEL, K. Uebergangserscheinungen im Stadtebau und Bauordnungswesen. Ber- lin, C. Heymann's Verlag, 1915. 52 p. Bauordnung und Bebauungsplan. Berlin, C. Heymann's Verlag, 1917. DISTRICTING Proceedings of 4th Annual City and Town Planning Con- ference of Massachusetts Planning Boards. Massachusetts Home- stead Commission, Bulletin No. 6, June, 1917, pp. 3-21. EMBURY, AYMAR, II. New York's New Architecture. Architectural Forum, Oct., 1921, v. 35, PP. 119-124- FERRISS, HUGH. The Xew Architecture : Evolution of City Building under the Zoning Law. New York Times Book Review and Magazine, Mar. 19, 1922, pp. 8-9; 27. FLUGGE, K. Grossstadtwohnungen und Kleinhaussiedelungen. Jena, Gustav Fischer, 1916. 160 p. FORD, GEORGE B. Building Zones, a Handbook with Especial Reference to New York City. New York, Lawyers Mortgage Co., 1017. 36 p. Simplifying Zoning. Exemplified in the Completed Ordinances for Mansfield, Ohio, and East Orange, N. J. American City, April, 1921, v. 24, pp. 383-386. Zoning Is So Logical and Reasonable That It Must Come Sooner or Later It Is Inevitable. Paper and Discussion at I4th Annual Con- vention (if Xational Association of Real Estate Boards. National Real Instate Journal, Sept. 26, 1921, v. 22, pp. 41-45. GENZMKR, E., and KI'-MKH. II. Bebauungsplan und Bauordnung. Dresden, Verlag fiir Volks- whlfahrt, 1917. BIBLIOGRAPHY 617 HALDEMAN, B. ANTRIM. The Control of Municipal Development by the "Zone System" and Its Application in the United States. In Proceedings of 4th National Conference on City Planning, 1912, pp. 173-188. LEWIS, NELSON P. The Planning of the Modern City. New York, Wiley, 1916. (Restrictions, pp. 260-285.) McBAiN, HOWARD L. Law Making by Property Owners. Shall the Exercise of the Police Power Be Made to Depend on Property Owners? Political Science Quarterly, Dec., 1921, v. 36, pp. 617-641. MAYREDER, K. Stadtische Bauordnungen mit besonderer Beriicksichtigung der Wohnungsfrage. Vienna, F. Denticke, 1903. 36 p. NEW YORK (CiTY). Commission on Building Districts and Restrictions. Final Report, June 2, 1916. New York, Board of Estimate and Ap- portionment, Committee on the City Plan, 1916. 299 p. (Edward M. Bassett, Chairman of the Commission, Lawson Purdy, Vice-chairman, George B. Ford and R. H. Whitten, Consultants. Tentative, report was issued March 10, 1916.) NEW YORK (CiTY). Heights of Buildings Commission. Report of the Heights of Buildings Commission to the Committee on the Height, Size and Arrangement of Buildings of the Board of Estimate and Apportionment of the City of New York, Dec. 23, 1913. 295 p. (Contains discussion of American and foreign law and practice.) POND, IRVING K. Zoning and the Architecture of High Buildings. Architectural Forum, Oct., 1921, v. 35, pp. 131-135. PRATT, EDWARD E. Industrial Causes of Congestion of Population in New York City. New York, Columbia University, 1911. 259 p. Studies in History, Economics and Public Law, v. 43, No. I. PRUSSIA. Kaiserliches Statisches Amt. Wohnungsfiirsorge in deutschen Stadten. Berlin, C. Heymann's Verlag, 1910. 635 p. Beitrdge zur Arbeiterstatistik, No. n. PURDY, LAWSON. Districting and Zoning of Cities. In Proceedings of 9th National Conference on City Planning, 1917, pp. 170-182. SLOAN, FRANCIS P. The Next Problem in City Zoning. American City, May, 1919, v. 8, pp. 226-229. (Refers to already existing stores and factories in newly created residential zones.) STUEBBEN, F. New York's Bauordnung. (Zonenbauordnung) und Stadtebauplan. Zeitschrift des Stddtebaues, 1916; Heft 12; Deutsche Bauseitung, 1915, p. 449; 1917, p. 10. Ueber den Zusammenhang von Bebauungsplan und Bauordnung. Berlin, W. Ernst u. Sohn, 1909. SWAN, HERBERT S. The Effect of Zoning upon Living Conditions. In Proceedings of I3th National Conference on City Planning, 1921, pp. 31-42. Industrial Zoning in Practice. In Proceedings of loth National Con- ference on City Planning, 1918, pp. 47-55. Also in American City, July, 1918, v. 19, pp. 7-10. The Law of Zoning ; a Review of the Constitutionality of Zoning Regulations Which Control Buildings in Accordance with a General 618 BIBLIOGRAPHY Plan of Municipal Development. Supplement to National Municipal Review, Oct., 1921, v. 10, pp. 510-536. Making the New York Zoning Ordinance Better. Architectural Forum, Oct., 1921, v. 35, pp. 125-130. The Non-conforming Building in Zoning. American Architect, Nov. 13, 1918, v. 114, pp. 592-594- SWAN, HERBERT S., and GEORGE W. TUTTLE. Planning Sunlight Cities. American City, Sept, Oct., 1917, v. 17, pp. 213-217, 3U-3I7. VEILLER, LAWBKNCB. Protecting Residential Districts. In Proceedings of 6th National Conference on City Planning, 1914. pp. 92-111. Also published sepa- rately : Publication No, 26 of the National Housing Association, Sept., 1914. WHITTEN, ROBERT H. Zoning and Living Conditions. In Proceedings of ijth National Conference on City Planning, 1921, pp. 22-30. The Zoning of Apartment and Tenement Houses. An Important Legal Decision Which Will Help to Preserve Our American Cities as Cities of Homes. (East Cleveland decision.) American City. Aug., 1920, v. 23, pp. 140-14-'. The Zoning of Residence Sections. In Proceedings of wth National Conference on City Planning, 1918, pp. 34-39. WILLIAMS, FRANK BACKUS. Building Regulation by Districts, the Lesson of Berlin. New York, 1914. 9 p. National Housing Association. Publication No. .?.;. Districted Residential and Industrial Districts in German Cities. In Proceedings of 3d National Conference on Housing, 1913, pp. 54-62; 143-157 ; with discussion. Public Control of Private Real Estate. In City Planning, Ed. by John Nolen, 1916, pp. 48-87. The Street as the Basis of Districting. American City, Dec., 1913, v. 9, PP- 5i7-5i8. The Zoning or Districting System in Its Relation to Housing. Boston, Massachusetts Civic League, 1915. 8 p. Zoning For London. Housing Betterment, Jan., 1922, v. n, pp. 30-32. Reports on Zoning : Typical Reports containing illustrative material, proposed ordinances, etc., have been issued by : Akron, Ohio ; Atlanta, Ga. ; Cambridge, Mass.; Cleveland, Ohio; Detroit, Mich.; Milwaukee, Wis. ; Portland. Ore.; St. Louis, Mo.; San Francisco, Calif.; Washington, D. C, and other cities. PART V CITY PLANNING FINANCE ASSESSMENTS GENERAL ADAMS, THOMAS. Municipal and Real Estate Finance in Canada; The Need of Town Planning to Arrest Growing Financial Difficulties in Cities and Towns. Canada, Commission of Conservation, 1921. 15 p. Town Planning in Relation to I. and Taxation: Cities Should Have Agricultural /ones: Examples of Canadian Cities. National Munici- pal AY: irrt 1 , March, 1919, v. 8, pp. 109-113. BIBLIOGRAPHY 619 ATKINSON, RAYMOND. The Effects of Tax Limitation in Ohio Cities. National Municipal Review, Dec., 1920, v. 9, pp. 772-776. FlLLEBROWN, CHARLES B. The A B C of Taxation, with Boston Object Lessons, Private Property in Land, and Other Essays and Addresses. New York, Doubleday, Page, 1909. 229 p. MARSH, BENJAMIN C. Industry and City Planning. Town Development, Aug., 1915, v. 15, pp. 115-116. Town Planning in Relation to Land Taxation : Proposed Alberta Schemes. In Annual Report of Canada Commission of Conservation, 1919, v. 10, pp. 113-115. WILCOX, DELOS F. Taxation of Real Estate Values and Its Effect on Housing. In American Academy of Political and Social Science, Housing and Town Planning, 1914, pp. 34-40. ASSESSMENTS ON LAND VALUE BULLOCK, C. J. The Boom That Disappeared. A Study of the Practical Workings of the Single Tax Plan in Vancouver. Real Estate Magazine, 1914, v. 4, No. 7, PP. 73-75; 77-78; No. 10, pp. 73-75. CLARK, A. B. Taxation in the Western Provinces of Canada. In Proceedings of National Tax Association, 1914, pp. 434-447. COX-SINCLAIR, E. S., and THOMAS HYNES. Land Values. The Taxation of Land Values under the Finance (1909-10) Act, 1910. London, Charles Knight, 1910. 418 p. DAMASCHKE, W. F. Bodenreform. Jena, Gustav Fischer, 1918. 512 p. DIXON, F. J. The Progress of Land Value Taxation in Western Canada. In Proceedings of National Tax Association, 1914, pp. 405-415. ELY, RICHARD T. The Taxation of Land. In Proceedings of National Tax Association, 1921. Also separately printed. FELS, JOSEPH. Taxation of Land Values in American and Foreign Cities. American City, Nov., 1910, v. 3, pp. 227-229. FILLEBROWN, CHARLES B., and E. R. A. SELIGMAN. Taxation and Housing. In National Conference on Housing, Housing Problems in America, 1915, v. 4, pp. 92-108. HAIG, R. M. The Exemption of Improvements from Taxation in Canada and the United States. A Report Prepared for the Committee on Taxation of the City of New York, 1915. 291 p. Some Economic Effects of the Special Taxation of Land. In Pro- ceedings of National Tax Association, 1915, pp. 94-103. Some Probable Effects of the Exemption of Improvements from Taxation in the City of New York. A Report Prepared for the Committee on Taxation of the City of New York. New York, 1915. 254 P- HOWE, F. C. Municipal Taxation and Its Effect on Town Planning, City Building, and the Housing Question. In Proceedings of 2d National Conference on City Planning, 1910, pp. 87-95. 620 BIBLIOGRAPHY HUNTINGTON, CHARLES W. Enclaves of Single Tax, Being a Compendium of the Legal Documents Involved Together with a Historical Description. Harvard, Mass., Published by Fiske Warren, 1921. 150 p. LEUBUSCHER, FREDERIC. Halving the Tax upon Improvements. Real Estate Magazine, 1913, v. 3, No. 6, pp. 12-15. ROBINSON, ALLEN. Halving the Tax upon Improvements. Real Estate Magasine, 1913, v. 3. No. 5, pp. 14-17- SCHEFTEL, YETTA. The Taxation of Land Value, a Study of Certain Discriminating Taxes on Land. Boston, Houghton MifHin, 1916. 489 p. (Bibli- ography, pp. 461-483.) WADE, F. C. Experiments with the Single Tax in Western Canada. In Proceedings of National Tax Association, 1914, pp. 416-433. YOUNG, A. N. Single Tax Movement in the United States. Princeton University Press, 1916. 340 p. (Bibliography, pp. 325-328.) ASSESSMENTS SPECIAL Methods of Assessing for Street Improvements. American City, Nov., 1914, v. ii, pp. 371-375- NATIONAL MUNICIPAL LEAGUE. Committee on Sources of Revenue. Special Assessments : Assessments for Benefit as a Means of Financing Municipal Improvements. National Municipal Review, Feb., 1922, v. ii, pp. 43-58. (Contains bibliography on special assess- ments.) PAGE, WILLIAM HERBERT, and PAUL JONES. Taxation by Local and Special Assessments. Cincinnati, W. H. Anderson Co., 1909. 2 vols. ROSEWATER, VICTOR, Special Assessments. New York, Columbia College, 1893. 152 p. Studies in History, Economics and Public Law, v. 2, No. 3. SWAN, HERBERT S. The Assessment of Benefits and Damages in Street Proceedings. American City, Sept., 1916, v. 15, pp. 258-264. INCREMENT TAXATION BRUNHUGER, R. Taxation of the Unearned Increment in Germany. Quarterly Journal of Economics, v. 22, pp. 83-108. FALLON, VALERE. Les Plus- Values ct I'lmpot Paris, Arthur Rosseau, 1914. 515 p. (Bibliography, pp. 483-515.) GERLOFF, WILHELM. Die Wertzuwachssteuer in Literatur und Gesetzgebung. In Schmollers Jahrbuch fur Gtsetsgebung, Verwoltung und yolkswirtschaft, Miinchen, 1913, v. 37, pp. 409-413. JOHNSON, J. F. Increment Taxes and the Partial Exemption of Buildings. In Pro- ceedings of National Tax Association, 1913, pp. 106-137. Kt-MPMANN. KARL. Wertzuwachssteuer. Tubingen. H. Laupp, 1907. 124 p. Zcitschrift fur die gesamte Staatsuisscnschaft. Ergdncungsheft 34. BIBLIOGRAPHY 621 PERIN, RENE. Das Problem des unverdienten Wertzuwachses und dessen Besteuerung mit besonderer Riicksicht auf Oesterreich. Wien, Manzsche k. u. k. Hof-Verlag, 1912. 151 p. SWAN, HERBERT S. The Unearned Increment in Lackawanna. National Municipal Re- view, March, 1919, v. 8, pp. 113-118. PART VI PLANNING FOR THE PROMOTION OF BEAUTY Legal Means and Accomplishment Art Commissions, City and State. Report of a Committee Appointed at a Conference of Members of Art Commissions, in New York, Dec., 1913. 23 p. BONNIER, Louis. Les Reglements de Voirie. Paris, Charles Schmid, 1903. 95 p. BOYD, JOHN TAYLOR, JR. The New York Zoning Resolution and Its Influence upon Design. Architectural Record, Sept., 1920, v. 48, pp. 193-217. EMBURY, AYMER, II. New York's New Architecture. Architectural Forum, Oct., 1921, v. 35, PP- 119-124. EMERICH, HEINRICH. Der Schutz des Ortsbildes ; das Elsass-Lothringische Landesgesetz betreffend baupolizeiliche Vorschriften vom 7 November 1910 . . . , sowie das Ortstatut und die Verordnung zum Schutze des Ortsbildes von Strassburg vom 23 Nov. 1910. Strassburg, Trubner, 1911. 150 p. FERRISS, HUGH. The New Architecture : Evolution of City Building under the Zoning Law. New York Times Book Review and Magazine, Mar. 19, 1922, pp. 8-9 ; 27. HOLLIDAY, A. C. Restrictions Governing City Development; Building Heights for Monumental and Commercial Structures. Town Planning Review, July, 1921, v. 9, pp. 77-98. Laws Relating to Art Commissions, Printed for the Art Commission of the City of New York, May, 1914, 53 p. LORTSCH, CHARLES. La Beaute de Paris et la Loi. Paris, Librairie Bernard Tignol, 1911. 175 P. MAGNY, CHARLES. La Beaute de Paris. Paris, Librairie Bernard Tignol, 1911. 370 p. PARIS. Conseil Municipal. Proposition Relative aux Aspects de Paris et a J'Observation des Lois, Reglements et Servitudes Concernant le Style et la Hauteur des Maisons, Presentee par M. fimile Massard. Paris, Imprimerie Munici- pale, 1909. 44 p. Note Complementaire a 1'Appui de la Proposition Relative aux Aspects de Paris, au Style et a la Hauteur des Maisons, Presentee par M. fimile Massard. Paris, Imprimerie Municipale, 1909. 43 p. Recueil d'Actes Administratifs et de Conventions Relatifs aux Servi- tudes Speciales d'Architecture. Ville de Paris, 1905. 622 BIBLIOGRAPHY POND, IRVING K. Zoning and the Architecture of High Buildings. Architectural Forum, Oct., 1921, v. 35, pp. 131-135. (Saxony.) Allgemeines Baugesetz, edited by A. Rumpelt, 4th ed. Leipzig, Rpss- berg'sche Verlagsbuchhandlung, 1911. 426 p. Juristische Handbibli- othek No. 326. (With introduction and notes. The discussion of aesthetic regulations is especially full.) (Saxony.) Das Kgl. Sachs. Gesetz gegen die Verunstaltung von Stadt und Land, edited by P. Adolf. Leipzig, Rossberg'sche Verlagsbuchhand- lung, 1909. 189 p. (Gives text of many of foreign and most of German laws against disfigurement.) OUTDOOR ADVERTISING ADAMS, THOMAS. By-Laws Relating to Billboards and Signs. Conservation of Life (Canada), April, 1918, v. 4, pp. 41-42. AMERICAN Civic ASSOCIATION. Department of Nuisances. The Billboard Nuisance. Edited by C. R. Woodruff. Philadelphia, 1908. 48 p. Series 2, No. 2. Cnnc LEAGUE OF ST. Louis. Signs and Billboards Committee. Billboard Advertising in St. Louis; Report of the Committee, 1910. 40 p. CRAWFORD, ANDREW WRIGHT. Important Advances Toward Eradicating the Billboard Nuisance. Washington, American Civic Association, 1919. 32 p. Series II, No. 13. GREAT BRITAIN. Home Office. Return of the Laws in Force in France, Germany, Austria, Italy, Belgium, Holland, Switzerland and the United States: (i) For Regu- lating or Restricting the Exhibition of Posters, Bills and Other Public Advertisements; (2) For the Taxation of Such Advertisements. London, 1903. 40 p. House of Commons Paper No. 323. Accounts and Papers, 1903. Vol. 55. KANSAS UNIVERSITY. Municipal Reference Bureau. Regulation of Billboards by Kansas Cities. April I, 1920. Type- written MS. 12 p. McBAiN, H. L. American City Progress and the Law. New York, Columbia Univer- sity Press, 1918. 269 p. (Billboard regulations, pp. 76-91.) McFARLAND, J. HORACE. Illegal Signs in Pennsylvania. Washington, American Civic Asso- ciation, 1914. 8 p. Series II, No. 7; Billboard Bulletin No. 3. MASSACHUSETTS. Laws. Special Report Relative to the Regulation of Billboards and Other Advertising Devices . . . within Public View. Feb., 1920. 34 p. Mass. General Court, 1920, House doc. 1315. MASSACHUSETTS. Commission on Taxation of Signs. Report, Jan., 1915. 25 p. Mass. General Court, 1915, House doc. 1637. MASSACHUSETTS. Constitutional Convention, 1917-18. Regulation of Billboards. Boston, State Printer, 1919, pp. 375-400. Bulletin No. 31. BIBLIOGRAPHY 623 MILLARD, EVERETT L. What Chambers of Commerce and Realtors Can Do to Help Abate the Billboard Nuisance. American City, March, 1920, v. 22, pp. 276- 278. NATIONAL HIGHWAYS ASSOCIATION. The Billboard Nuisance in New York City. 1916. 8 p. Division of Municipal Art, Pamphlet No. I. NEW YORK CITY. Commissioner of Accounts. Report on an Investigation of Billboard Advertising in New York City, 1912. 39 p. NEW YORK CITY. Mayor's Billboard Advertising Commission. Report, 2d Printing, 1915. 151 p. (NEW YORK) MUNICIPAL ART SOCIETY OF NEW YORK. The Billboard Blight, What To Do About It. 22 p. Bulletin 22, March, 1922. OLMSTED, F. L. Report of the Committee on Checking Abuses of Public Advertising for 1902-03. American Park and Outdoor Art Association, Reports, v. 7, part 2, 1903, pp. 25-32. Outdoor Advertising Abroad. How Foreign Cities Regulate, Control, Restrict, License, Tax and Handle Billboards. Chautauquan, 1908, v. 51, PP- 73-8i- S. C. A. P. A. A Beautiful World. The Occasional Journal of the Society for Checking the Abuses of Public Advertising (Wimbledon, Eng.) 1909- 1913 (no issues since War). (Discussion and enactment of English billboard legislation. Contains material covering other countries.) SPRINGFIELD (MASS.). City Planning Commission. Report on Billboard Advertising in Springfield, 1915. 23 p. TERRY, T. H. Constitutionality of Statutes Forbidding Advertising Signs on Prop- erty. Yale Law Journal, 1914, v. 24, pp. i-n. TINKHAM, JULIAN R. Advertising is Non-essential Tax It. Upper Montclair, N. J. Printed by the author, 1918. 61 p. U. S. LIBRARY OF CONGRESS. List of References on Billboards. 1915. Typewritten MS. 8 p. WARMER, J. B. Advertising Run Mad. Municipal Affairs, New York, 1900, v. 4, pp. 267-293. (Contains billboard regulations of foreign cities.) PART VII PLANNING ADMINISTRATION Australia READE, CHARLES C. Planning and Development of Towns and Cities in South Australia; Report by the Government Town Planner . . . Upon Existing Con- ditions and Defects and the Need for Town Planning Legislation Relating Thereto in Conformity With The Provisions of the Town Planning and Development Bill, 1919. Adelaide, Govt. Printer, 1919. 48 p. South Australian Town Planning and Housing Bill, 1916; Report and 624 BIBLIOGRAPHY Synopsis Relating to the Principal Proposals Thereunder Together with the Full Text of the Proposed Enactment as Approved by the House of Assembly on Oct. 4, and Received by the Legislative Council on Oct. 5, 1916; Prepared by Mr. Charles C. Reade . . . June, 1916. Adelaide, Govt. Printer, 1917. 40 p. See other comments in Town Planning Review, Oct., 1916, v. 7, pp. 79-80. Belgium EBERSTADT, RUDOLF. Neue Studien iiber Stadtebau und Wohnungswesen. Jena, Gustav Fischer, 1914. 2 vols : I. Belgium ; II. Holland. MAERTENS, F. Legislation Plans d'Amenagement et Reglements sur les Batisses en Belgique. La Vie Urbaine, Sept., 1919, v. i, pp. 351-354. Canada ADAMS, THOMAS. The Beginnings of Town Planning in Canada. In Proceedings of 8th National Conference on City Planning, 1916, pp. 222-230. BURLAND, J. H. A Town Planning Act for Canada. In Proceedings of 6th National Conference on City Planning, 1914, pp. 133-179. (Contains draft of Act and discussion by Thomas Adams and others.) CANADA. Commission of Conservation. Report, 1915, v. 6, pp. 245-302. Appendix i (a) : Discussion on "A Town Planning Act for Canada" ; Appendix 2: Recent Town Planning Progress in Maritime Provinces. The First Canadian Town-planning Regulations. Conservation of Life, Aug., 1914, v. i, pp. 14-16. (Halifax, N. S., regulations.) The Need for a Town Planning and Development Act in Ontario. Conservation of Life, March, 1917, v. 3, pp. 40-45. France AGACHE, AUBURTIN ET REDONT. Comment Reconstruire Nos Cites Detruites, 2d Edition. Paris Li- brairie, A. Colin, 1916. 257 p. AUBURTIN, J. M., and HENRI BLANCHARD. La Cite de Demain dans les Regions Devastees. Paris, A. Colin, 1917. 317 P- DESPLAS, M. Rapport Fait au Nom de la Commission des Dommages de Guerre Chargee d'Examiner le Projet et les Propositions de Loi sur la Repa- ration des Dommages Causes par les Faits de la Guerre. Paris, Imprimerie de la Chambre des Deputes, 1916. 345 p. Frante. As- sembtt Nationale Chambre des Deputes, Onsieme Legislature, Session de 1916, No. 2345. FORD, GEORGE B. Recent Laws Affecting Reconstruction (in France). In his Out of the Ruins, 1919, pp. 144-154. L'Urbanisme en Pratique, Precis de I'Urbanisme dans Toute son Extension Pratique Compared en Amerique et en Europe. Paris, Ernest Leroux, 1920. 196 p. Collection "Urbanisme," Serie C. FRANCE. Laws. Laws of France, 1919. Town Planning and Reparation of Damages Caused by the Events of the War. New York, National Civic Federa- tion, 1919. 51 p. (Translation by Roscoe Pound, Dean of Harvard Law School.) BIBLIOGRAPHY 625 Le Texte de la Loi du Mars 1919 qui est, pour la France, 1'Equivalent de Town Planning Act Anglais de 1909. La Vie Urbaine, Sept., 1919, v. i, pp. 361-366. REYNALD, M. Rapport Fait au Nom de la Commission Chargee d'Examiner le Projet de Loi, Adopte par la Chambre des Deputes sur la Reparation des Dommages Causes par les Faits de la Guerre. 166 p. France. Assemblee Nationale. Senate. Session Ordinaire, 1917, No. 315. Germany General ADICKES, FRANZ (Mayor of Frankfort). "Stadterweiterungen." In Conrad's Handworterbuch der Staatswis- senschaften. (Contains bibliography.) (Baden.) Badische Landesbauordnung, Edited by Franz Joseph Roth. Karlsruhe, 1909. 619 p. (Contains many valuable notes.) BAUMEISTER, R. Gemeinwohl und Sonderniitzen in Stadtebauleben. Stadtebauliche Vortrage, 1918, Bd. 8, Heft 4. BORNHAK, CONRAD. Verwaltungsrechtliches im Stadtebau. Berlin, Ernst, 1908. 17 p. Stadtebauliche Vortrage, Bd. i, Heft 3. EBERSTADT, RUDOLF. Handbuch des Wohnungswesens, 4th Ed. Jena, Gustav Fischer, IQ2(X 735 P- (Bibliography at end of each section.) KISSAN, B. W. Report of Town Planning Enactments in Germany. Bombay, Govt. Press, 1913. 31 p. Kommunales Jahrbuch. Jena, Gustav Fischer, 1908-1913/14; 1919 (Kriegs- band). (An annual, recording current municipal events. See espe- cially the subdivisions "Stadtebau und Wohnungswesen" (City Plan- ning and Housing).) (Prussia.) ALEXANDER-KATZ, PAUL. Ueber preussisches Fluchtlinienrecht. Berlin, Ernst, 1908. 31 p. Stadtebauliche Vortrage, Bd. i, Heft 7. (Prussia.) BALTZ, DR. CONSTANZ. Preussisches Baupolizeirecht, 4th edition. Berlin, Carl Heymann's Verlag, 1910. 677 p. (Prussia.) JAMES, HERMAN GERLACH. Principles of Prussian Administration. New York, Macmillan, 1913. 309 P. (Prussia.) Wohnungsgesetz, edited by B. Schmittman. Berlin, T. Gutten- tag, 1918. 274 p. (Gives the text of Building Line Law of 1875 and Housing Law of 1918, with notes.) (Prussia.) SARAN, WALTER, editor. Baufluchtliniengesetz. Gesetz betreffend die Anlegung und Veran- derung von Strassen und Platzen in Stadten und landlichen Ortschaf- ten vom 2 Juli, 1875. Berlin, C. Heymann's Verlag, 1911. 452 p. (Wiirttemberg.) Bauordnung, edited by W. Haffner. Tubingen, A. u. S. Weil, 2d Edition. 1912. 3 vols. (Vol. i, text with notes; Vols. 2 and 3, related statutes, ordinances, etc.) Germany Metropolitan Planning BRUHL, LUDWIG, and others. Zweckverbandgesetz fur Gross Berlin, nebst Abdruck des allgemeinen Zweckverbandgesetzes by Dr. Ludwig Briihl, Dr. Kurt Gordon, Dr. Walter Ledermann. Berlin, T. Guttentag, 1912. (The special statute 626 BIBLIOGRAPHY for the creation of a metropolitan district of Berlin and its suburbs ; and the general statute for the creation of such districts in Prussia. The Berlin statute has now been superseded and repealed by statute of 1920 (Gesets Sammlung, No. 19, p. 123), incorporating Berlin and her suburbs as one city. SCHMIDT, R. (Beigeordneter or Vice-Mayor of Essen). Denkschrift betrcffend Grundsatze zur Aufstellung eines General- Siedlungsplanes fur den Regierungsbezirk Diisseldorf (rechtsrhein- isch). Doctor's dissertation, privately printed about 1912. 104 p. Great Britain General ABERCROMBIE, PATRICK. The New Town Planning Regulations. Town Planning Review, July, 1921, v. 9, pp. 111-119. (Discussion of the Town Planning Regulations, 1921, issued by Ministry of Health for conduct under the 1919 Act.) ALLAN, CHARLES E., and FRANCIS J. The Housing of the Working Classes Act, 1890-1909, and the Hous- ing Acts 1914 Annotated and Explained Together with Rules, Regu- lations, Forms and Instructions of the Local Govt. Board, 4th Edition. London, Butterworth & Co., Shaw & Sons, 1916. 408 p. CADBURY, GEORGE, JR. Town Planning with Special Reference to the Birmingham Schemes. London, Longmans Green, 1915. (Text of Schemes, pp. 155-198.) CLARKE, J. J. The Housing Problem; Its History, Growth, Legislation and Pro- cedure. London, Pitman, 1920. 544 p. (Gives text of Housing, Town Planning, etc., Act, 1919, and Acquisition of Land Assessment of Compensation Act, 1919. Table of statutes, pp. 523-524. Bibli- ography, pp. 525-529-) Compulsory Acquisition of Land in England and Wales ; Recommenda- tions of the Reconstruction Committee. Municipal Journal, London, March 15, 1918, v. 27, pp. 289-290. DOWDALL, H. C. Local Development Law. London, T. F. Unwin, 1919. 230 p. Liver- pool Corporation Acts, pp. 205-230. A Garden Cities General Powers Bill. Garden Cities and Town Planning, Dec., 1921, v. ii, p. 269. GLEN. RANDOLPH A., and ARTHUR D. DEAN. The Law and Practice of Town Planning. Being Part II of the Housing, Town Planning, etc., Act, 1909; with Introduction, Notes to the Act. Departmental Orders, Memoranda and Circulars, Forms and Precedents, and Model Clauses for Town Planning Schemes. London, Butterworth, 1913. 283 p. GREAT BRITAIN. Laws. Housing, Town Planning, etc., Act, 1919. London, H. M. Stationery Office, 1919. 44 p. (Title: An Act to Amend the Enactments Relat- ing to the Housing of the Working Classes, Town Planning, and the Acquisition of Small Dwellings.) JEFFREYS, W. R. Some Administrative Problems. Town Planning Institute, Papers and Discussions, 1917-1918, v. 4, pp. 97-99. The New Regulations and the Future of Town PI nning; Summary of Town Planning Regulations, 1921. Housihg, April, 1921, v. 2, pp. 254; pp. 260-262, (Results of passing of Housing, Town 1'lanning, etc. Act, 1919.) BIBLIOGRAPHY 627 TOWN PLANNING CONFERENCE, London, 1910. Transactions. London, Royal Institute of British Architects, 1911. 812 p. (Section 7: Legislative Conditions and Legal Studies, pp. 661-701.) WOOD, SIR KINGSLEY. The Law and Practice with Regard to Housing in England and Wales. London, Henry Frowde, 1921. 769 p. (Gives text of statutes, with notes, forms, etc.) Great Britain Metropolitan Planning CHURTON, ANNETTE. The Housing and Town Planning Act, 1909, as It Affects Rural Districts. London, P. S. King & Son, n. d. (c. 1912). 12 p. Our Land Reprints, 4. Draft Bill for the Creation of One Town Planning Traffic and Housing Authority for London and the Home Counties. Discussion, opened by W. Rees Jeffreys. Town Planning Institute, Papers and Discus- sions, 1918-19, v. 5, pp. 39-78. GREAT BRITAIN. Local Government Board. Arterial Roads in Greater London. Report of Sectional Conferences Held at the Offices of the Local Government Board. London, H. M. Stationery Office. First Conference Proceedings published May, 1914. GREAT BRITAIN. Select Committee on Transport (Metropolitan Area). Report . . . Together with the Proceedings of the Committee, Minutes of Evidence, and Appendices. London, H. M. Stationery Office, 1919. 446 p. The Manchester and District Joint Town Planning Advisory Committee. Garden Cities and Town Planning, April, 1921, v. II, p. 103. (Pur- pose and functions of this committee.) See also Publications of the London County Council. Greece MAWSON, JOHN W. The Salonika Town Planning Act. Town Planning Review, Dec., 1921, v. 9, pp. 147-154. India CALCUTTA IMPROVEMENT TRUST. Report ... on the Condition, Improvement and Town Planning of the City of Calcutta and Contiguous Areas, by E. P. Richards. Hert- fordshire, England, Jennings & Bewlen, Printers, 1914. (Ch. XX Town Planning Legislation : Including Continental and Other Town Planning Acts, with Special Translations of Italian and German Acts.) DAVIDGE, W. R. The Madras Town Planning Act. Garden Cities and Town Planning, July, 1921, v. n, pp. 160-161. (Discussion of the 1920 Madras Act.) Italy CATTANEO, MARIO. La Legislation Italiana in Materia di Piani Regolatori Edilizii. Also trans. : Italian Legislation Respecting the Planning of Building Areas. In Transactions of Town Planning Conference, London, 1910, pp. 716-729. SANJUST DI TEULADA, EDMONDO. Piano Regolatore della Citta di Roma, 1908; Relazione Presentata al 628 BIBLIOGRAPHY Consiglio Comunale di Roma dall'Autore del Progetto. Roma, Sta- bilimento Danesi, 1908. 57 p. VENICE. Commissione Ministerial e Municipale Intorno al Piano di Risanamento ed al Piano Regolatore. Relazione della Commissione. Venice, Ferd. Onganie, 1891. 41 p. Scotland COOPER, M., and W. E. WHYTE. Law of Housing and Town Planning in Scotland, with an Appendix of Statutes, Orders, Circulars and Memoranda. Edinburgh, Wm. Hodge & Co., Ltd., 1920. Sweden The Housing Question in Sweden. Report of Commissioners to Inter- allied Housing and Town Planning Conference, London, 1920. Stock- holm, Norstedt & Soner, 1920, 64 p. LlLIENBERG, DR. Town Planning and Legislation in Sweden During the Last Fifty Years. In Proceedings of Town Planning Conference, London, 1910, pp. 702-715; with discussion. United States General See Part II, "The City as a Whole." United States Planning Commissions AMERICAN INSTITUTE OF ARCHITECTS. Cleveland Chapter. Report of Special Committee of the Cleveland Chapter to Recommend Legislation for the Establishment of a City Plan Commission. Journal of American Institute of Architects, May, 1914, v. 2, pp. 254- 257. BAKER, M. N. City Planning ; Model City Charter. In Woodruff, C. R., Ed., A New Municipal Program, 1919, pp. 218-227; 360-362. (Special reference to city planning commissions.) FORD, FREDERICK L. The Commission on the City Plan at Hartford, Conn. In Proceedings of sd National Conference on City Planning, 1910, pp. 172-177. Plan Commission Legislation. City Plan, Jan., 1916, v. i, pp. 9-13. MASSACHUSETTS FEDERATION OF PLANNING BOARDS. Bulletin No. i, May, 1916. 4 p. Pt. I : The Functions of Massachusetts Planning Boards. II : The official plan. WHITTEN, ROBERT H. The Constitution and Powers of a City Planning Authority. In Pro- ceedings of 7\h Xational Conference on City Planning, 1915, pp. 135- 143- WILLIAMS, FRANK BACKUS. The Law of the City Plan. Supplement to National Municipal Re- view, Oct., 1920, v. ii, pp. 663-690. A second, revised edition is in press. United States Cities 'Akron, Ohio. NOLEN, JOHN. City Plan for Akron, Prepared for Chamber of Commerce. Cam- bridge, Mass., University Press, 1919. 91 p. (Contains lcal sum- BIBLIOGRAPHY 629 mary published in full in pamphlet by Frank Backus Williams en- titled "Akron and Its Planning Law," listed below. WILLIAMS, FRANK BACKUS. Akron and Its Planning Law. Akron Chamber of Commerce, 1919. 40 p. Bridgeport, Conn, NOLEN, JOHN. Better City Planning for Bridgeport; Some Fundamental Proposals to the City Plan Commission . . . with a Report on Legal Methods of Carrying Out the Changes Proposed in the City Plan for Bridge- port, by Frank Backus Williams. Bridgeport, Conn., Brewer-Colgan Co., printers, 1916. 159 p. Chicago. FISHER, WALTER L. Legal Aspects of Plan of Chicago. In Burnham and Bennett, Plan of Chicago, published by Commercial Club, 1909, pp. 125-156. East Orange, N. J. Legal Situation. In City Plan for East Orange, New Jersey, 1922, pp. 77-79- Hamilton, Ohio. BETTMAN, ALFRED. Legal Powers Affecting the City Plan for Hamilton. In Bartholomew, Harland, City Plan for Hamilton, Ohio, 1920, pp. 60-64; 66- Minneapolis. ROCKWOOD, C. J. The Legal Problems. In Bennett, E. H., The Plan of Minneapolis, 1917. PP- 211-221. New York City. COMMITTEE ON CITY PLAN. Development and Present Status of City Planning in New York City. Report Together with Papers Presented at Meeting of Advisory Commission on City Plan, Dec. 17, 1914. 76 p. BASSETT, EDWARD M. A Survey of the Legal Status of a Specific City in Relation to City Planning. In Proceedings of 5th National Conference on City Plan- ning, 1913, pp. 46-68. See also Part IV, Zoning, and Part VI. United States Metropolitan Planning COHEN, JULIUS H. Developing Port Facilities by Interstate Compact and Agencies; Being Reprint of Paper Read Before Section of Public Utility Law of American Bar Association, August 30, 1921. 15 p. The New York Harbor Problem and Its Legal Aspects. Cornell Law Quarterly, May, 1920, pp. 373-408. Also reprinted. (Los Angeles.) REGIONAL PLANNING CONFERENCE. Proceedings of First Conference, 1922. 24 p. MASSACHUSETTS. Joint Board on Metropolitan Improvements. Final Report. Boston, State Printers, 1911. 145 p. (Mass. General Court, 1911, House doc. 1550.) (Popularly known as "Big Four" Report: See Landscape Architecture, April, 1912, v. 2, p. 114. MASSACHUSETTS. Metropolitan Improvements Commission. Report, 1909. Boston, State Printers, 1909. 318 p. MASSACHUSETTS. Metropolitan Plan Commission. Report, 1912. Boston, State Printers, 1912. 61 p. Mass. General Court, 1912, House doc. 1615. (New York) PORT OF NEW YORK AUTHORITY. Report with Plan for the Comprehensive Development of the Port of New York, Dec, 21, 1921. Albany, State Printers, 1921. 56 p. 6jo BIBLIOGRAPHY NEW YORK, NEW JERSEY PORT AND HARBOR DEVELOPMENT COMMISSION. Joint Report with Comprehensive Plan and Recommendations. Albany, J. B. Lyons Co., 1920. 495 p. WOOBSTON, HOWARD B. Municipal Zones; a Study of the Legal Powers of Cities Beyond Their Incorporated Limits. National Municipal Revizw, July, 1914, v. 3, PP- 465-473. ADDENDUM UNWIN, RAYMOND. Zoning Proposals. London, Town Planning Institute, 1922. pp. 115- 133 TABLES OF STATUTES I. PLANNING THE CITY AS A WHOLE A. APPROVAL OF PLATS A PREREQUISITE TO RECORD B. CITY PLAN II. PLANNING THE PUBLIC FEATURES A. EXCESS CONDEMNATION B. SET BACKS III. PLANNING THE PRIVATE FEATURES A. ZONING IV. PLANNING FOR THE PROMOTION OF BEAUTY A. OUTDOOR ADVERTISING a. Taxation or Regulation b. Prevention of Disfigurements V. PLANNING ADMINISTRATION A. PLAN COMMISSIONS B. ART COMMISSIONS C. STATE PLANNING INTRODUCTORY NOTE In the following tables will be found references to the principal statutes in the various political subdivisions of this country, with relation to a few of the main divisions of city planning law. Except as otherwise noted, the references are to the session laws in these jurisdictions and the statutes apply to a number of local governmental units and not exclusively to one such unit. When the text of the statute is given in this work, the reference to the page where it will be found is given in bold-face type. In a few cases in which amendatory statutes have appeared after the text of the book was in print, the substance of the amendment has been stated here in italics. I. PLANNING THE CITY AS A WHOLE A. APPROVAL OF PLATS A PREREQUISITE TO RECORD Note: Except as otherwise specified, the statute applies only to land witliin the city. Where it applies to land outside, and within a certain distance of the exterior limit of the city, that distance is given. In a few cases the statute makes it unlawful to sell the land unless its requirements are fulfilled. These statutes are starred. ARIZONA. 1921, ch. 27. CALIFORNIA. 1915, ch. 756, p. 1512; now General Laws, Act 2065, sec. 4. 631 632 TABLES OF STATUTES CONNECTICUT. Hartford. 15 Special Laws, p. 66 1 (1909, no. 74). GEORGIA. Fulton County and City of Atlanta. * 1921, p. 216 (approved August 10), and an identical act, * 1921, p. 219 (approved August 15), (6 miles outside Atlanta). ILLINOIS. 1921, p. 260; being Smith's Revised Statutes, 1921, ch. 24, sec. 72 (i% miles) ; Counties, 1921, p. 385; being ditto, ch. 34, sec. 25. INDIANA. 1921, p. 561 (5 miles) ; being Burns, 1921, Suppt., sec. 8657!. KANSAS. 1921, chs. 99, 139. LOUISIANA. Constitution and Statutes, 1920, II, 1269, being Act 160 of 1918, p. 271 (sec. 125), (3 miles). MASSACHUSETTS. General Laws, 1921, ch. 41, sees. 73-8i. MINNESOTA. 1919, ch. 292, p. 300. MISSOURI. * 1921, p. 509 (approved March 30). NEBRASKA. 1917, ch. 87 (3 miles). NEW JERSEY. P. L, 1912, p. 436, amended 1913, p. 119, now Comp. Stat. 1st Suppt. (1911-15), p. 413. sees. 25-27. NEW YORK. 1913, ch. 699, adding art. I2-A to the General Municipal Law (p. 584) ; New York City, 1916, ch. 513, amending charter, sec. 1540; Rochester, 1921, ch. 524; Syracuse, 1913, ch. 370 (3 miles). OHIO. General Code, 1910, sec. 4346 (3 miles). OREGON. 1919, ch. 311. PENNSYLVANIA. 1911, June 10; P. L. 872; being Pa. St. 1920 (Penn. Statutes complete to 1920, West Publishing Co.), sees. 3723-3727; amended 1921, May 17; P. L. 841. 1913, July 16; P. L. 752, sec. 3, being Pa. Sta. 1920, sec. 4381 (3 miles). VIRGINIA. 1918, ch. 419 (15 miles). WISCONSIN. 1009, ch. 162, amended 1917, ch. 404; now Statutes, 1921, sec. 62, 23 subd. (2) (1% miles). B. CITY PLAN Laws for the appointment of Planning Commissions (for which see Table V A) usually authorize the preparation and in some cases the adoption of a plan, as do also the following statutes. CONNECTICUT. Revised Statutes, 1918, sees. 388, 390; 1921, ch. 30. MARYLAND. Baltimore. See "Code of Public Local Laws of Maryland," sees. 84-86, art. 4, title, "City of Baltimore," sub-title, "Charter." MICHIGAN. 1921, no. 348, amended 1921, 2d Extra Session, no. 5. NEW YORK. New York City, Charter (4th ed. 1918, Ash), ch. X, title 4 (sees. 438-449) ; Buffalo, Charter, sec. 365, added by Laws, 1922, ch. 411. PENNSYLVANIA. 1891, May 16; P. L. 75; sec. 12 amended 1913, July 22; P. L. 902 to be found in Pa. St. 1920, sec. 19476; sec. 9 amended 1921, May 17; P. L. 844 (p. 587); repealed with relation to boroughs by sec. i of art. i of ch. XIII of Act of 1915, May 14; P. L. 312. Town- ships, first-class, see Pa. St. 1920, sec. 7072. Boroughs, ib. sec. 1861- 1866. State liihms TABLES OF STATUTES 637 and the appointment of planning commissions are authorized, and in many cases have occurred, which are not mentioned in this table. Commissions merely with advisory powers usually may be and often have been ap- pointed without express statutory authority. In some statutes the Commission is given more or less express authority with regard to zoning. These statutes are marked with a dagger (t). In some zoning statutes such authority is given city plan- ning commissions. These statutes will be found in the table of Zoning Statutes (Table III A), marked with a dagger. CALIFORNIA, t 1915, ch. 428, p. 708, now General Laws, Act 2389;'. The statute applies only to fifth and sixth class cities. Many of the cities of classes I to IV have charter provisions authorizing the appointment of City Planning Commissions ; and they all have the power to adopt home rule charters which shall include such a power. See also 1915, p. 1514 (Capital City Planning Commission), now General Laws, Act 3805 (p. 603). CONNECTICUT. Many cities and towns have provisions in their charters or are empowered by special statutes to appoint commissions ; as, for in- stance, Hartford, 15 Special Laws, p. 43 (1907, no. 61), amended 15 Special Laws, p. 634 (1909, no. 34), sec. 6, and p. 661 (no. 74), where the first permanent official commission in this country was created; also New Haven, 16 Special Laws, p. 897 (1913, no. 243) ; New Lon- don, 16 ib., p. 1035 (1913, no. 351). Especially interesting are Windsor, 17 Special Laws, p. 827 (1917, no. 133), and Bloomfield, 17 Special Laws, p. 831 (1917, no. 134), with relation to which see p. 36, ff., of this work. Any town, city or borough in this state is now em- powered to create such a commission. 1921, ch. 30. See also Revised Statutes, 1918, sees. 391-396. ILLINOIS, t 1921, p. 260, being Smith's Revised Statutes, ch. 24, sees. 71-73- INDIANA. *figBl, p. 561, being Burns, 1921 Suppt., sees. 86s7e-8657/. KANSAS. First Class Cities over 200,000. 1921, ch. 99. KENTUCKY. 1922. MASSACHUSETTS. General Laws, 1921, ch. 41, sees. 70-72, 73-81 ; ch. 45, sec. 2. MICHIGAN. 1921, no. 348, amended 1921, 2d extra session, no. s.f Detroit *t Charter, ch. X (1919). MINNESOTA. * t Certain First Class Cities. 1919, ch. 292, p. 300 (p. 576). Under art. IV, sec. 36 of the Constitution, cities and villages are also given the right to frame and amend their own charters, and therefore to adopt plans and appoint planning commissions. NEBRASKA, t 1915, ch. 213; amended 1919, ch. 185. NEW JERSEY. First Class Cities. P. L. 1911, p. 103, ch. 71. * P. L. 1913, p. 112, ch. 72. Second Class Cities. * P. L. 1913, p. 281, ch. 170. Third and Fourth Class Cities, Boroughs, etc. * P. L. 1915, p. 350, ch. 188, amended P. L. 1916, p. 377, ch. 175; P. L. 1920, p. 414, ch. 216 (p. 578); P. L. 1921, p. 695, ch. 218. Counties. P. L. 1918, p. 567, ch. 185, art. XVI (p. 603). Port Authorities. P. L. 1921, pp. 412 (p. 597), 423, chs. 151, 152; P. L. 1922, p. 25, ch. 9 (approved Feb. 25). The plan was approved by the U. S. Congress, Aug. 23, 1921. See also P. L. 1922, p. 191, ch. 104. NEW YORK. 1913, ch. 699, being art. I2-A of the General Municipal Law, amended 1920, ch. 377; 1921, ch. 464 (p. 581). Syracuse, 1920, ch. 447; amended by 1922, ch. 544. Rochester, 1917, ch. 505. Westchester County, 1915, ch. 109; Towns in Westchester County, 1922, ch. 322, adding subd. 18 to sec. 1420, Town Law. Port Authority, 1921, ch. 638 TABLES OF STATUTES 154 (p. 597), 203; 1922, ch. 43. The plan was approved by the U. S. Congress, Aug. 23, 1921. OHIO. * Laws, 106 v. 455 (1915), being Code * sees. 4366, 1-6; amended t 1919, 108 v. 1175, adding to Code, sees. 4366-7 to 4366-12. Cleve- land, * Charter, sec. 77. Municipalities are also, by home rule pro- visions, authorized to frame their own charters, and thus obtain power to adopt maps, appoint planning commissions, etc. OREGON. Portland, * 1919, ch. 311, now * Laws 1920, sees. 3862-3872. PENNSYLVANIA. First Class Cities. 1919, June 25; P. L. 581, sec. 10, being Pa. St. 1920, sec. 2985. Second Class Cities, 1911, June 10; P. L. 872, being Pa. St. 1920, sees. 3723-3727, amended 1921, May 17; P. L. 841. Third Class Cities, 1913, July 16; P. L. 752, being Pa. St. 1920, sees. 4379-4384 (p. 589). Metropolitan District, 1913, May 23; P. L. 339 (p. 594) (repealed in 1915, abolishing the Commission). SOUTH CAROLINA. Spartansburg. f 1921, no. 417. VERMONT. 1921, no. 107. WISCONSIN. * 1909, ch. 162, amended 1917, ch. 404, now Statutes, 1921, sec. 62.23, subd. (i)-(3). B. ART COMMISSIONS Except as otherwise noted, the commissions created by the laws given below are municipal commissions. To this list should be added the laws creating commissions with both planning and art regulation powers, for which see Table V A ante. 1 ALABAMA. State and Local. General Acts, 1919, p. 880 (no. 636). ARKANSAS. State, Digest, 1921, ch. 21 (sec. 839). CONNECTICUT. State, General Statutes, 1918, ch. 114, sees. 2186-2192. New Haven, 14 Special Laws, p. 728 (1905, no. 294). DISTRICT OF COLUMBIA. See United States. ILLINOIS. -State, 1909, p. 96; now Smith's Revised Statutes, 1921, ch. 127, sec. 6, 50. Municipal, 1899, p. 89; amended 1915, p. 260; now Smith's Revised Statutes, 1921, ch. 24, sec. 622-629. Chicago, Code (Callaghan and Co., 1911), sees. 121-122. MASSACHUSETTS. State, General Laws, 1921, ch. 6, sees. 19-20. Cities and towns, ib., ch. 41, sees. 82-84. Boston, 1898, ch. 410. MINNESOTA. General Statutes, 1913, sec. 1611. NEW YORK. Cities of First and Second Class, 1900, ch. 327, sees. 120, 122, being General City Law, former Art. 8, renumbered (1911, ch. 718) art. XI A (sees. 165-167). New York City, Charter, sees. 633-639 (p. 584). Mount Vernon, 1909, ch. 552. OHIO. General Code, 1910, sees. 4343-4345- PENNSYLVANIA. State and Local, 1919, May i; P. L. 103, being Pa. St. 1920, West Publ. Co., sees. 17571-17578. First Class Cities, 1919. June 25; P. L. 581, art. II, sec. n, being Pa. St 1920. sees. 2986-2991. Second Class Cities, ign, May 12; P. L. 291, being Pa. St. 1920, sees. 3720-3722. UNITED STATES. D. C. and National. Act of May 17, 1900, 36 Stat. L. 371, ch. 243. VIRGINIA. State, Code, 1919, ch. 31 (sec. 581-585). WISCONSIN. Cities of First Class (Milwaukee), 1911, ch. 318, amended by 1915, ch. 217. 1 The text of a number of art commission laws and statutes will be found in L*wt Relating to Art Commistioiu, printed for the Art Commission of the City of New York, May, 1914. TABLES OF STATUTES 639 C. STATE PLANNING A state planning department has been established in Pennsylvania, under 1919, Apr. 4; P. L. 45 (p. 6O4). The Immigration and Housing Commission of California (1917, ch. 740, p. 1514, now General Laws, Act 1589, sec. 15-17) and the Department of Public Welfare of Massachusetts (General Laws, 1921, ch. 121, sees. 23, 26, 27, formerly the Homestead Commission) collect and disseminate planning information. In Massa- chusetts there is also a Federation of Planning Boards. For an account of the planning activities of the National Government, see p. 542, note. INDEX OF CASES Albany Heights Realty Co. v. Vogt, 182 App. Div. 736; 169 N. Y. Supp. 1049 (1918), 286 Albany St., Matter of, 11 Wendell (N. Y.) 149 (1834), 70, 133 Allison v. Welde, 172 N. Y. 421 (1902), 565 Altschul v. Ludwig, 216 N. Y. 459 (1916), 574 American Assoc. v. Commonwealth, 193 Mass. 470 (1907), 37i Anderson v. Steinway, 178 App. Div. 507; 221 N. Y. 639 (1917), 286 Appeal of Rees, 8 Sadler (Penn.) 582 (1888), 391 Application of Senate, 10 Minn. 78 (1865), 135 Attorney General v. Williams, 174 Mass. 476 (1899), 137, 385 Attorney General v. Williams, 178 Mass. 330 (1901), 385 B Bacon v. Walker, 204 U. S. 311 (1907), 285 Baltimore, Mayor, etc. of, v. Clunet, etc. 23 Md. 449 (1865), 68 Barbier v. Connolly, 113 U. S. 27 (1884), 285, 286 Bauman v. Ross, 167 U. S. 548 (1897), 32 Bell v. Town of Westfield (N. J.) pending in Supr. Ct., 566 Bellows v. City Council of Cincin- nati, ii Ohio St. Rep. 544 (1860), 564 Bennett v. Boyle, 40 Barbour (N. Y.) SSI (1863), 133 Birdsall v. Clark, 73 N. Y. 73, 573 Blakeslee v. Mayor and Aldermen of Jersey City, 95 N. J. Law Rep. 284; 112 Atl. 593 (1921), 285, 286 Bond v. Mayor and City of Balti- more, 116 Md. 683 (1911), 135 Bonnett v. Vallier, 136 Wis. 103 (1908), 287 Bostock v. Sams, 95 Md. 400 (1902), 287 Boston, etc., Corp. v. Newman, 12 Pickering (Mass.) 467 (1832), 382 Boulat v. Municipality No. i, 5 La. Ann. Rep. 363 (1850), 68 Bowman v. R. Co., 125 U. S. 465 (1888), 539 Boyd v. City of Sierra Madre, 41 Cal. App. 520; 183 Pac. 230 (1919), 285 Brenner, Matter of, 170 N. Y. 186 (1902), 565 Brooklyn v. Copeland, 106 N. Y. 496 (1887), 57 Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234 (1871), 57 Brown v. City of Los Angeles, 183 Cal. 783; 192 Pac. 716 (1920), 284, 285, 287 Brown v. Maryland, 12 Wheaton (U. S.) 419 (1827), 18, 22 Browne v. Boston, 179 Mass. 321 (1901), 362 Buchanan v. Warley, 165 Ky. 559; reversed 245 U. S. 60 (1917), 287 Bulger, In re, 45 Cal. 533 (1873), 564 Bunyan v. Commissioners of Pali- sades Interstate Park, 153 N. Y. Supp. 622 (1915), 389 Burnham v. Milwaukee, 98 Wis. (1897), 362 Butler v. White, 83 Fed. Rep. 578 (1897), 565 Byrne v. Md. Realty Co., 129 Md. 202; 98 Atl. 547 (1916), 284 Calvo v. City of New Orleans, 136 La. 480; 67 So. 338 (1915). 285 Camfield v. United States, 167 U. S. 518 (1897), 19 641 642 INDEX OF CASES Carey v. City of Atlanta, 143 Ga. 192 (1915), 287 Cascade Town Co. v. Empire Water & Power Co., 181 Fed Rep. ion (1910), 391 Central Irrigation District v. De Lappe, 79 Cal. 351 (1889), 523 Chicago v. Gunning System, 214 111. 628 (1905) 266 Chicago v. Stratton, 162 111. 494; 44 N. E. 853 (1896), 266, 285 Chicago, B. & Q. Ry. Co. v. Drain- age Com'rs (111.), 200 U. S. 561 (1906), 287 Chiras v. Olinger, 50 Iowa 571 (1879), 286 Chittenden v. Wurster, 153 N. Y. 664 (1897), 565 Churchill v. Rafferty Collector, 14 Official Gazette (Philippines) 383 (1916), 392, 393 Cify of Chicago v. Stratton, 162 111. 494; 44 N. E. 853 (1896), 266 City of Des Moines v. Manhattan Oil Co. 184 N. W. 823 (1921), 286, 287 City of Hammond v. Calumet C. & S. Co. 262 Fed. 938 (1920), 286 City of New York, In re (Clinton Avenue), 68 N. Y. Supp. 196; 57 App. Div 166 ; aff 'd 167 N. Y. 624 (1901), 388, 390 City of New York, Matter of (Briggs Avenue), 118 App. Div. (N. Y.) 224 (1007), 31 City of Olympia v. Mann, I Wash. 389 (1890), 286 City of Rochester v. West, 164 N. Y. 510 (1900), 286 Citv of St. Louis v. Evraiff and Friedman, Mo. Sup. Ct, Oct. Term, 1921, 284, 292 City of St. Louis v. Russell, 116 Mo. r-3; 22 S. W. 470 (1893), 266, 286 City of St. Paul v. Kessler, 146 Minn. 124; 178 N. W. 171 (1920), 286 City of Spokane v. Camp, 50 Wash. 554; 97 Pac. 770 (1908), 266, 286 Clark v. Nash. 198 U. S. 361 (1905), 21, 136 Oiffside Park Realty Co. v. Borough of Cliffside Park, (N. J.), 114 Atl. 707 (1921), 284. 286 Ginton Avenue, Matter of, 68 N. Y. Supp. 196; 57 App. Div. 166; affd 167 N. Y. 624 (1901), 388, 390 Cochran v. Preston, 108 Md. 220 (1908), 265, 284, 394 Commonwealth v. Boston Adv. Co., 188 Mass. 348 (1905), 38 Cooley v. Port Wardens, 12 How- ard (U. S.) 209 (1851), 538 Coon v. Bd. of Public Works, ? Cal. App. 760 (1908), 266, 286 Covington, etc., Bridge Co. v. Ken- tucky, 154 U. S. 204 (1894), 539 Coyne v. Prichard (Penn.), 1 16 Atl. 315 (1922), 286 Cuba v. Mississippi Oil Co., 150 Ala. 259, 43 So. 706 (1907), 286 Curran v. Louisville, 83 Ky. 628 (1886), 57 Curran Co. v. Denver, 47 Col. 221 (1910), 266 Curtis v. City of Los Angeles, 172 Cal. 230; 156 Pac. 462 (1916), 285 Cusack Co. v. City of Chicago 267 111. 344 (1915)- 108 N. E. 340; aff'd 242 U. S. 526 (1917), 24, 266, 285, 418 D Dangel v. Williams, II Del. Ch. 213 (1916), 266, 285 Dartmouth College v. Woodward, 4 Wheaton (U. S.) 518 (1819), 163 Debt Limit, In re, 123 N. Y. Supp. 860 (1910), 362 De Lima v. Bidwell, 182 U. S. i (1901), 536 Denver v. Rogers, 46 Col. 479 (1909), 266 Des Moines v. Manhattan Oil Co. . 184 N. W. 823 (1921), 286, 287 Diamond Rings (The), 183 U. S. 176 (1001), 536 Dingley v. Boston, 100 Mass. 544 (1868), 140, 141 Dooley v. United States, 182 U. S. 222 (1901), 5.36. Dorr v. United States, 195 U. S. 138 (1904). 536 Downes v. Bidwell, 182 U. S. 244 (1901), 536 Drainage District No. r v. Richard- son County, 86 Neb. 355 09io), 145 Dunn v. City Council of Charleston, 16 So. Car. Law Rep. sometimes INDEX OF CASES 643 cited Harpers Law Rep. 189 (1824), 68, 133, 134 Durgan v. Boston, 12 Alien (Mass.) 223 (1866), 134 Embury v. Conner, 3 N. Y. 511 (1850), 133, 134 Erie R. R. v. Williams, 233 U. S. 685 (1914), 22 Eubank v. Richmond, no Va. 749 (1910); 226 U. S. 137 (1912), 266 Evans v. Holman, 244 111. 596 (1910), 362 Ex parte Cases so reported are listed under the principal word in the title, in this index. Fallbrook Irrigation District v. Bradley, 164 U. S. 112 (1896), 20, 21, 22, 144, 145 Farist Steel Co. v. Bridgeport, 60 Conn. 278 (1891), 382 Fletcher v. Peck, 6 Cranch (U. S.) 87 (1810), 141 Forbes Street, 70 Pa. St. 125 (1871), 3i Foster v. Park Commissioners, 133 Mass. 321 (1882), 386, 390 French v. Barber Asphalt Paving Co., 181 U. S. 324 (1901), 377 Fruth v. Board of Affairs of Charleston, 75 W. Va. 456; 84 S. E. 105 (1915), 279, 286 Furman Street, Matter of, 17 Wend. (N. Y.) 649 (1836), 31 Guinness v. Forchheimer, TV. Y. Law Journal, May 21, 1921 ; 190 N. Y. Supp. 929 (1921), 287 Gundling v. Chicago, 176 111. 340 (1898), 268 H Hadacheck, Ex parte, 165 Cal. 416; 132 Pac. 584 (1913), 208, 285, 287 Hadacheck v. Sebastian, 239 U. S. 394 (1915), 208, 285, 287 Hagar v. Reclamation District, in U. S. 701 (1884), 144 Hall v. House of St. Giles the Cripple, 154 N. Y. Supp. 96 (1915), 286 Hammond v. Calumet C. &. S. Co. 262 Fed. 938 (1920), 286 Handy v. Village of South Orange, (N. J.) Atl. (1922), 285, 287, 292 Hairston v. Danville and Western Railway Co., 208 U. S. 598 (1008), 21, 24 Hawaii v. Mankichi, 190 U. S. 197 (1903), 536 Hays v. City of Poplar Bluff 263 Mo. 516 (1914), 266, 286 Head v. Amozkeag Manufacturing Co., 113 U. S. 9 (1885), 145 Hellyer v. Prendergast, 176 App. Div. 383 (1917), 565 Higginson v. Nahant, 11 Allen (Mass.) 530 (1866), 387, 391 Home Ins. Co. v. New York, 134 U. S. 594 (1890), 376 Hopkins v. City of Richmond, 117 Va. 692 (1915), 287 Houck v. Little River Drainage District, 239 U. S. 254 (1915), 147 Hubbard v. Taunton, 140 Mass. 467 (1886), 387 Huus v. N. Y. etc. S. S. Co., 182 U. S. 392 (1901), 536 Ingham v. Brooks et al., 95 Conn. 317 (1920), 279, 573 In re Cases so reported are listed under the principal word in the title, in this index. Interstate, etc., Railway Co. v. Com- monwealth, 207 U. S. 79 (1907), 19 K Kane v. Gaynor, Matter of, 144 App. Div. 196; 129 N. Y. Supp. 280; aff'd 202 N. Y. 615 (1911), 565 Kelly v. Minnesota, 63 Minn. 125 (1895), 362 Kentucky R. R. Tax cases, 115 U. S. 321 (i88.O, 376 King v. MacPherson, 20 Dominion Law Reports 988 (1914), 47 Kingman v. Brockton, 153 Mass. 255 (1891), 386 Knowlton v. Moore, 178 U. S. 41 (1900), 376, 378 644 INDEX OF CASES Lake Shore, M. S. & S. Ry. Co. v. Ohio, 173 U. S. 285 (1898), 287 Lewis Publishing Co. v. Morgan, 229 U. S. 288 (1913), 419 Lexington v. Lafayette Bank, 165 Mo. 671 (1901), 362 Lincoln v. St. Com'rs, 176 Mass. 210 (1900), 371 Lincoln Trust Co. v. Williams Bldg. Corp., 183 App. Div. 225; 229 N. Y. 313 (1920), 284, 288, 290, 570 Lowell v. Boston, m Mass. 454 (1873), 135 M McCulloch v. Maryland, 4 Wheaton (U. S.) 316 (1810), 376 McMurtry v - Phillips Investment Co., 103 Ky. 308; 45 S. W. 96 (1898), 284 Madera Irrigation District, In re, 92 Cal. 296 (1891), 23 Magoun v. Illinois, etc., Bank, 170 U. S. 283 (1898), 376 Matter of Cases so reported are listed under the principal word in the title, in this index. Mayor, etc., of Baltimore v. Clunet, etc., 23 Md. 449 (1865), 68 Meagher v. Kessler, 147 Minn. 182 (1920), 286 Merrill, In re, 45 Cal. 533 (1873), 564 Meyers v. Houghton, 137 Minn. 481; 163 N. W. 754 (1917), 286 Montgomery, In re, 163 Cal. 457; 125 Pac. 1070 (1912), 285 Moss v. Ruben Stern N. Y. Law Journal, Dec. 29, 1921, 286 Myers v. Fortunato, (Del.) no Atl. 847 (1920), 266, 285 N Nahser v. City of Chicago, 271 111. 288 (1916), 286 Neal v. Vansickle, 72 Neb. 105 (1004), 145 New York, City of, In re (Clinton Avenue), 68 N. Y. Supp, 196; 57 App. Div. 166 ; aff'd 167 N. Y. 624 (1901), 388, 390 New York, Matter of City of (Briggs Avenue), 118 App. Div. (N. Y.) 224 (1907), 3i New York and N. E. R. R. Co. v. Bristol, 151 U. S. 556 (1894), 164 Nicol v. Ames, 173 U. S. 509 (1809), 376 Noble State Bank v. Haskell, 219 U. S. 104 (1911), 19, 148 Noell v. Tennessee, etc. Co., 130 Tenn. 245 (1914), 56 N. W. Laundry Co. v. Des Moines, 239 U. S. 486 (1916), 286 O Ogden v. Saunders, 12 Wheaton (U. S.) 213 (1827), 22 Olmstead v. Camp, 33 Conn. 532 (1866), 387 Olympia v. Mann, i Wash. 389 (1890), 286 O'Neill v. Learner, 239 U. S. 244 (1915), 145, 147 Ontario Knitting Co. v. State, 205 N". Y. 409 (1912), 573 Opinions of Justices, 204 Mass. 607, 616 (1910), 129, 135, 138 Opinion of justices, 234 Mass. 597: 127 N. E. 525 (1920), 284, 288 Oppenheim Apparel Corp. v. Cruise, N. Y. Law Journal, March 2, 1922, p. 1914, 419 Orr v. Gilman, 183 U. S. 278 (1902), 376 Osborne v. Grauel, 136 Md. 88 (1920), 286 People v. People v. Angle, 109 N. Y. 564 (1888), 565 People v. King, no N. Y. 418 (1888), 18 People v. Mayor, 4 N. Y. 419 (i8sO,377 People v. Ronner, 185 N. Y. 285 (1906), 377 People v. Rosenheimer, 209 N. Y. "5 (1913), 419 People v. Schweinlcr Press, 214 N. Y. 395 (I9J5), 9 People v. Williams, 189 N. Y. 131 (1907), 19 People ex rel. People ex rel Bolton v. Albertson, 5S N. Y. 50 (1873), 565 People ex rel. Sheldon v. Board of Appeals, 115 Misc. 449; 189 N. Y. INDEX OF CASES 645 Supp. 772, aff'd 200 App. Div. 907; 192 N. Y. Supp. 945 (1922), 286, 287 People ex rel. Weintz v. Burch, 79 App. Div. 156 (1903), 565 People ex rel. Goldberg v. Busse, 240 111. 338; 88 N. E. 831 (1909), 285, 286 People ex rel. Friend v. City of Chicago, 261 111. 16; 103 N. E. 609 (1913), 266, 285 People ex rel. Devery v. Coler, 173 N. Y. 103 (1903), 565 People ex rel. Busching v. Ericsson, 263 111. 368; 105 N. E. 315 (1914), 266, 285 People ex rel. Qua v. Gaffney, 142 App. Div. 122 (1911), 565 People ex rel. Cotton v. Leo, no Misc. 519; 180 N. Y. Supp. 554; aff'd 194 App. Div. 921 (1920), 287, 574 People ex rel. Facey v. Leo, no Misc. 516; 193 A. D. 910; 180 N. Y. Supp. 553; 230 N. Y. 602 (1921), 287, 575 People ex rel. Flegenheimer v. Leo, 186 App. Div. 893 (1918), 286, 575 People ex rel. Healey v. Leo, 185 N. Y. Supp. 948 (1920), 287 People ex rel. Helvetia Realty Co. v. Leo, 183 N. Y. Supp. 37; 185 N. Y. Supp. 949; 195 App. Div. 887 (1920), 287, 575 People ex rel. Hyman v. Leo, 108 Misc. 39 (1919), 574 People ex rel. McAvoy v. Leo, 109 Misc. 255; 178 N. Y. Supp. 513 (1919), 287 People ex rel. New York Central R. R. v. Leo, 105 Misc. 372; 173 N. Y. Supp. 217 (1918), 286 People ex rel. Ruth v. Leo, AT. Y. Law Journal, March 29, 1921, p. 2195; 188 N. Y. Supp. 945 (1921), 287, 575 People ex rel. Small v. Leo, 178 N. Y. Supp. 239 (1919), 287 People ex rel. Wonl v. Leo, 109 Misc. 448; 178 N. Y. Supp. 851 (1919), 287 People ex rel. Beinert v. Miller, AT. Y. Law Journal, June 18, 1917, p. 1045; 100 Misc. 318, 188 App. Div. 113, 165 N. Y. Supp. 602 (1919), 270, 287, 419, 573 People ex rel. Broadway and 96th St. Realty Co. v. Miller, N. Y. Law Journal, Nov. i, 1921, 286 People ex rel. Cockcroft v. Miller, 187 App. Div. (N. Y.) 704 (1919), 575 People ex rel. Balcorn v. Mosher, 163 N. Y. 32 (1900), 565 People ex rel Wineburgh Adt. Co. v. Murphy, 195 N. Y. 126 (1909), 287 People ex rel. Morris v. Osborn, 22 Ohio N. P. (N. S.) 549 (1920), 284 People ex rel. N. Y. C. & H. R. R. R. Co. v. Priest, 206 N. Y. 274 (1912), 31 People ex rel. Corn Hill Realty Co. v. Stroebel, 209 N. Y. 434; 103 N. E. 735 (1913), 286 People ex rel. Keller v. Village of Oak Park, 266 111. 365 ; 107 N. E. 636 (1914), 266 People ex rel. Sondern v. Walsh, 108 Misc. (N. Y.) 193 (1919), 287, 575 Penn. Mutual Life Ins. Co. v. Phila- delphia, 242 Pa. St. 47 (1913), 135 Phelps v. City of New York, 112 N. Y. 216 (1889), 573 Pierce Oil Co. v. Hope, 127 Ark. 38; 248 U. S. 498 (1917, 1918), 285 Q Quintini v. Board of Aldermen, 64 Miss. 483 (1886). 286 Quong Wo, Ex parte, 16 iCal. 220; 118 Pac. 714 (1911), 285 Quong Wo, In re, 13 Fed. Rep. 229 (1882), 266 Rathbone v. Wirth, 150 N. Y. 459 (1896), 565 Rees, Appeal of, 8 Sadler (Penn.) 582 (1888), 391 Reformed P. D. Church v. M. A. Bldg. Co. 214 N. Y. 268 (1915), 285 Reinman v. Little Rock, 107 Ark. 174 (1913) ; 237 u. s. 171 (1915), 285, 286, 287 646 INDEX OF CASES Reynolds v. Waterville, 92 Maine, 292 (1898), 362 Rochester v. West, 164 N. Y. 510 (1900), 286 Roerig v. Houghton, 144 Minn. 231 ; 175 N. W. 542 (1919), 285 Rogers v. Common Council of Buf- falo, 123 N. Y. 173 (1890), 565 Romar Realty Co. v. Board of Com- missioners (N. J.), 114 Atl. 248, 284 Russell, Matter of, 158 N. Y. Supp. 162 (1916), 266, 286 St. Louis v. Dorr, 145 Mo. 466 (1898), 285 St. Louis v. Evraiff and Friedman, Mo. Sup. Ct., Oct. Term, 1921, 284, 292 St. Louis v. Hill, 116 Mo. 527 (1893), 279 St. Louis v. Russell, 116 Mo. 248; 22 S. W. 470 (1893), 266, 286 St. Paul v. Kessler, 146 Minn. 124; 178 N. W. 171 (1920), 286 St. Louis Gunning Adv. Co. v. St. Louis, 235 Mo. 99 (1911), 395 St. Louis Poster Adv. Co. v. St. Louis, 249 U. S. 269 (1919), 395 Sam Kee v. Wilde 183 Pac. Rep. 164 (1919), 266, 285 San Diego Tuberculosis Hospital v. City of East San Diego, 200 Pac. 393 (1921), 287 Schwartz v. Brownlow, 50 App. D. C. 279; 270 Fed. 1019 (1921), 284 Scott v. Saratoga Springs, 131 App. Div. 3.17 (1009), 565 Sears v. St. Com'rs, 180 Mass. 274 (1902), 371 Seattle, etc., Co. v. Seattle, 37 Wash. 274 (1905), 57 Shea v. City of Muncie, 148 Ind. 14; 46 N. E. 138 (1897). 285 Shepard v. Seattle, 59 Wash. 363 (1910), 266 Shiras v. Olinger, 50 Iowa 571 (1879), 286 Shoemaker v. U. S., 147 U. S. 282 (1892-1893), 382, 384, 385, 386, 389, 390 Sing Lee, Ex parte, 96 Cal. 354 (1892), 266 Sinking Fund Cases, 99 U. S. 700 (1878), 141 Smith v. Hosford, 106 Kans. 363 (1920), 279 Smolensky v. City of Chicago, 282 111. 131 (1917), 285 South Orange v. Heller, 92 N. J. Eq. Rep. 505 (1921), 279, 286 Spann v. City of Dallas, 189 S. W. 999 (1916), 285 Spokane v. Camp, 50 Wash. 554; 97 Pac. 770 (1908), 266, 286 Spring Valley Water Works v. San Francisco, 61 Cal. 3 (1881), 564 Standard Oil Co. v. Danville, 119 111. 50; 105 N. E. 15 (1902), 285 Stoughtenburg v. Herrick, 129 U. S. 141 (1889), 535 Strickley v. Highland Boy Mining Co., 200 U. S. 527 (1906), 21 Struck v. Kohler, 187 Ky. 517; 219 S. W. 435 (1920), 284 Stubbe v. Adamson, Matter of, 220 N. Y. 459 (1917), 575 Stubbs v. Scott, 127 Md. 86; 95 Atl. 1060 (1915), 285 Sweet v. Rechel, 159 U. S. 380 (1895), 140, 143 State v. State v. Carragan, Collector, 36 N. J. Law Reports 52 (1872), 31 State v. Darnell, 166 N. Car. 300 (1914), 287 State v. Gurry, 121 Md. 534 (1913), 287 State v. Moore, 7 Wash. 173 (1893), 32 State v. Newton, 3 Tenn. Civ. App. 93 (1912), 286 State v. Plummer, 97 Ore. 518; 189 Pac. 405; 191 Pac. 883 (1920), 285 State v. Register of Deeds, 26 Minn. 521 (1880), 32 State v. Whitlock, 149 N. C. 542 (1908), 286 State ex rel. State ex rel. Roerig v. City of Minneapolis, n6 Minn. 479; 162 N. W. 477 (1917), 285 State ex rel. Westminster Presby- terian Church of Omaha v. Edge- comb, pending in Nebr. State Supr. Ct., 285, 287 INDEX OF CASES 647 State ex rel. Nehrbass v. Harper, 162 Wise. 589 (1916), 266, 286 State ex rel. Banner v. Houghton, 142 Minn. 28; 170 N. W. 853 (1919), 286 State ex rel. Lachtman v. Hough- ton, 134 Minn. 226 (1916), 285 State ex rel. Twin City Bldg. and Investment Co. v. Houghton, 144 Minn, i ; 174 N. W. 885 ; 176 N. W. 159 (iQiQ), 284, 285, 289 State ex rel. Morris v. Osborn, 22 Ohio N. P. (N. S.) 549 (1920), 285, 288 State ex rel. Blaise v. New Orleans, 142 La. 73; 76 So. 244 (1917), 285 State ex rel. Krittenbunk v. With- nell, 91 Neb. 102; 135 N. W. 376 (1912), 286 State ex rel. Omaha Gas Co. v. Withnell, 78 Neb. 33 (1907), 266, 286 Talbot v. Hudson, 16 Gray (Mass.) 417 (1860), 141 Telford v. Belknap, 126 Ky. 244 (1907), 266 Tennessee v. Newton, 3 Tenn. Civ. App. 93 (1912), 286 Town of Cuba v. Mississippi Oil Co., 150 Ala. 259; 43 So. 706 (1907), 286 Turlock Irrigation District v. Williams, 76 Cal. 360 (1888), 23 U United States v. Gettysburg Elec. R'y Co., 160 U. S. 668 (1896), 385, 389 V Van Husan v. Heames, 96 Mich, 504 (1893), 32 Varney & Green v. Williams, 155 Call. 318 (1909), 286 Veazie Bank v. Fenno, 8 Wall. (U. S.) 533 (1869), 376 Village of South Orange v. Heller, 92 N. J. Eq. Rep. 505 (1921), 279, 286 W Walcher v. First Presbyterian Chuich, 76 Okla. 9; 184 Pac. 106 (1909), 286 Watertown v. Mayo, 109 Mass. 315 (1872), 286 Weeks v. Heurich, 40 App. D. C. 46 (1913), 266, 286 Welch v. Swasey, 193 Mass. 364 (1908); affirmed 214 U. S. 91 (1909), 23, 284, 287, 393 Wells v. St. Com'rs., 187 Mass. 451 (1905), 37i West Side Mortgage Co. v. Leo, Matter of, 174 N. Y. Supp. 451 (1919), 286, 287, 575 Whitridge v. Park, 100 Misc. 367; 165 N. Y. Supp. 640; 179 A. D. 884 (1917), 285, 286 Williams v. Boston, 190 Mass. 541 (1905-1906), 385 Williams v. Parker, 188 U. S. 492 (1902-1903), 385 Williams v. Wolfgang, 151 Iowa 548 (1911), 286 Willison v. Cooke, 54 Col. 320; 130 Pac. 828 (1913), 266, 284, 285 Wilshire, Matter of, 103 Fed Rep. 620 (1900), 395 Windsor v. Whitney, 95 Conn. 357 (1920), 31, 36, 138, 279, 573 Winston v. Spokane, 12 Wash. 524 (1895), 362 Woodstock v. Gallup, 28 Vt. 587 (1856), 382 Wurtz v. Hoagland, 114 U. S. 606 (1885), 145 INDEX OF STATUTES NOTE: Page references in black face type indicate that the text of the statute is given in whole or in part. PAGE UNITED STATES. Constitution XlVth Amendment 24, 45, 46 Compiled Statutes, 1916, sec. 1214 25 Judicial Code, sec. 237 25 4 Statutes at Large 708 597 ALABAMA. 1919, p. 880 563 CALIFORNIA. 1915, ch. 757, p. 1514 544, 603-604 1917, ch. 734, p. 1419 291 1917, ch. 740, p. 1514 553, 566 Alameda. Zoning ordinance, 1919 275^277, 341-355 Los Angeles. Zoning ordinance 191, 201, 267 . Ordinance, 1918, No. 38,315, n. s. (June 25) 418 San Francisco. Ordinance, No. 4059, n. s. (Feb. 16) 418 CONNECTICUT. General Statutes, 1918, ch. 168 411 General Statutes, 1918, sees. 391-396 31, 177 ibid., sees. 519 ff 177 1907, ch. 186 387 1907; 15 Special Laws, p. 43 (No. 61) 554, 559, 563 1909; 15 ibid., p. 634 (No. 34) 554, 559 1909; 15 ibid., p. 661 (No. 74) 554, 559 1913 ; 16 ibid., p. 1035 (No. 351) 562 1917; 17 ibid., p. 827 (No. 133) 36 Bridgeport. Ordinance, 1913, Aug. 18 555 DISTRICT OF COLUMBIA. 30 U. S. Stat. 922, ch. 322 (March I, 1899) 265 32 ibid. 1022, ch. 997 (March 3, 1903) 265 33 ibid. 14, ch. 158 (Feb. 16, 1904) 265 36 ibid. 452, ch. 263 (June I, 1910) 265, 566 41 ibid. 500, ch. 92 (March i, 1920) 301-304,566 ILLINOIS. 1915, p. 260 563 1919, p. 262 281 1921, p. 180 281 Chicago. Code, sec. 450 193 INDIANA. Burns' Annot. Ind. Statutes, 1914, sec. 8753 184-185 1911, p. 566 184-185 Indianapolis. Zoning ordinances, 1905, 1912 265 MARYLAND. 1904, ch. 42 265, 393 MASSACHUSETTS. Constitution, ch. III. art. II 135 Constitution. Amendment, art. 39 12 9, 131, 148 ibid . ibid., art. 43 57 ibid, ibid., art. 50 395 ibid, ibid., art. 60 289, 293, 566 General Laws, 1920, ch. 40, sees. 25-30 289 ibid., ch. 41, sec. 80 i4 ibid., ch. 45, sec. n 387 649 6so INDEX OF STATUTES MASSACHUSETTS. General Laws, ibid., ch. 82, sec. 37 184 ibid., ch. 93, sees. 29-33 395 ibid., ch. 143, sec. 3 289 1867, ch. 308 140, 141 1893, ch. 462 177, 184 1898, ch. 452 386 1899, ch. 457 387 1901, ch. 525. 387 1902, ch. 543 3^7 1904, ch. 443 68, 128, 129, 130 1908, ch. 117 140 1910, ch. 606 140 191 1, ch. 84 589 191 1, ch. 607 553 1912, ch. 186 153 1913, ch. 595 553 1915, ch. 165 562 1919, ch. 350 553 1920, ch. 601 568 Special Acts, 1904, ch. 333 266 ibid., 1905, ch. 383 266 ibid., 1907, ch. 416 266 ibid., 1912, ch. 582 ibid., 1914, ch. 786 ibid., 1915, ch. 333 266 ibid., 1919, ch. 156 266 MICHIGAN. 1921, No. 207 Detroit. Charter, ch. X, sec. 7 562, 563 MINNESOTA. 1919, ch. 292, p. 300 562, 563, 576-578 MISSOURI. 1921, p. 481 277, 568 St. Louis. Charter, art. vi, sec. i 388 . Billboard ordinance 394 NEW JERSEY. Compiled Statutes, 1910, vol. Ill, p. 3544 383 P. L. 1833-1834, p. 118 550, 597 P. L. 1870, p. 311, ch. 117 128, 149-150 P. L. 1893, P. 496, ch. 285 383 P. L. 1895, p. 88, ch. 28 419 P. L. 1898, p. 439, ch. 191 }i<) P. L. 191 1, p. 103, ch. 71 558 P. L. 1912, p. 267, ch. 177 550 P. L. 1913, p. 1 12, ch. 72 558 P. L. 1913, p. 281, ch. 170 55S P. L. 1914, p. 205, ch. 123 550-552 P. L. 1915, p. 350, ch. 188 559, 565. 578 581 P. L. 1916, p. 377, ch. 175 559, 565, 578 581 P. L. 1917, p. 94, ch. 54 567, 568 P. L. 1917, p. 288, ch. 130 549. 597 P. L. 1918, p. 338, ch. 146 sf.- P. L. 1918, p. 567, ch. 185, art. XVI 554, 603 P. L. 1920, p. 414, ch. 216 559, 565. 578-581 P. L. 1920, p. 436, ch. 229 298 301 P. L. 1920, p. 455, ch. 240 292, 56* P. L. 1920, p. 496, ch. 274 567. P. L. 1921, p. 41 j, ch. 151 55" P. L. 1921, p. 423, ch. 152 550, 597 P. L, 1921, p. 816, ch. 276 INDEX OF STATUTES 651 PACK NEW JERSEY. P. L. 1922, y. 25, ch. 9 550, 599 P. L. 1922, p. 159, ch. 8? 419 P. L. 1922, p. 277, ch. 162 566, 567 Elisabeth. Zoning ordinance 278 Newark. Zoning ordinance 277 NEW YORK. Constitution, art. VIII, sec. 10 361-362 Constitution, art. X, sec. 2 565 ibid., amdt. to art. I, sec. 7 (Nov. 4, 1913) No. 53,131 149 General City Law, sec. 21 382 ibid., sees. 81-83 295-298, 567, 568 General Municipal Law, art. I2A, sees. 234-2393 559, 581-584 Tenement House Law 192 1812, ch. 174 70, 128, 129, 133 1834, ch. 8 550, 597 1868, ch. 631 .371 1869, ch. 861 371 1891, ch. 4 372 1899, ch. 257 388 1900, ch. 170 390 1901, ch. 334 192 1903, ch. 336 387 1907, ch. 594 383 1910, ch. 276 362 191 1, ch. 880 387 1913, ch. 247 382 1913, ch. 551 192 1913, ch. 699 559, 581-584 1913, ch. 757 387 1914, ch. 470 293-295, 566, 567, 573 1915, ch. 109 554 1915, ch. 545 372-373 1915, ch. 593 153 1915, ch. 596 53 1915, ch. 606 153 1916, ch. 112 153-159 1916, ch. 497 293-295, 573 1916, ch. 503 293-295, 573, 575 1916, ch. 599 383 1917, ch. 426 549, 597 1917, ch. 483 295-298 1917, ch. 601 293-295 1917, ch. 631 180, 185-189, 561 1917, ch. 632 561 1919, ch. 648 192 1920, ch. 377 559, 581-584 1920, ch. 743 295-298, 567 1921, ch. 154 550, 597-603 1921, ch. 203 55, 597 1922, ch. 43 550, 599 1922, ch. 322 281 New York City. Charter, sees. 71 ; 83-84 . ibid. sees. 242-3, 242-b 293-295 . ibid. sec. 247 368-369 . ibid. sees. 633-^639 564. 584-587 . ibid. sec. 7i8-d 295, 568 . ibid. sec. 719 574 6$2 INDEX OF STATUTES PAGE NEW YORK. Nnv York City. Charter, ibid., sec. 970 185-187 . ibid. sees. 97O-a, 97O-b 153-159 . ibid. sees. 972-973 593 . ibid. sec. 976 187-189 . ibid. sees. I43I-I453 53 . Code of Ordinances, eh. 23, art. 16, sec. 215 419 . Zoning Resolution, adopted July 25, 1916 and amended from time to time 268-276, 290, 305-323, 402 Schenectady. Ordinance, Dec. 9, 1912 50.' White Plains. Zoning ordinance 278 OHIO. Constitution, art. XVIII, sec. 10 130, 132, 148 General Code, 1910, sec. 3677 129, 151 ibid. sees. 4366-7 to 4366-12 566 Municipal Code, 1902 129 1904. 97 v. 333 129, 151 1919. 1 08 v. 1 175 566 Akron. Charter, sec. 102 562 Cincinnati. Ordinance, 1919, No. 25 (Jan. 28) 418 Cleveland. Charter, sec. 77 559, 587 . Ordinance, No. 52,247-AB (Dec. 6, 1920) 280, 57- East Cleveland. Zoning ordinance of July, 1919 288 Toledo. Ordinance, 1920, No. 1839 (May 17) 418 OREGON. Laws, 1920, sec. 3837-3840 131, 151-152 Laws, 1920, sec. 3874 291 1913, ch. 269 131, 151-152 1919, ch. 300 506 1921, ch. 343 388 PENNSYLVANIA. Constitution, art. IX, sec. 8 361 1868, Apr. 14; P. L. 1087 i->8 1871, June 6; P. L. 1353 5*7 1891, May 16; P. L. 75 587-588 191 1, May 31 ; P. L. 468 588 1911, June 10; P. L. 872 5*<> 1913, May 23 ; P. L. 339 ' 547, 594-597 1913, July 16; P. L. 752 589 1913, July 22; P. L. 902 587-588 1915, June i ; P. L. 705 547, 594 1919, Apr. 4; P. L. 45 553, 604-605 1919, June 25 ; P. L. 581 567 1921, Apr. 6 ; P. L. 107 177. 588 1921, Apr. 26; P. L. 295 177 1921, May 17 ; P. L. 841 1921, May 17 ; P. L. 844 i/7, 587-588 Philadelphia. Ordinances, March 31, 1884; June 23, 1888; June 30, 1892; June 9, 1900 i?7 RHODE ISLAND. Constitution, art. XVII, sec. 1 131. 149 1917, ch. 1560 131. 159-160 Providence. Ordinances, 1913, Dec. 2 (Ch. 599, No. 407) 555 Soi TH CAROLINA. 1817. 7 Statutes, 136 i.U VIRGINIA. Constitution, art. VIII, sec. 127 Code of 1919. sec. 3065 129, 130, 131, 152-15 WISCONSIN. Constitution, art. XI, sec. 3a 130, 13'. 148-1' 1909, ch. 95 ^ 191 7, ch. 404 5 1917, ch. 507 -i 3 * '3i INDEX OF STATUTES 653 PAGE WISCONSIN, Milwaukee. Zoning Ordinance. (Milwaukee Code, 1914, sees. 26.3 to 26.77) 277, 280, 323-341 PHILIPPINE ISLANDS. 32 U. S. Stat. 691, ch. 1369 (July i, 1902) 393 39 U. S. Stat. 545, ch. 416 (Aug. 29, 1916) 393 CANADA : DOMINION. Revised Statutes, 1906, vol. 3, ch. 143 67 1911, ch. 6 382 ABERTA. 1913, c h. 18 5IO Edmonton, Resolutions of City Council, Sept. 29, 1919 41-42 BRITISH COLUMBIA. Revised Statutes, 1911, ch. 128, p. 1469 74 MANITOBA. Revised Statutes, 1913, ch. 69, sec. 7 68 Revised Statutes, ch. 133, sec. 483 372 ibid., ch. 133, sec. 561 361 ibid., ch. 133, sec. 691 68 1916, ch. 114 265, 510 NEW BRUNSWICK. 1912 (2 Geo. V) ch. 19 510 NOVA SCOTIA. 1912 (2 Geo. V) ch. 6 510 IQIS (5 Geo. V) ch. 3 510 Halifax. City Charter, 1914, sees. 683, 698 74, 512 ONTARIO. Revised Statutes, 1914 (Munic. Corp.) ch. 192, sec. 322. .68, 74, Revised Statutes, 1914 (Local improvements) ch. 193 .' 372 1911 (i Geo. V) ch. 119 74 1917 (7 Geo. V) ch. 44 510, 513 1918 (8 Geo. V) ch. 38 510, 513 1919 (9 Geo. V) ch. 53 510, 513 1920 (10-11 Geo. V) ch. 60 510, 513 1921 (11 Geo. V) ch. 63 74, 265, 510, 513 Toronto. Charter 74 PRINCE EDWARD ISLAND.. 1918, ch. 7 510 QUEBEC. Revised Statutes, 1909, art. 5638 392 1909 (9 Edw. VII) ch. 80, sec. 4 392 1912 (3 Geo. V) ch. 54, sec. 20 74 Montreal. Charter, art. 421 74 SASKATCHEWAN. Revised Statutes, 1920, ch. 104 265, 510 1915, ch. 16 56, 361 1916, ch. 19 74, 361, 372 382, 392 1917, ch. 70 510 1918-19, ch. 40 510 1919-20, ch. 29 510 ENGLAND. 8 & 9 Viet. ch. 18 (Land Clauses Consolidation Act, 1845) 67, 71, 73 II & 12 Viet., ch. 63 (Public Health Act, 1848) 498 14 & 15 Viet., ch. 28 (Common Lodging Houses Act, 1851) 81 14 & 15 Viet., ch. 34 (Labouring Classes Lodging Houses Act, 1851) 81 31 & 32 Viet., ch. 130 (Artizans and Labourers Dwellings Act, 1868) 81 38 & 39 Viet., ch. 36 (Artizans and Labourers Dwellings Improve- ment Act, 1875) 8l . 88-90 38 & 39 Viet., ch. 55 (Public Health Act, 1875) 498 45 & 46 Viet., ch. 73 (Ancient Monuments Protection Act, 1882) . . . 399 51 & 52 Viet., ch. 52 (Public Health Buildings in Streets Act, 1888) . 498 53 & 54 Viet., ch. 59 (Health Amendment Act, 1890) 498 53 & 54 Viet., ch. 70 (Housing of Working Classes Act, 1890) 75, 88-90, 518, 525 57 & 58 Viet., ch. 213 (London Building Act, 1894) 421 63 & 64 Viet., ch. 34 (Ancient Monuments Protection Act, 1900) 399 7 Edw. VII., ch. 27 (Advertisements Regulation Act, 1907) 420, 441-442 654 INDEX OF STATUTES PAGE ENGLAND. 7 Edw. VII., ch. 53 (Public Health Acts Amdt. Act, 1907) 421, 498 9 Edw. VII., ch. 44 (Housing, Town Planning, etc., Act, 1909) 3, 74, 201, 218, 265, 364, 369, 499-510. Si8, 519-529 9 Edw. VII., ch. 47 (Development and Road Improvement Funds Act, 1909) 7i 10 Edw. VII., ch. 8 (Finance (1909-1910) Act, 1910) 358 3 & 4 Geo. V., ch. 32 (Ancient Monuments Consolidation and Amendment Act, 1913) 399-4OO, 421, 432-441 9 & 10 Geo. V., ch. 21 (Ministry of Health Act, 1919) 498, 501 9 & 10 Geo. V., ch. 35 (Housing, Town Planning, etc., Act, 1919) 3, 74, 82, 201, 369. 499-510, 518-529 9 & 10 Geo. V., ch. 57 (Acquisition of Land (Assessment of Com- pensation) Act, 1919) 47. 54, 73, 74, 75 9 & 10 Geo. V., ch. 60 (Housing, Town Planning, etc. (Scotland) Act, 1919) Sio Birmingham. 1913; Aug. 13. East Birmingham Planning Scheme (as amd. May 30, 1918) 506-509 Chesterfield. 1916; Sept. 4 (Chester St. Area). Planning Scheme.. 503 Dunfermline (Scotland). 1920; May 7. Planning Scheme 503 Leeds. 1921; Oct. 14 (Buckingham House). Planning Scheme 503 North Brumsgrove. 1915; Dec. 13 (Rubery). Planning Scheme).. 503 Otley. 1921 ; Oct. 14. Planning Scheme 53 Rochdale. 1915; Jan. 20 (Marland). Planning Scheme 503 INDIA: BENGAL. 191 1, No. V. Calcutta Improvement Act 88 BOMBAY. 1898, No. IV 88 1915, No. I 510 MADRAS. 1920, Aug. 28 510 AUSTRALIA. QUEENSLAND. Statutes, 1911 (Land Resumption Act of 1906) vol. 3, p. 3608 73 SOUTH AUSTRALIA. 1920 (11 Geo. V) No. 1452 510 NEW ZEALAND. Consolidated Statutes, 1908, No. 124 88 (Municipal Corporations) Consolidated Statutes, 1908, No. 160 (Public Works) 73, 74, 382 ibid., No. 172 (Scenery Preservation) 382 PALESTINE. Jerusalem. Planning ordinance 510 FRANCE. Declaration of Rights, 1789 66 Constitution of 1791. Declaration of Rights 13, 66 Civil Code, art. 545 13, 66 Penal Code, art. 463 422, 432 1807. Bulletin des lois. IV* sen, Bull. 162, No. 2797... 66, 67, 75, 7- 1810. ibid., IV sen, Bull. 273, No. 5255 66, 67 1810. ibid., IV* ser., Bull. 323, No. 6059 210 1833. ibid., IX* ser., Bull. 107, No. 241 66, 67, 69 1841. ibid., IX* ser., Bull. 808, No. 9285 66, 67. 69, 76, 77, 91-105, 364, 4- 1850. ibid., X ser., Bull. 252, No. 2068 70 1852. ibid., X sen, Bull. 514, No. 3914 77, 78, 382 1858. ibid., XI ser., Bull. 656, No. 61 1 1 7* 1871. ibid., XII ser., Bull. 61, No. 484 1876. ibid., XII" ser., Bull. 305, No. 5251 78 1881. ibid., XII ser., Bull. 637, No. 10,850 4-^ 1884. ibid., XII ser., Bull. 835, No. 14,221 529, 530, 534 1887. ibid., XII s*r., Bull. 1076, No. 17,739 424, 432 1892, ibid., XII sir., Bull. 1523, No. 25,892 4-7 INDEX OF STATUTES 655 PAGE FRANCE. 1902, ibid., XIP ser., Bull. 2348, No. 41492 420 1902. ibid.. XIl e ser., Bull. 2348, No. 41,496 76, 533 1005. ibid.. XII e ser., Bull. 2663, No. 46,547 432 1906. ibid., XII ser., Bull. 2736, No. 47,7 13 399, 422-423, 530 1909. ibid. nouv. ser., Bull. 14, No. 623 432 1910. ibid., nouv. ser., Bull. 31, No. 1447 530 1910. ibid., nouv. ser., Bull. 32, No. 1481 420 1911. ibid., nouv. sen, Bull. 61, No. 2933, art. 118 78, 364, 382 1912. ibid., nouv. ser., Bull. 79, No. 3950 78, 382 1912. ibid., nouv. ser. Bull. 75, No. 3703 432 1912. ibid., nouv. ser., Bull. 85, No. 4336 420 1913. ibid., nouv. ser., Bull. 120, No. 6459 397, 420, 423-432 1914. ibid., nouv. ser., Bull. 128, No. 6926 91, 99, 101 1915. ibid., nouv. ser. Bull. 156, No. 8736 74, 76 1918. ibid., nouv. ser., Bull. 237, No. 13,222 76, 79, 91-105 1918. ibid., nouv. ser., Bull. 238, No. 13,350 514 1919. ibid., nouv. ser., Bull. 245, No. 13,810 514 1919. ibid., nouv. ser., Bull. 245, No. 13,850 499, 514-517, 529-534 1919. ibid., nouv. ser., Bull. 248, No. 14,081 514 1921. ibid., nouv. ser. Bull. 302, No. 19,639 91, 93, 97, 100-105 Paris. Council votes, 1897, Dec. 6, 20 ; 1908, June 19 407 Prefectorial decrees, 1898, Feb. 2; 1909, May 18 407 GERMANY. Constitution, 1849 13 Constitution, 1871 13 Biirgerliches Gesetzbuch (Civil Code) sees. 1090-1092 125, 126 Reichsgewerbeordnung (Imperial Industrial Law).... 210, 211, 448, 490 1869. Bundes-Gesetz Blatt, No. 312 210 ANHALT. 1905; June 19. Building Ordinance 220, 403, 421, 460, 461 1906 ; May 21 460 1916 ; Oct. 18 460 BADEN. 1863, Oct. 31. Polizeistrafgesetzbuch 421 1904. Gesetzes- und Verordnungsblatt, p. 397 421 1907. Sept. i. Building Ordinance 220, 404, 449 1908. Gesetzes- und Verordnungsblatt, p. 605 105, 460, 461 Karlsruhe. Building Ordinance, Mar. 29, 1912 216, 217, 263 BAVARIA. Polizeistrafgesetzbuch 404, 421 1901 ; Feb. 17. Building Ordinance 220, 403 1908, July 6 404, 421 Munich. Building Ordinances. 1895; July 29, 1900; March 21 403 . Building Ordinance. 1904 ; Apr. 20 264, 403 . Building Ordinance. 1910 ; Aug. 3 403 BRUNSWICK. General Building Regulations 220 HAMBURG. 1892 ; Dec. 30 and amendments 105 HESSE. 1891; April 30. General Building Ordinance 85, 220 1895, July 15 85 1902, July 16 398, 400 PRUSSIA. 1794. Allgemeines Landrecht 220, 400, 402 1845. Gesetz Sammlung, p. 41 210 1850. ibid., p. 265 220 1867. ibid., p. 1529 228 1874. ibid., p. 221 67, 113, 115, 120, 122, 471 473 1875. ibid., p. 561 67, 113, 124, 401, 451-457, 466-472, 473 1883. ibid., p. 195 121, 220, 228 1893. ibid., p. 152 470, 472 1895. ibid., p. 55i 86 1896. ibid., p. 82 86 656 INDEX OF STATUTES PRUSSIA. 1899. ibid., p. 291 i_>o 1902. ibid., p. 159 4-i 1902. ibid., p. 273 ("Lex Adickes") 87, 105, 106-123, 451, 471 1904. ibid., p. 227 45' 1905. ibid., p. 179 61 1907. ibid., p. 259 105, 471 1907. ibid., p. 260 401, 403, 404, 421 1914. ibid., p. 159 473 1915. ibid., p. 57 473 1918. ibid., p. 23 57, 105, 215-216, 220, 401, 449, 451, 455, 456, 466-474 Altona. 1884, Bulk Zoning Building Ordinance 212 Berlin, 1902. Zone Ordinances for Suburbs 216 Cologne. Building Ordinance 262 Dusseldorf. Building Ordinance 217, 250-261 Frank f or t-on-t he- Main. Ordinance, 1884, July 15 403 1891. Building Ordinances 213-215, 216, 227-250, 262 (Table) 1900 ; Feb. 27 400 191 1 ; Nov. 3 401 1912 ; June 4 403 Hildesheim. 1899, June 17 401 SAXONY. 1834, Gesetz- und Verordnungsblatt, p. 141 85 1855, ibid., p. 483 487 1861, ibid., p. 117 85 1873, ibid., p. 275 4/6 1900, ibid., p. 381 84, 105, 221, 421, 449, 457-461, 474-495 1900, ibid., p. 428 477 1904, ibid., p. 163 84, 105, 421, 457-461, 474-495 1909, ibid., p. 219 404, 421 Dresden. Strassenbauordnung 84, ->i<> Leipzig. Ortsbauordnung, 1897, sec. 34 84 WURTTEMBERG. 1888 ; Dec. 20, art. 1 1 67 1899 ; July 28, art. 209 67 1910; July 28. Building Ordinance. .84, 220, 398, 400, 402, 404, 421, 461 Stuttgart. Zoning Ordinances 216 AUSTRIA. Vienna. 1883 ; Jan. 17. Building Ordinance 84 BELGIUM. Constitution, 1831 14 1858. Pasinomie des lois, p. 217 (July i ) 79 1867. ibid., p. 287 (Nov. 15) 79, 82, 382 1919. ibid., pp. 202, 215, 230 (May 10, May 15, June i) 514 GREECE. Salonika. Town Planning Act 87 HOLLAND. 1851 ; Aug. 28. Expropriation Law 1886 ; Apr. 15 495 1901 ; June 22. Housing Law (amended 1902, 1903, 1905, 1906, 1907, 1913, 1915, 1917, 1919) 74. 495-497 ITALY. 1802. Lex Doria Pamphili 396 1821. Lex Pacca 396 1865. Raccolta Ufficiale, v. 12, No. 2359 (June 25).. 67, 80, 44: 465-466 1889. Raccolta Ufficiale, y. 91, No. 5888 decies (Dec. 23, 1888) jjo 1909. ibid., 1909, part, prin., v. 3, No. 364 (June 20) 396 1912. ibid.. 1912, part, prin., v. 3, No. 688 (June 23) JAPAN. Law No. 44 1919. Decrees No. 261, 281 306, 307 SWEDEN. 1874 ; May 8. Urban Building Act 447, 462, 463 1907; Aug. 31 84, 447, 4' INDEX OF STATUTES 657 PAGE SWEDEN. 1917 ; May 12 447, 462 1919 ; May 27 447 SWITZERLAND. VAUD. Lausanne. 1898; May 12. Bulding Police Law 382 1915, Jan. 15 400 ZURICH. 1893, Apr. 23. Building Law 84, 86 INDEX Abutting Landowners, see LANDOWNERS. Acceptance by City, works of art, see BEAUTY, PROMOTION OF- park spaces, see PARKS AND PARKWAYS; streets, see STREETS AND HIGHWAYS. See also CITIES AND TOWNS. Access, right of riparian owner, navigable streams, 171 and note Accessories, in residence districts, 268. See also RESIDENCE USES AND DISTRICTS. Accessory Garages, see GARAGES. Accidents, influence of bulk regulations, 195. See also ZONE REGU- LATIONS. Acquisition, excess, distinguished from excess condemnation, 64; of land by city, see LAND. See also EMINENT DOMAIN. Acquisition of Land Act (England), 74 note 26. See also CONSTITU- TIONAL AND STATUTORY PROVISIONS. Acre, number of buildings, see AREA LIMITATIONS AND DIS- TRICTS. Adams, Thomas, criticism of term "zoning," 197 note 9. See also ZONING. Adickes, Franz, influence on bulk zoning, 212-213. See also LEX ADICKES. Adjustment of Boundaries, East Birmingham (England) scheme, 508 note 20. ADMINISTRATION: i. In General; 2. Administrative Methods in General; 3. Jurisdiction; 4. Planning Authorities; 5. Procedure; 6. Penalties. Cross-references: BEAUTY, PROMOTION OF (6); CITIES AND TOWNS (i, 4, 5); EMINENT DOMAIN (7); ENGLAND (i, 7) ; FRANCE (5) ; GERMANY (2, 6) ; HARBORS AND WATER FRONT (i, 4, 5); PARKS AND PARKWAYS (6); PLANNING (i, 11); PLANNING COMMISSIONS (2, 3); PUBLIC IMPROVEMENTS (2) ; RECOMMENDATIONS AND SUGGESTED REFORMS (i, 3, 7, 19); SETBACKS (i) ; STATES (2) ; STREETS AND HIGHWAYS (2) ; TRANSPOR- TATION (5); ZONE REGULATIONS (i). 1. In General: importance, 443-44, 576; development in United States, unofficial to official activity, 553-4. 2. Administrative Methods in General: execution of international or interstate plan, 9; Italy, 444-446; Sweden, 447, 462-464; Germany, 447-462; England, 498-510; Canada, 511-513; France, 513-517; United States, 535-576. 3. Jurisdiction: national, state and local in United States, 535; prob- lem in metropolitan planning, 7; state (Germany), 448-451; state and local authorities (Saxony), 457-459; harbors and other navigable waters, national and state, 537 ; state, complete except as limited by United States and state constitution, 543; city, extension beyond 659 660 INDEX limits, usual methods criticised, 546; commission, matters included, details, 561-2; proposed Metropolitan Planning Board (Mass), 590. 4. Planning Authorities: discretionary power, criticism, 279; Ger- many, 450; Prussia, 452, 453, 472; Saxony, 457-459; England, 501; Ministry of Health (England), 501-502; "responsible authority" (England), 501; general features established by scheme, details by "responsible authority" (England), 505; "responsible authority." East Birmingham (England) scheme, 506 note 20; "responsible authority" (Canada), 511; planning commissions (France), 515; default in making or executing plan, mandamus (England), 526; official commission, prevailing form in U. S., 553 ; decisions reviewed by Board of Appeals, 569; planning department (Minnesota), 577. 5. Procedure: eminent domain, importance, 49; eminent domain, sur- vey, 51-55; expropriation (France), 68, 69, 91-105; condemnation proceedings (England), 73 note 23; replotting, 85; replotting (Zurich), 86, 87; Housing of the Working Classes Act, 1890 (Eng- land), 89-90; Lex Adickes (Prussian replotting statute), 106-127; excess condemnation (New York City), 153-159; New York City zoning resolutions, 321-322; Alameda (Cal.) ordinance, 352; secur- ing adoption of plan (France), 517; preparation and adoption of plan (England), 522-523; adoption of plan (France), 529-534. 6. Penalties: zoning resolution (New York City), 321-322; zoning ordinance (Milwaukee), 340; ordinance (Alameda, Cal), 352; law for protection of objects of historic and artistic interest (France), 431- Adoption of Plan, see PLAN. Advantages, excess condemnation, see EXCESS CONDEMNATION; Prussian control over new building, see PRUSSIA ; regional plan by U. S., see PLANNING; setback, see SETBACKS; use zoning, see USE ZONING. Advertisements, see OUTDOOR ADVERTISING. Advice, by planning commission, see PLANNING COMMISSIONS; by state, see STATES; by United States, see UNITED STATES. Advisory Powers, art commissions, see BEAUTY, PROMOTION OF; planning commissions, see PLANNING COMMISSIONS. Advisory Regional Plan by U. S. suggested, 541. See also PLAN ; PLANNING. Esthetics, see BEAUTY, PROMOTION OF. Agreement, see CONTRACTS. Agricultural Land, see LAND. Air, excess condemnation, 133; tall buildings, 196; zoning regulations, 204 note 14 (4). See also EXCESS CONDEMNATION; TALL BUILDINGS; ZONE REGULATIONS. Alameda (Cal.), height limitations, 275; zoning ordinance, 341-353- See also HEIGHT LIMITATIONS AND DISTRICTS; CITIES AND TOWNS; ZONE REGULATIONS. Alberta, planning law, 510 note 27. Algeria, objects of historic and artistic interest, 432. See also BEAUTY, PROMOTION OF. Alien Structure, see NONCONFORMING STRUCTURES. Allegations, eminent domain pleading, 55-57. See also EMINENT DOMAIN. Allocation, land for particular uses, 504. See also DISTRICTS; LAND; USES; ZONING. Allowance, of compensation for land taken, see EMINENT DOMAIN; of encroachments, see ENCROACHMENTS. Sec also STREETS AND HIGHWAYS. INDEX 661 Alteration, charter, see CITIES AND TOWNS ; district lines, see DIS- TRICTS ; features referred to planning commission, see PLAN- NING COMMISSIONS; maps, see MAPS; nonconforming struc- tures, see NONCONFORMING STRUCTURES; nonconforming use, see NONCONFORMING USES; parks, see PARKS AND PARKWAYS; streets, see STREETS AND HIGHWAYS; zoning regulations, see ZONE REGULATIONS. Altona (Germany), bulk zoning ordinance, 212. Amendment, charter of public utility, see PUBLIC UTILITIES; consti- tution, see CONSTITUTIONAL AND STATUTORY PROVI- SIONS; New York City charter, see NEW YORK CITY; plan, see PLAN; zoning regulations, see ZONE REGULATIONS. Amenity, promotion, English Town Planning Act, 502, 505. See also BEAUTY, PROMOTION OF. American City Planning Institute, scope of city planning, I note 2. See also PLANNING. American Rule, encroachments on mapped streets, 30. See also EN- CROACHMENTS; STREETS AND HIGHWAYS. Amortization, self-supporting municipal enterprises, payments deducted from debt limit, 361. See also CITIES AND TOWNS. Amount, benefit assessments, see BENEFIT ASSESSMENTS; com- pensation, eminent domain, see EMINENT DOMAIN. Amusement Grounds, see PARKS AND PARKWAYS. "Ancient Monuments," definition (England), 440; outdoor advertising (England), 440. See also BEAUTY, PROMOTION OF; OUT- DOOR ADVERTISING. Ancient Monuments Consolidation and Amendment Act, 1913 (Eng- land), 432-44I- Andrews, Judge (N. Y.), police power, 18. Anticipation, of city problems, i note 2. See also CITIES AND TOWNS. Apartment Houses, see RESIDENTIAL USES AND DISTRICTS. Appeal, to U. S. Supreme Court, effect of limitation of right on social reform, 24; from decision refusing permission to build on mapped street, 34 ; practice under New York zoning law, 296-297 ; practice in England generally, 506; practice under East Birmingham (Eng- land) scheme, 508-509 note 20; quick hearing and decision essen- tial, 569; presumption of reasonableness of zoning regulation, 572 note 52; presumption of correctness of decision appealed from, 575. See also ADMINISTRATION; ENCROACHMENTS; STREETS AND HIGHWAYS; ZONE REGULATIONS. Appeals, Boards of, see BOARDS OF APPEALS. Application, of zoning to existing conditions, 205 note 14 (7) (8). See also ZONING. Appointment, art commissions, see BEAUTY, PROMOTION OF; plan- ning commissions, see PLANNING COMMISSIONS. Appropriation, for artistic purposes, see BEAUTY, PROMOTION OF; for public use, see EMINENT DOMAIN. Approval, of plan, see PLAN ; of plats, see PLATS ; of private develop- ment plan by city before recording, 32; of subdivision, see SUB- DIVISIONS. Arbitrariness, in zoning, 205 note 14 (8). See also ZONING. Architectural Requirements, (Prussia), 473; Saxony, 490. See also BEAUTY, PROMOTION OF. Area of Assessment, benefit assessments, 367-369. See also BENEFIT ASSESSMENTS; LANDOWNERS. 662 INDEX AREA LIMITATIONS AND DISTRICTS: i. In General; a. Laws and Ordinances; 3. Area Units and Districts; 4. Buildings; 5. Families per Unit; 6. Rear Lands and Yards. Cross-references: ENGLAND (5) ; GERMANY (5) ; NEW YORK CITY (6); ORDINANCES (i); RECOMMENDATIONS AND SUGGESTED REFORMS (8); RESIDENTIAL USES AND DISTRICTS (2). i. In General: definition, examples, effect on land values, 197, 209; history (England), 498; compensation to landowner (England), 509. a. Laws and Ordinances: Germany, 224-225; Frankfort, 230 (sec. 10), 245-246 (sec. 7), 262 (No. i); Diisseldorf, 253, 256-258, 261; Cologne, 262 (No. 2) ; Karlsruhe, 263 (No. 3) ; Munich, 264 (No. 4); New York City, 270-271, 275-276; Alameda (Cal.), 347-349; Saxony, 458-459, 476-478, 491-4931 Prussia, 474; England, 500, 503, 504; Ontario, 513; Minnesota, 577. 3. Area Units and Districts: New York City, 268, 270-271, 314-319, 566; Milwaukee, 330-337; East Birmingham (England) scheme, 506 note 20. 4. Buildings: city planning may deal with area of, 5; area of, part of city plan, 27; number on acre (England), 503-504. 5. Families per Unit: number on area unit, 277. 6. Rear Lands and Yards: New York City, 317-318; Milwaukee. 330; Alameda (Cal.), 349; Saxony, 458-459, 476, 478. Area Zoning, constitutionality, 287. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; ZONING. Arsenals, see UNITED STATES. Art Censorship, avoidance of dangers, 406. See also BEAUTY, PRO- MOTION OF. Art Commissions, see BEAUTY, PROMOTION OF. Art Departments, see BEAUTY, PROMOTION OF. Art, Works of, see BEAUTY, PROMOTION OF. Artistic Places, see BEAUTY, PROMOTION OF. Assessments, Benefit, see BENEFIT ASSESSMENTS. Associations, see SOCIETIES. Attached Houses, see RESIDENTIAL USES AND DISTRICTS. Australia, debiting value of improvements in condemnation proceedings, 48 note 1 1 ; excess and zone condemnation, 73 and note 24 ; re- plotting, 84 note 67. See also EMINENT DOMAIN; EXCESS CONDEMNATION; REPLOTTING; SOUTH AUSTRALIA; ZONE CONDEMNATION. Austria, expropriation, 57 note 20; promotion of beauty. 400-402. See also EMINENT DOMAIN; BEAUTY, PROMOTION OF. Austro-Hungary, replotting, 87. See also REPLOTTING. Authorities, Planning, see ADMINISTRATION. Authority, zoning, necessity of express grant, 281 ; appointment of plan- ning commissions, special law or general powers, 554-5- Sec a ^ so PLANNING COMMISSIONS. 7<>\ING. Automobile Traffic, importance of setbacks at corners of traffic streets, 181. See also SETBACKS; STREETS AND HIGHWAYS. Automobiles, parking regulations. 183; traffic streets, 183. See also GARAGES; KISIDKNTIAL USES AND DISTRICTS; STREETS AND HIGHWAYS. Avoidance of debt limit, 3&z. See also CITIES AND TOWNS. Back Bay Cases (Boston), supporting theory of zone condemnation, 140. See also ZONE CONDEMNATION. INDEX 663 Bad Faith, improvements, no compensation, 69. See also EMINENT DOMAIN. Baden, replotting, 87, 105 and note 90; planning jurisdiction, 449; construction of planned streets, 461 ; restriction on building freedom, 461. See also ADMINISTRATION; REPLOTTING; STREETS AND HIGHWAYS; ZONE REGULATIONS. Baldwin, Chief Justice (Conn.), police power, 18 note 4. See also POLICE POWER. Baltimore, height limitations, 265 and note 4, 393 note 20. See also HEIGHT LIMITATIONS AND DISTRICTS. Bassett, E. M., building in bed of mapped street, proposed amendment to New York City charter, 35 note 16; principles of zoning, 204 note 14; function and importance of Boards of Appeals, 569-574. See also BOARDS OF APPEALS; STREETS AND HIGH- WAYS; ZONING. Battlefields, Quebec, purchase by Canada, 382 note 3 ; Gettysburg, taking constitutional, 385. See also BEAUTY, PROMOTION OF. Bavaria, expropriation, 57 note 20. See also EMINENT DOMAIN. Beaches, reservation for public use, 171. See also PARKS AND PARK- WAYS. BEAUTY, PROMOTION OF: i. In General; 2. Legislation; 3. Eminent Domain; ,4. Police Power; 5. Restrictions in Deeds; 6. Art Commissions; 7. Works of Art; 8. Building Designs; 9. Heights of Buildings; 10. Street and Building Lines; n. Artistic Places and Structures; 12. Historical Places and Structures. Cross-references: ADMINISTRATION (6); CONSTITU- TIONAL AND STATUTORY PROVISIONS (3, 5) ; EMINENT DOMAIN (2) ; ENGLAND (2, 6) ; EXCESS CONDEMNATION (6); FRANCE (4, 6); GERMANY (4); LAND (11) ; MASSA- CHUSETTS (i); NEW JERSEY (i, 2); NEW YORK (3); NEW YORK CITY (14); ORDINANCES (i) ; OUTDOOR ADVERTISING (5) ; PARKS AND PARKWAYS (5) ; PLAN- NING COMMISSIONS (i, 3) ; POLICE POWER (3) ; RECOM- MENDATIONS AND SUGGESTED REFORMS (15, 16, 19); RESIDENTIAL USES AND DISTRICTS (i) ; SETBACKS (i); STREETS AND HIGHWAYS (8); TAXATION (i) ; TRANSPORTATION (2, 7); UNITED STATES (2). 1. In General: function, 381. 2. Legislation: Washington, D. C, proposed law, 387 note 13 (at p. 388) ; Europe, 396 and note 23 ; Denmark, Italy, Japan, Portugal, Roumania, . Sweden and Switzerland, 396 note 24 ; France^ "classifi- cation," 396-399, 422-423 ; England, included under word "amenity, 1 399-400, 432-441, 502, 505; Germany, Switzerland and Austria, building regulation, 400-402; Germany, 1907 and thereafter, 403- 405. 3. Eminent Domain: taking under, 133, 382-390; excess condemnation in France, Switzerland and Belgium, 382 note 3; expropriation in England, 382 note 3; legality of taking, 390 note 15. 4. Police Power: regulation under, 204 note 14 (4), 391-395; consti- tutional amendments, 394-395 and note 22; regulations give no right to compensation (England), 509. 5. Restrictions in Deeds: beauty as basis for, supplementing zoning regulations, 205 note 14 (11). 6. Art Commissions: powers, duties, problems of administration, 563; appointment, power limited, qualifications, civil service, 564 note 41; 664 INDEX power to give advice only, or to control city action, 565 ; New York City Art Commission, 584-587 ; statutes tabulated, 638. See also infra this title, BUILDING DESIGNS. 7. Works of Art: protection (France), 396-399, 423-432; protection (Hesse and Wiirttemberg), 308 note 27; expropriation (Germany), 400 note 34; acceptance by city (N. J.), 580; acceptance and loca- tion subject to approval of Art Commission (New York City), 586; definition (New York statute), 586; within control of planning com- mission (Cleveland, O.)i 587. 8. Building Designs: German, French and English methods, 405-407; legislation to secure architectural harmony in localities (England), 439-440; disfigurement, prevention of (Prussia), 468; residences, regulations (Prussia), 473; when properly within commission's jurisdiction, 562; power of art commission, 565; public improve- ments, approval of planning commission, 577 ; public buildings, re- port by commission to city council (N. J.), 580; public buildings, approval by Art Commission (New York City), 586; control by planning commission (Cleveland, O.), 587. 9. Height of Buildings: Copley Square, Boston, Massachusetts deci- sion, 385-386. 10. Street and Building Lines: establishment, aesthetic requirements (Germany), 401. 11. Artistic Places and Structures: expropriation of scenic land (New Zealand), 382 note 3; preservation of scenic beauty along state high- ways (Ore.), 387 note 13 (at p. 388) ; appropriation of water fall for artistic purposes (Col.), 390 note 15; preservation (Germany), 4 3-405; outdoor advertising, regulations (England, France and Germany), 420-421; protection (France), 423-432; plans required (France), 515. 12. Historical Places and Structures: purchase of national battle- fields at Quebec by Canada, 382 note 3 ; taking of battlefield at Gettysburg by United States, 385; preservation (Germany), 403-405; plans required (France), 515. Belgium, protection of private property, 13 note I ; excess condemnation, 67 note 10, 79; zone condemnation, 79-80; influence of English hous- ing reforms, 80; excess condemnation to promote beauty, 382 note 3; self-imposed liability for damages to war sufferers, 514 n> See also BEAUTY, "PROMOTION OF; CONSTITUTIONAL AND STATUTORY PROVISIONS; DEVASTATED REGIONS: EXCESS CONDEMNATION; HOUSING; ZONE CONDEM- NATION. BENEFIT ASSESSMENTS: i. In General; 2. Legislation; 3. Pur- pose; 4. Limitations; 5. Payment; 6. Avoidance of Debt Limit. Cross-references: CITIES AND TOWNS (7); CONSTITU- TIONAL AND STATUTORY PROVISIONS (5): EV.LANM (ii): EXCESS CONDEMNATION (i) ; FRANCE (8); GER- MANY (10) ; LAND (7) ; NEW YORK (i) ; NEW YORK (MTV (3. 13); PARKS AND PARKWAYS (3); PUBLIC IMPROVE- MENTS (3); RECOMMENDATIONS AND SUGGESTED FORMS a 13, U); TRANSPORTATION (4); UNITED STATES (6). i. In General: use in United States and abroad, 358; history, 363-364. a. Legislation: Prussia, 455, 471-472; Saxony, 489-490; England, 505. Canada, 511. 3. Purpose: to pay cost of public improvements, 138, 371 and note 18; for construction of parks, 369-37' ', construction or extension of INDEX 665 public utilities, 372 note 20; construction of transit lines, 372 and notes 20-22. 4. Limitations: amount, 364; area of assessment, 367-369. 5. Payment: time of, in United States and Germany, 365-366; instal- ment plan, 365. 6. Avoidance of Debt Limit: by paying for improvements out of assessments, 362. Benefits, from improvements to part of land not taken, deduction, 48. See also BENEFIT ASSESSMENTS; EMINENT DOMAIN. Berlin, zoning ordinances, 216 and note 12. See also CITIES AND TOWNS; ZONE REGULATIONS. Betterments, see BENEFIT ASSESSMENTS. Bill Boards, see OUTDOOR ADVERTISING. Bill of Rights, state and federal constitutions, effect of duplications on acquisition of land by city, 45. See also CONSTITUTIONAL AND STATUTORY PROVISIONS. Birmingham (England) scheme, houses to acre, 503 note 13. See also EAST BIRMINGHAM. Blocks of Houses, see RESIDENTIAL USES AND DISTRICTS. Board of Estimate, see NEW YORK CITY. Board, Zoning, definition, 204 note 14. See also PLANNING COM- MISSIONS. BOARDS OF APPEALS: i. In General; 2. Statutory Authority; 3. .Powers; 4. Decisions. Cross-references: ADMINISTRATION (4); ORDINANCES (i); PLAN (7); RECOMMENDATIONS AND SUGGESTED REFORMS (20); ZONE REGULATIONS (2). 1. In General: function in enforcement of city plan, 37-39, 569. 2. Statutory Authority: necessity, 573. 3. Powers: allowance of exceptions to zoning regulations, 205 note J 4 ( J 3) J under zoning regulations, generally, 206 note 14 (18) ; dis- cretionary power in matter of garages and stables (New York City), 270; under New York law for zoning of cities, 295-298; under zoning law for New York City, 295 ; modification of regulations in case of hardship (New York City), 320; extent and limitations, 569- 575 ; conditional allowance of exceptions, 572 note 52. 4. Decisions: presumption on appeal in favor of correctness, 575. Bombay, planning law in part modeled on English act, 510 note 27; in- fluence of English act, see ENGLAND. Bonds, Municipal, financing excess condemnation, 132. See also CITIES AND TOWNS; EXCESS CONDEMNATION. Border Line Cases, exceptions to zoning regulations, function of Board of Appeals, 569. See also BOARDS OF APPEALS; ZONE REGULATIONS. Borrowing, Municipal, see CITIES AND TOWNS. Boston, Back Bay Cases, 140; height districts, 266 and note 6; height limitations, Copley Square, 385-387; height limitations, State House, 387 note 13 ; height limitations, Custom House, 536. See also HEIGHT LIMITATIONS AND DISTRICTS; ZONE CONDEM- NATION. Boulevards, water front, 171 ; lay out, legality, 383 ; outdoor advertising (England), 421. See also CONSTITUTIONAL AND STATU- TORY PROVISIONS; HARBORS AND WATER FRONT; OUTDOOR ADVERTISING; PARKS AND PARKWAYS. Boundaries, adjustment, East Birmingham (England) scheme, 508 note 20. See also LAND. 666 INDEX Boxes, unloading on streets, 175. See also STREETS AND HIGH- WAYS. Bridgeport (Conn.), appointment of planning commission under City's general powers, 555 note 21. See also CITIES AND TOWNS; PLANNING COMMISSIONS. Bridges, interstate or international planning, 9; over navigable waters, 171; over streets, 175; commission's jurisdiction generally, 561-2; commission's jurisdiction (New York), 583; commission's juris- diction (Cleveland. Ohio), 587. See also NAVIGABLE WATERS; PLANNING; PLANNING COMMISSIONS; STREETS AND HIGHWAYS. British Empire, see specific headings, ENGLAND, CANADA, etc. Bronx River Parkway, establishment, 383 note 7. See also PARKS AND PARKWAYS. Bronx River Parkway Commission, report, small streams menace to public health, 33 note 7. See also PLANNING COMMIS- SIONS. Brookline (Mass.), financial results to town of setbacks, 182. See also SETBACKS. Brooklyn (N. Y.), height limitations, 275. See also HEIGHT LIMI- TATIONS AND DISTRICTS. Brotterode (Germany), replotting after fire, 86. See also REPLOT- TING. Building Codes, relation to city planning, 5. See also BUILDING REGULATIONS; PLANNING. Building Designs, preservation of character of special localities, German, French and English methods, 405-407. See also BEAUTY, PRO- MOTION OF. Building Development, borrowing by city, debt limit, 361 ; restrictions (Prussia), 455-457; Saxon planning law, 457; restrictions (Germany), 460-461; restrictions (Sweden), 462; plan requirements (France), 515, 517. See also CITIES AND TOWNS; PLAN; PLANNING. Building Land, see LAND. Building Law (Zurich, 1893), replotting, 86; distinguished from zoning law, 205 note 14 (12); Saxony (1000), 474-495. See also PLAN- NING; REPLOTTING; ZONING. Building Lines, see SETBACKS. Building Permits, Milwaukee, 338; Alameda (Cal.), 353; aesthetic re- quirements (Germany), 402; requirement after adoption of pl.t- (Prussia), 453; undeveloped areas (Prussia), 455-457; unpl;um< BEAUTY, PROMOTION OF; CONSTITUTIONAL AND STATUTORY PROVISIONS; LAND; PLAN. Building Plans, revision by Bureaus of Building Advice (Germany), 406 and note 54. See also ZONE REGULATION'S Building Police, Germany, 406, 451. See also GERMANY. Building Regulations, general discussion, 5 ; check to congested areas, 12; method of enforcing city plan, 29; definition, 191; retroactive. 101 ; "graduated" (Germany), 212, 216; architecture (Quebec), .vi- note 16; promotion of beauty (Germany, Switzerland and An 400-402; Prussia, 452; Saxony, 477. 400-405; England. 503-504. See also AREA LIMITAT! D DISTRICTS: HKAl'TY, PRO MOTION' OF; r.ril.niNV, CODES; CoNSTITfTIoXAI. STATTTORY PROVISK' \: X)\R REGULATIONS. Building Zone Resolution (New York City), 305-323. See also TRICTS; ZONINC INDEX 667 Buildings, height limitations around public building or square, 15; height area and use, part of city plan, 27; number of stories, restriction (Germany), 224; subsidiary in rear (Frankfort), 229 (sec. 8); completion and restoration (New York City), 322-323; regulation about municipal centers (Saskatchewan), 392 note 16; definition (Saxony), 474; reconstruction after catastrophe (Saxony), 475; character (Saxony), 476; construction after adoption of plan, compensation (Saxony), 480; number to acre (England), 503-504; commission's powers, 561-2. See also EMINENT DOMAIN; ENCROACHMENTS; HEIGHT LIMITATIONS AND DIS- TRICTS; NONCONFORMING BULKS; NONCONFORMING STRUCTURES; NONCONFORMING USES; PLANNING COMMISSIONS; PUBLIC BUILDINGS; TALL BUILDINGS; REPLOTTING; USE LIMITATIONS AND DISTRICTS; ZONE REGULATIONS. BULK ZONING AND REGULATIONS: i. In General; 2. His- tory and Development; 3. Application to City; 4. Legality; 5. Effect. Cross-references: BEAUTY, PROMOTION OF (9); CONSTI- TUTIONAL AND STATUTORY PROVISIONS (5) ; ENG- LAND (5) ; GERMANY (5) ; HEIGHT LIMITATIONS AND DISTRICTS (2, 3); LAND (n) ; MASSACHUSETTS (5); NEW YORK CITY (6, 9); ORDINANCES (i) ; RECOM- MENDATIONS AND SUGGESTED REFORMS (8) ; RESIDENTIAL USES AND DISTRICTS (2) ; SET- BACKS (i). 1. In General: definition, purpose and relation to the city plan, 193, 197 ; necessity for, 198. 2. History and Development: Germany, 211-213; from large to smaller districts (Germany), 216; England, 218 and note 16; New York City, 268, 275-276. 3. Application to City: different for different parts of city, 198; according to types of houses (Germany), 217 note 14. 4. Legality: sustained by courts (Germany), 216; constitutionality (United States), 287. 5. Effect: relation to fire hazard, anaemia, disease, accident and juvenile delinquency, 195 ; land values, 195, 209. Bulkhead Lines, see HARBORS AND WATER TFRONT. Bulkheads, elevator (New York City), 270. See also ZONE REGULA- TIONS. Burden of Proof, on one denying constitutionality of statute, 21-22. See also CONSTITUTIONAL AND STATUTORY PROVISIONS. Bureau of Building Advice, revision of building plans (Germany), 406 and note 54. See also STATES. Bureau of Municipalities, information and advice (Penn.), 604-5. See also STATES. Business, transacting on streets, whether a legal street use, 176; exclusion from residence districts. 268, 288; segregation (Cal. and Ore.), 566 note 43. See also RESIDENTIAL USES AND DISTRICTS; f STREETS AND HIGHWAYS. Business Streets, suburban, setbacks, 179; central, setbacks, 181. See m also SETBACKS; STREETS AND HIGHWAYS. Business Structures, exclusion about parks (St. Louis), 387 note 13 (at p. 388) ; classification under zoning regulations, outdoor advertising, 418. See also OUTDOOR ADVERTISING; PARKS AND PARKWAYS: ZONE REGULATIONS. 668 INDEX BUSINESS USES AND DISTRICTS: i. In General; 2. Legisla- tion; 3. Uses Permitted and Excluded; 4. Legality. Cross-references: PARKS AND PARKWAYS (5); RESIDEN- TIAL USES AND DISTRICTS (9, 12) ; SETBACKS (4) ; USE LIMITATIONS AND DISTRICTS (3). 1. In General: zoning regulations in general, 203, 205 note 14 (13). 2. Legislation: Frankfort, 215; New York City, 268, 307-309; Alameda (Cal.), 341-344- 3. Uses Permitted and Excluded: New York City, 268-269; garages (Xew York City), 269-270 and note 13; Milwaukee, 326. 4. Legality: judicial decisions, 286; exclusion of manufacturing, 287 and note 36. California, state planning of capital city, 544 and note 10; expert assist- ance to local communities, 553 note 18; commissions with advisory powers only, 558 note 26; segregation of business, trade, or callings, 566 note 43; Capital City Planning Law, 603-4. See also BUSI- NESS USES AND DISTRICTS; PLANNING; PLANNING COMMISSIONS; STATES; ZONE REGULATIONS. Callings, segregation (Cal. and Ore.), 566 note 43. See also BUSINESS USES AND DISTRICTS. Canada, city plan, enforcement, 30; city development, control, 41; debit- ing value of improvement, condemnation proceedings, 48 note n; excess condemnation, statutes, 67 note 10; excess and zone con- demnation, 73 and note 24 ; replotting, statutes, 84 note 67 ; zoning, 211, 265; self-supporting municipal enterprises, debt limit, 361 note 3; benefit assessments, 364; benefit assessments, public utilities, 372 note 20 ; battlefields at Quebec, purchase, 382 note 3 ; shade tree planting, legality, 383 note 6; promotion of beauty under police power, legality, 392 note 16; proposed planning law, 510-513; investi- gation and advice, 542; supervision of local planning, 551. See also BEAUTY, PROMOTION OF; BENEFIT ASSESSMENTS; CITIES AND TOWNS; CONSTITUTIONAL AND STATU- TORY PROVISIONS; EMINENT DOMAIN; EXCESS CON- DEMNATION; PLAN; POLICE POWER; REPLOTTING; STATE; ZONE CONDEMNATION; ZONING. Canals, condemnation of land (Prussia), 61 note i. See also EMINENT DOMAIN. Cancellation, of subdivision, see SUBDIVISIONS. Capital, railroad, reasonable return, 164; tax, effect on land development, 366. See also LAND; TAXATION; TRANSPORTATION. Capital City Planning Act, California, 603-4. See also PLANNING. Cases, see DECISIONS. Catastrophes, replotting, 86; plan for reconstruction (Prussia), 453; plan for reconstruction (Saxony), 475; plan for reconstruction (France), 515, 530. See also PLAN; REPLOTTING. Censorship, artistic, dangers avoided (Germany), 406. See also i TV. PROMOTION OF. Central Business Streets, setbacks, 181. See also SETBACKS; STREETS AND HIGHWAYS. Central Park, establishment, &s. See also BEAUTY, PROMOTION "I-; PARKS AND PARKWAYS. Certificate of Occupancy, New York City. 321; Milwaukee, 338- Ala- .tl.), 352. See also USE LIMITATIONS AND DIS- TRICTS. INDEX 669 Certiorari, review of proceedings on appeal (New York). 297. See also APPKALS Changes, charter, see PUBLIC UTILITIES; district, see DISTRICTS; nonconforming use, see NONCONFORMING USES; zoning regu- lations, see ZONE REGULATIONS. Character of Neighborhood, effect of use zoning, 200; zoning in built- up districts, 202; preservation (Germany), 405. See also DIS- TRICTS; USE ZONING; ZONING. Charter of New York City, proposed amendment, building in bed of mapped street, 35 note 16; powers to create single family house districts, 275 note 21. See also CITIES AND TOWNS; NEW YORK CITY; RESIDENTIAL USES AND DISTRICTS; STREETS AND HIGHWAYS. Charter of Public Utility, amendment as method of control, 162, 163; rights generally, 163; grant to competing utility, 166; expiration, competing utilities, 168. See also PUBLIC UTILITIES. Chesterfield (England), scheme, houses to acre, 503 note 15. See also AREA LIMITATIONS AND DISTRICTS. Chesterton, G. K., lights on Broadway, 408 note 60. See also BEAUTY, PROMOTION OF; OUTDOOR ADVERTISING. Chicago, tenement houses, fire regulations, 192; congestion in the Loop, lack of regulation, 194. See also RESIDENTIAL USES AND DISTRICTS; ZONE REGULATIONS. Chimneys, zoning regulations (New' York City), 270. See also ZONE REGULATIONS. Chinese Quarters, see RACIAL ZONING. See also ZONING. CITIES AND TOWNS: i. Planning Authority in General; 2. Par- ticular Powers; 3. City Council; 4. City Officials; 5. Control over Development; 6. Municipal Borrowing; 7. Avoidance of Debt Limit; 8. Particular Cities and Towns. Cross-references: ADMINISTRATION (3); BEAUTY, PRO- MOTION OF (6, 7, 8) ; BENEFIT ASSESSMENTS (6) ; BULK ZONING (3) ; CONSTITUTIONAL AND STATUTORY PRO- VISIONS (4, 5) ; EMINENT DOMAIN (i, 6) ; ENGLAND (3) ; EXCESS CONDEMNATION (6, 7, 9) ; FRANCE (2) ; GERMANY (5, 8, 9) ; HARBORS AND WATER FRONT (2) ; LAND (i, 3,8, 10) ; LANDOWNERS (2, 3) ; MASSACHUSETTS (2); NEW JERSEY (i) ; NEW YORK CITY (3, 5) ; ORDI- NANCES (i, 2); PLAN (2, 3, 5); PLANNING (2, 3, 6, 8, 10, ii, 13) ; PLANNING COMMISSIONS (2, 3) ; PUBLIC IM- PROVEMENTS (3) ; PUBLIC UTILITIES (i, 2); RECOM- MENDATIONS AND SUGGESTED REFORMS (13, 14, 18, 19); RESIDENTIAL USES AND DISTRICTS (i, 3, 4, 12); SET- BACKS (i); STATES (2, 3, 4); STREETS AND HIGHWAYS (9) ; TAXATION (i, 3) ; TRANSPORTATION (i, 3, 4, 5, 7, 8) ; UNITED STATES (i) ; UNITED STATES GOVERNMENT (i); USE LIMITATIONS AND DISTRICTS (i) ; ZONE REGULATIONS (i, 3); ZONING (i). i. Planning Authority in General: power to make zoning regulations, grant by state, 205 note 14 (5) ; power to zone, necessity of specific authorization, 281; local self-government (Germany), 448-451; local self-government (Saxony), 457-459, 475; local self-government (England), 501; local self-government (Canada), 511; formulation of plan mandatory (France), 515; local self-government, grant by United States outside state limits, 535; grant by state, 543; detailed planning, proper city function, 544-545. 670 INDEX 2. Particular Powers: excess condemnation, 130-131; control of trans- portation company's rates and facilities, 164-166; control of trans- portation company's routes and location, 164; acceptance of gifts, 56.5. 3. City Council: division of power and responsibility with planning commission, 559; power to over-ride recommendations of planning commission, 559; action controlled by planning commission, 559- 560; power to act on city plan reported by commission, 567. 4. City Officials: as members of planning commissions, 557. 5. Control over Development: method followed in Germany, 39-40; laissez faire method in United States, 40; method followed in Can- ada, 41; land requirements, 43; excess condemnation, 139; relation to possible regional planning by United States, 541 ; extension into undeveloped areas, 546; extension of planning jurisdiction beyond city limits, usual method criticised, 546. 6. Municipal Borrowing: necessity, purpose, sinking fund provisions, 359-36o; method in United States to control excessive borrowing, 360-361. 7. Avoidance of Debt Limit: excess condemnation, 132; self-support- ing municipal enterprises, 361 and note 3; borrowing for building development, 361 ; payment for improvements out of income, 30.2 ; benefit assessments, 362. 8. Particular Cities and Towns: See the following specific headings: Alameda (Cal.) ; Alberta; Altona (Germany); Baltimore; Merlin (Germany); Bombay; Boston (Mass.); Bridgeport (Conn.); Brookline (Mass.) ; Brooklyn (N. Y.) ; Brotterode (Germany) ; Chicago; Cleveland (Ohio) ; Cologne (Germany) ; Dresden (Ger- many) ; Diisseldorf (Germany) ; East Birmingham (England) ; East Cleveland (Ohio) ; Edmonton (Canada) ; Elizabeth (N. J.) ; Frankfort-on-the-Main (Germany) ; Halifax (Nova Scotia) ; Ham- burg (Germany) ; Hampstead (England) ; Hartford (Conn.) ; Hildesheim (Germany); Indianapolis; Jerusalem; Kansas City; Karlsruhe (Germany) ; Los Angeles (Cal.) ; Madras (India) ; Mil- waukee (Wise,) ; Minneapolis (Minn.) ; Munich (Germany) ; Newark (N. J.) ; Paris; Philadelphia; Providence (R. I.); Quebec; Ruislip Nortnwood (England); St. John (N. B.) ; St. Louis; Saloniki (Greece) ; Schenectady (N. Y.) ; Stuttgart (Germany) ; Szegadin (Hungary); Toronto (Canada); Vienna; Washington (D. C.) ; White Plains (N. Y.) ; Windsor (Conn.); Worcester (Mass.); Wiirttemberg (Germany) ; Zurich (Switzerland). Citizens, see LANDOWNERS. City and Village Planning Law, New York, 581-4. See also CON- S I ITUTIONAL AND STATUTORY PROVISIONS. City Attorney, membership on planning commission, 557. See also PLANNING COMMISSIONS. City Club of New York, pamphlet "Protecting the Future of New York," 275 note 22; advocacy of semi-residential use district (New York), 278 note 28; suggestions for port zoning (New York), 2"K note jS; report on increase in land values from subway construction ( New York), 372 and note 22. See also CITIES AND To\YNS; HAR- BORS AND WATER FR( > \l>: RESIDENTIAL USES !> TRICTS; TR.\NS1' iRTATION. City Council, see ( 'IT IKS AND TOWNS. City Development, see (ITU'S AND TOWNS. City Limits, see (! M> TOWNS. City Officials, see CIT. i) TOWNS. INDEX 671 City Plan, see PLAN. City Planning, see PLANNING. City Planning Institute, see AMERICAN CITY PLANNING INSTI- TUTE. Civic Beauty, see BEAUTY, PROMOTION OF. Civil Service, art commissions, 565 note 41. See also BEAUTY, PRO- MOTION OF. Classes, division of city (Diisseldorf), 255. See also ZONING. "Classification" of historic and artistic objects and places (France), 396- 399, 423, 424-431. See also BEAUTY, PROMOTION OF. Classification (District), elaborate on Pacific coast, 291 ; change in (Alameda, Cal.), 343, 353-354- See also DISTRICTS; RECLASSI- FICATION. Classification of Land, residential and agricultural (Canada), 41; rural, suburban and urban (Philadelphia), 42 note 21. See also LAND. Classification Yards, proposed port zoning (New York), 278 note 28. See also HARBORS AND WATER FRONT. Cleveland (Ohio), setbacks, 280 note 31 ; exclusion of tenement houses from one and two family residence districts, 288; Board of Appeals, hardship cases, 572 note 52 ; charter and ordinance, planning provi- sions, 587. See also BOARDS OF APPEALS; CITIES AND TOWNS; CONSTITUTIONAL AND STATUTORY PROVI- SIONS; RESIDENTIAL USES AND DISTRICTS; SETBACKS. Clinton Avenue Case (N. Y.), park strips along highways, legality, 390 note 15. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; DECISIONS. See also PARKS AND PARK- WAYS. Club Houses, location (Cal. and Ore.), 566 note 43. See also RESI- DENTIAL USES AND DISTRICTS. Codes, Building, relation to city planning, 5. See also BUILDING REGULATIONS; PLANNING. Cologne, zoning provisions, 262 (No. 2). See also CITIES AND TOWNS; ZONE REGULATIONS. Colorado, appropriation of waterfall for artistic purposes, 390 note 15. See also BEAUTY, PROMOTION OF; EMINENT DOMAIN. Combination, of art and planning commissions, 565. See also BEAUTY, PROMOTION OF; PLANNING COMMISSIONS; RECOM- MENDATIONS AND SUGGESTED REFORMS. Commerce, Foreign, federal control basis of U. S. planning power, 536- 541. See also UNITED STATES GOVERNMENT. Commerce, Interstate, see UNITED STATES GOVERNMENT. Commercial Districts, uses prohibited (Milwaukee), 327. See also BUSINESS USES AND DISTRICTS; DISTRICTS; USES. Commissioners from Sweden, to Interallied Conference, report on plan- ning and housing in Sweden, 463 note 29. See also HOUSING; PLANNING. Commission, condemnation proceedings, criticism, 53-54- See also EMI- NENT DOMAIN; RECOMMENDATIONS AND SUGGESTED REFORMS. Commissions, art, see BEAUTY, PROMOTION OF; homestead, expert assistance to local communities, 553 note 18; planning, see PLAN- NING COMMISSIONS. Committee on City Plan (New York City), setbacks in business and traffic streets, 180. See also SETBACKS; STREETS AND HIGHWAYS. "Common Courts," definition, Diisseldorf ordinance, 252. 672 INDEX "Common Side Setback Spaces," definition, Diisseldorf ordinance, 252. See also SETBACKS. Commons, confirmation of use by Parliament (England), 526-527. See also LAND; USES. Communes, street plans (Italy), 445; planning jurisdiction (Germany), 448-451; expropriation (Prussia), 455; department of Seine, formu- lation of plans (France), 515. See also ADMINISTRATION; CONSTITUTIONAL AND STATUTORY PROVISIONS; EMINENT DOMAIN; PLAN; STREETS AND HIGHWAYS. Commutation, rates, 165. See also TRANSPORTATION. Compensation, condemnation of slum areas (England), 74, 75; replotting under Lex Adickes (Frankfort), in, 112; franchises of transpor- tation companies, 168; service on planning commission (Minne- apolis), 577; eminent domain, see EMINENT DOMAIN. See also PLANNING COMMISSIONS; PUBLIC UTILITIES; RECOM- MENDATIONS AND SUGGESTED REFORMS; REPLOT- TING; TRANSPORTATION; ZONE CONDEMNATION. Competing Utilities, expiration of franchises at same time, 168. See also I'lT.LIC UTILITIES; RECOMMENDATIONS AND SUG- GESTED REFORMS. Competition, threat as method of control of public utilities, 162; public utilities, wasteful, 166. See also PUBLIC UTILITIES; RECOM- MENDATIONS AND SUGGESTED REFORMS. Completion of Existing Buildings, New York City zoning resolution, 322-323. See also NEW YORK CITY; ZONE REGULATIONS. Compulsory Joint Improvements, police power, analogous to replotting, 143, 144, 146. See also REPLOTTING. Compulsory Replotting, police power, 63, 64; Lex Adickes, 107. See also LEX ADICKES; POLICE POWER; REPLOTTING. Concessions, demand from public utility as method of control, 162-163. See also PUBLIC UTILITIES. Condemnation, generally, see EMINENT DOMAIN; excess, see EX- CESS CONDEMNATION; zone, see ZONE CONDEMNATION. Conditions, local, as affecting police power and power of eminent domain, 20; allowing exceptions, power of Board of Appeals to impose, 572 note 52. See also BOARDS OF APPEALS; EMINENT DO- MAIN; POLICE POWER; ZONE REGULATIONS. Conduits, grant of powers to commission, 561-2. See also PLANNING COMMISSIONS. Conflict, local plans and plans of proposed Metropolitan Planning Board, (Mass.), 591. See also PLAN. Conformity, to city plan, enforcement, 28. See also PLAN. Congested Areas, building regulations as remedy, 12. See also ZONE REGULATIONS. Congested Quarters, reason for zoning regulations, 204 note 14 (4). Sec also ZONE REGULATIONS. Connecticut, protection of mapped streets, purchase of options in land, 31 note 8; protection of city plan, permit required, 36 note 17; excess condemnation, 130 note 15 ; height of buildings about State Capitol, 387 note 13; taxation of outdoor advertising, 411 note 63; planning and park boards, consolidation. 562 note 35. See also EXCESS CONDEMNATION; HEIGHT LIMITATIONS AND DISTRICTS; LAND; OUTDOOR ADVERTISING; PLAN; PLANNING COMMISSIONS; RECOMMENDATIONS AND SUGGESTED REFORMS; STREETS AND HIGHWAYS; TAXATION. INDEX 673 Consent of Art Commissions, necessary to city action, 565. See also BEAUTY, PROMOTION OF. Consent of City, location of public utilities, 29; location of improve- ments in mapped streets, 34. See also PUBLIC UTILITIES; STREETS AND HIGHWAYS. Consent of Landowners, acquisition of land by city, 57 note 20; use zoning, 266 and note 8. See also CITIES AND TOWNS; EMI- NENT DOMAIN; LAND; USE ZONING. Conservation of Resources, function of state planning, 8. See also PLANNING. Consolidation, planning and park boards, 562. See also PARKS AND PARKWAYS; PLANNING COMMISSIONS; RECOMMENDA- TIONS AND SUGGESTED REFORMS. CONSTITUTIONAL AND STATUTORY PROVISIONS: i. In General; 2. Constitutional Guaranties; 3. Constitutional Amendments; 4. General Planning Laws; 5. Laws on Specific Subjects; 6. Mandatory Statutes; 7. Permissive Statutes; 8. Constitutionality of Statutes in General; 9. Constitutionality of Particular Statutes. Cross-references : ADMINISTRATION (3) ; AREA LIMITA- TIONS AND DISTRICTS (2); BEAUTY, PROMOTION OF (2, 4, 6) ; BENEFIT ASSESSMENTS (2) ; BOARDS OF AP- PEALS (2); BULK ZONING (4); BUSINESS USES AND DISTRICTS (2); CITIES AND TOWNS (i) ; EMINENT DO- MAIN (7) ; ENGLAND (2, 8, 10) ; EXCESS CONDEMNATION (3, 4, 5, 6) ; FRANCE (i, 2) ; GERMANY (2, 4, 9) ; LAND (8, 10) ; MASSACHUSETTS (i, 2, 8) ; NEW JERSEY (i, 3) ; NEW YORK (i, 2, 4) ; NEW YORK CITY (2, 7, 8, 14) ; ORDINANCES (i); OUTDOOR ADVERTISING (2, 3, 5); PARKS AND PARKWAYS (10) ; PLAN (2, 3, 7) ; PLANNING (2, 3, 4, 7, 11) ; PLANNING COMMISSIONS (i, 4); POLICE POWER (i, 3, 5); RECOMMENDATIONS AND SUGGESTED REFORMS (3, 7, 12, 14, 20) ; REPLOTTING (2) ; RESIDENTIAL USES AND DISTRICTS (3, 9, 10, 11) ; SETBACKS (2, 3); STATES (i, 2); STREETS AND HIGHWAYS (i, 7); TAXATION (4, 9); TRANSPORTATION (i) ; UNITED STATES (4, 5); UNITED STATES GOVERNMENT (i, 3, 4); USE LIMITA- TIONS AND DISTRICTS (3); ZONE CONDEMNATION (2); ZONE REGULATIONS (2); ZONING (2). 1. In General: constitutional limitations on planning power in United States, 535. 2. Constitutional Guaranties: private property rights, 13-14, 45; pro- visions protecting property rights, duplication in federal and state constitutions, 45. 3. Constitutional Amendments: effect on police power, 18; authoriz- ing excess condemnation (Mass., N. Y., Ohio, R. I., Wise.,), 131, 148-149; authorizing systematic zoning laws (Mass.), 289, 293; authorizing use of police power for aesthetic purposes, 394-395 ; authorizing regulation of advertising in public places (Mass.), 395 and note 22 ; regulation of private property under police power to promote beauty, proposed form, 395 note 22 (at p. 396). 4. General Planning Laws: Town Planning Acts (Canada), 265; zoning (New York City), 293-295; zoning law for cities (New Jersey), 298-301; zoning law (District of Columbia), 301-304; Prus- sian planning law of 1875 as amended in 1918, 451-457. 5. Laws on Specific Subjects: (Beauty, Promotion of), Europe, 396 674 INDEX and note 23; England, 399-400; Germany, 403-405; France, 422-423; (Benefit Assessments), construction of transit lines (New York), 372 note 22; (Excess Acquisition), authorizing or compelling, 64; (Excess Condemnation), New Jersey, 149; Ohio, 151; Oregon, 151; Virginia, 152; Massachusetts, 153; New York, 153; Rhode Island, 159; (Public Utilities), amendment or repeal of charters, 163; (Residence Districts), exclusion of business and tenements as part of systematic zoning (Mass.), 289; general and special provisions excluding uses from districts, proper framing, 268 note u; (Sanita- tion of Cities), France. 76; (Setbacks), New York City, 180 note 7. 6. Mandatory Statutes: England, 409, 501, 527; Canada, 511; France, 409 note 3, 515. 529. 5335 Pennsylvania, 588. 7. Permissive Statutes: advantages, 555; zoning statutes generally permissive, 566 and note 43 ; New Jersey, 578. 8. Constitutionality of Statutes in General: real issue in trial, 21; presumption and burden of proof, 21, 22. 9. Constitutionality of Particular Statutes: excess condemnation, 132-138; replotting, 142; setbacks, 183; zoning regulations, 281-292; race or color zoning, 287 note 34; height zoning, 287 and note 35- Construction, under plan, essential provisions of a planning law, 444. See also CONSTITUTIONAL AND STATUTORY PROVI- SIONS. Construction, Cost of, of parks, see PARKS ; of public improvements, see PUBLIC IMPROVEMENTS; of public utilities, see PUBLIC UTILITIES; of streets, see STREETS AND HIGHWAYS; of transit lines, see TRANSPORTATION. Construction, Rules of, New York City zoning resolution, 320; Alameda (Cal.) ordinance. 352. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; ZONE REGULATIONS. Content, city plan, see PLAN. Contracts, between city and owners, replotting (Lex Adickes), 108, 109, 123-127; between city and owners, cost of streets (Wiirttemberg and Baden), 462; between city and owners of agricultural lands as to taxes, extension of city limits, 546; between city and transportation company, reason against long term, 166 note 7; between city and transportation companies, service at cost, 166 and note 6. See also CITIES AND TOWNS; LANDS; LANDOWNERS; LEX ADICKES; PUBLIC IMPROVEMENTS; REPLOTTING; TRANSPORTATION. Control, city development, generally, 39; city development by excess condemnation, 139; public utilities, methods enumerated, 162; trans- portation company's routes and location, 164; transportation com- pany's rates and facilities, 164-166; tall building peril by zoning, 196; municipal loans (Europe), 360; outdoor advertising, 408-411; building in undeveloped areas (Prussia), 455-457; local action by state (Saxony), 459; interstate and foreign commerce by U. S., planning power incident to, 536-541 ; city action by planning com- mission, disadvantages if absolute, 559-560. See also ADMINIS- TRATION; AREA LIMITATIONS AND DISTRICTS: BUSI- NESS USES AND DISTRICTS; CITIES AND Tn\v\S CESS CONDEMNATION; HEIGHT LIMIT \THWS AND DISTRICTS; OUTDOOR ADVERTISING; PLANNING MISSIONS; PUBLIC UTILITIES; STATES; TRANSPORTA- TION; UNITED STATES GOVERNMENT; ZONING; ZONE REGULATIONS. INDEX 675 Cooperation, national, state and local planning agencies, 9. See also PLANNING COMMISSIONS; STATES; UNITED STATES GOVERNMENT. Copley Square Case, limitation of height of buildings (Mass.), 385-386. See also BEAUTY, PROMOTION OF; HEIGHT LIMITA- TIONS AND DISTRICTS. Corners, on traffic streets, importance of setbacks, 181 ; traffic police, regulations, 183. See also POLICE POWER; SETBACKS; STREETS AND HIGHWAYS. Cornices, New York City, 270. See also ZONE REGULATIONS. Corporations, housing, power to expropriate (Holland), 496; land de- velopments, plans required (France), 515, 533. See also CON- STITUTIONAL AND STATUTORY PROVISIONS; EMI- NENT DOMAIN; HOUSING; PLAN. Correction, nonconformity in structures, 201-204, 206 note 14 (14) ; New York's mistakes in zoning, by other cities, 273. See also NEW YORK CITY; NONCONFORMING BULKS; NONCONFORM- ING USES; ZONING. Cost, of construction of public utilities, see PUBLIC UTILITIES; of land required by city, see EMINENT DOMAIN ; of parks, see PARKS AND PARKWAYS; of plan, see PLAN; of public im- provements, see PUBLIC IMPROVEMENTS; of setbacks to city, see SETBACKS; of streets, see STREETS AND HIGHWAYS; of transit lines, see TRANSPORTATION. See also EXPENSES. Counties, see following specific headings: ESSEX COUNTY (N. J.) ; WESTCHESTER COUNTY (N. Y.). COUNTRIES, see following specific headings: ALGERIA; AUS- TRALIA; AUSTRIA; AUSTRO-HUNGARY; BELGIUM; CANADA; DENMARK; ENGLAND; FRANCE; GERMANY; HOLLAND; INDIA; IRELAND; ITALY; JAPAN; NEW ZEALAND; PORTUGAL; PRUSSIA; QUEENSLAND; ROU- MANIA; SCOTLAND; SOUTH AUSTRALIA; SWEDEN; SWITZERLAND; WALES. Country Planning, see PLANNING. County Government, grant of planning power, 547. See also PLAN- NING; RECOMMENDATIONS AND SUGGESTED REFORMS. County Planning, see PLANNING. County Planning Act, New Jersey, 603. Court Yards, New York City, 318-319; Milwaukee, 330; Alameda (Cal.), 349; Saxony, 478. See also AREA LIMITATIONS AND DIS- TRICTS; ZONE REGULATIONS. Courts, function and power in determining validity of statute, 21, 22; decisions, see DECISIONS. See also CONSTITUTIONAL AND STATUTORY PROVISIONS. Cow Districts, Los Angeles, 267 note 9. See also DISTRICTS. Cripps, benefit assessments in England, 48 note u. See also BENEFIT ASSESSMENTS. Criticisms, procedure in condemnation proceedings, 50-51 ; commission form of tribunal, condemnation proceedings, 53-54! term "excess condemnation," 59 ; English methods of slum removal, 82, 83 ; gridiron system street pfenning, 142; New York City zoning, 273; industrial district in New York City, 273 ; residential district in New York City, 273-274 and note IQ; bulk regulations in New York City, 275- 276; exclusion of residences from heavy industrial districts, 277; discretionary power of officials in administering zoning regulations, 279; decisions declaring exclusion of business from residential 676 INDEX districts unconstitutional, 288; German methods of increment taxa- tion, 374; practice of extending city planning jurisdiction beyond city limits, 546. See also ADMINISTRATION; BULK ZONING; EMINENT DOMAIN; EXCESS CONDEMNATION; INDUS- TRIAL USES AND DISTRICTS; NEW YORK CITY; PLAN- NING; RECOMMENDATIONS AND SUGGESTED REFORMS; RESIDENTIAL USES AND DISTRICTS; STREETS AND HIGHWAYS; TAXATION; ZONE CONDEMNATION; ZONE REGULATIONS; ZONING. Cross Act, condemnation of unhealthy areas (England), 81, 82. See also ZONE CONDEMNATION. Custom, see USAGE. Custom House, Boston, height limitations, exemption, 536. See also 11 RIGHT LIMITATIONS; STATES; UNITED STATES GOV- ERNMENT. "D" and "E" Residence Districts, New York City, 274 note 19. See also NEW YORK CITY; RESIDENTIAL USES AND DISTRICTS. Damages, condemnation proceedings, 47-51. See also EMINENT DO- MAIN. Danube, navigation, local government by international agreement, 9. See also LOCAL GOVERNMENTS. Dartmouth College Case, charter of corporation a contract with the state, 163. See also DECISIONS; STATES. Debt Limit, see CITIES AND TOWNS. Decisions of Court, excess condemnation, 133-138; Boston Back Bay cases, zone condemnation, 140; Dartmouth College case, charter a contract with state, 163; bulk zoning in Germany, 216; zoning, 284 note 34, 288-290; Clinton Ave. case (N. Y.), legality of park strips. 390 note 15. See afso BULK ZONING; COURTS; EXCESS CONDEMNATION; PARKS AND PARKWAYS; ZONE CON- DEMNATION; ZONING. Decisions of Planning Authorities, review by Board of Appeals, 569. See also BOARDS OF APPEALS; PLANNING COMMISSIONS. Declaration of Public Utility, France, 534. See also EMINENT DO- MAIN'; FRANCE. "Declaration of Rights," France 1791, 13-14 note i. See also CON- STITUTIONAL AND STATUTORY PROVISIONS. Decrease, nonconformity in structures, 202-204. See also NONCON- FORMING BULKS; NONCONFORMING STRUCTURES; NONCONFORMING USES. Deeds, restrictions supplementing zoning regulations, 205 note 14 (11). See also ZONE REGULATIONS. Default, preparation or execution of plan, mandamus (England), 526. See also PLAN. Definitions, "ancient monuments" (England), 440; area regulations, 197; building regulations, 191; "buildings" (Saxony), 474: bulkhead line, 171 ; bulk regulations, 193, 197; bulk zoning, 198; city planning, i; city planning law, 10; "common courts" (Diisseldorf ), 252; "common .-.ide sit back spaces" (Diisseldorf ), 252; country plan- ning, 6; county planning, 7; district, 204 note 14; "double house" (Diisseldorf). 252; eminent domain. 13; excess condemnation, 59; "graduated building regulation" (Germany), 212. 216; "house of small tenements" (Diisseldorf ), 252; height regulations, 197; inter- state and international planning, 9; "large tenement house" (Diis- INDEX 677 seldorf), 252; "monuments" (England), 440; metropolitan planning, 7, 545; national planning, 8; navigable streams, 171; neighborhood planning, 206; "obstructive building," zone condemnation law (Eng- land), 82; "one, two, three or four story houses" (Diisseldorf), 252; pier head lines, 171; police power, 17; property, law of emi- nent domain, 15 ; public use, 15, 135 ; public utility, 161 ; racial zoning, 200; replotting, 62; "responsible authority" (England), 501; "rural buildings" (Diisseldorf), 252; rural planning, 6; semi-resi- dential use district, 278 note 28; setback, 177; "small house" (Diis- seldorf), 252; state planning, 7; street use, 175; structural require- ments, 191 ; taking, eminent domain, 15 ; "terminal facility," Port Authority Act for New York Harbor, 601 ; "transportation facility," Port Authority Act for New York Harbor, 601 ; "undertaker" of street improvements (Germany), 365; use zoning, 198; work of art (New York), 586; zone condemnation, 61, 139, 140; zone regula- tions, 191; zoning, 197, 204 note 14; zoning board or commission, 204 note 14. See also statutory definitions listed in New York City Building Zone resolution, 305-306; Milwaukee zoning ordinance, 324- 325; Alameda (Cal.) ordinance, 349-351; Port Authority Act for New York Harbor, 601-602. Delay, condemnation proceedings, duplication of bill of rights in federal and state constitutions, 45. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; EMINENT DOMAIN. Delegation of Planning Authority, local governmental agencies, 543. See also CITIES AND TOWNS; LOCAL GOVERNMENTS. Delivery, store door, proposed port zoning in New York, 278 note 28. See also HARBORS AND WATER FRONT. Denmark, legislation for promotion of beauty, 396 note 24. See also BEAUTY, PROMOTION OF. Departments, Planning, Pennsylvania, 595; Minneapolis, 576. See also ADMINISTRATION; PLANNING COMMISSIONS. Dependencies of United States, application of constitutional limitations, 536 note 2. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; UNITED STATES GOVERNMENT. Derogations, see EXCEPTIONS. Designs, see BEAUTY, PROMOTION OF. Destruction, property injurious to public health, 15; restoration of non- conforming bulk (New York City), 269. See also EMINENT DOMAIN; NONCONFORMING BULKS; POLICE POWER. Detached Houses, see RESIDENTIAL USES AND DISTRICTS. Detail, city plan requirements, 28. See also PLAN. Determination, bulkhead and pier head lines, 171. See also HARBORS AND WATER FRONT. Devastated Regions, France, resubdivision, 514 note 34; application of sanitary ordinances, 514 note 34; self-imposed liability of France for war damages, 514 note 34. See also LAND; ZONE REGULA- TIONS. Development, bulk zoning see BULK ZONING; city, see CITIES AND TOWNS; land, see LAND; state resources, see STATES; use zon- ing, see USE ZONING. Differences, zoning regulations, equality of treatment, 282-283. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; ZONE REGULATIONS. Discontinuance, operations in nonconforming structures (Los Angeles), 201 : features referred to planning commissions, 562. See also NON- CONFORMING USES; PLANNING COMMISSIONS. 678 INDEX Discretionary Powers, of officials in administering zoning regulations, 279. See also CRITICISMS; PLANNING COMMISSIONS; RECOMMENDATIONS AND SUGGESTED REFORMS. Disease, influence of bulk regulation, 195. See also ZONE REGULA- TIONS. Disfigurement, public places (Germany), 403-405; streets or built up localities or country landscapes (Prussia), 468; prevention (Saxony), 477 ; outdoor advertising, statutes tabulated, 636. See also BEAUTY, PROMOTION OF; OUTDOOR ADVERTISING; STREETS AND HIGHWAYS. Displacement of conforming by nonconforming use, 206 note 14 (Mb). See also NONCONFORMING USES. Distribution, industries and population, state planning, 8; industries and population, possible regional planning by United States, 541. See also PLANNING. District of Columbia, zoning law, 301-304; restriction on powers, 535; regulation of "premises" including vacant land, 566 note 43. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; LAND; ZONE REGULATIONS. District of Port of New York, creation, 598. See also HARBORS AND WATER FRONT. Districts, change in character, loss minimized by use zoning, 200; defini- tion, 204 note 14; divisions (Frankfort), 237-238 (sec. 2); residen- tial and industrial (Toronto), 265; height (Boston), 266 and note 6; industrial residence and residence exception (Los Angeles), 267; cow, undertaking, motion picture, public garage, billboard (Los Angeles), 267 note 9; uses excluded, proper framing of general and special provisions, 268 note n; New York City, 268; alteration of lines, New York zoning law for cities, 297-208; alteration of lines, New York City zoning resolution, 322; determination (Milwaukee), 337; alteration (Milwaukee), 339; change of classification (Alameda, Gal.), 343: changes within district (Alameda, Cal.), 353; tax, bene- fit assessments, area of assessment, 369; under Prussian Housing Law of 1918, 473. Diversion, land condemned for specific use, 57 note 20. See also EMI- NENT DOMAIN. Dividends, reasonable return on capital invested, 164. See also TRANS- PORTATION. Division of City, zones and classes (Dusseldorf), 255. See also DIS- TRICTS; ZONING. Division Fences, compulsory joint improvement, analogy to replotting, 143. See also REPLOTTING. Docks, see HARBORS AND WATER FRONT. "Double house," definition, Diisseldorf ordinance. 252. See also DEFI- NITIONS; RESIDENTIAL USES AND DISTRICTS. Drainage, state planning. 8; planned territory (Saxony), 476. See also PLAN; PLANNING. Drainage Laws, analogy to replottinir as valid exercise of police power, 143. See also POLICE POWER; REPLOTTING. Drainage Maps, reference to planning commission (New York), 582. Sec also MAPS; PLANNING COMMISSIONS. Drainage Scheme Cases, similarity to zone condemnation, 140. See also 7<>XF. CONDEMNATION. Dresden, bulk and use zoning, 216. See also BULK ZONING; USE ZONING. Drinking Water, provisions for (France), 515. See also PLAN, INDEX 679 Due Process, condemnation proceedings, 50. See also CONSTITU- TIONAL AND STATUTORY PROVISIONS: EMINENT DO- MAIN. Dunfermline (England) scheme, houses to acre, 503 note 13. See also AREA LIMITATIONS AND DISTRICTS Duration of Plan, see PLAN. Diisseldorf, bulk zoning, zones, specially regulated streets and special classes of streets, 217; building ordinance, 250-261. See also BULK ZONING; ORDINANCES; STREETS AND HIGHWAYS' ZONING. Dutch Housing Law, planning provisions, 495-497. See also CONSTI- TUTIONAL AND STATUTORY PROVISIONS. Duties, of planning commissions, see PLANNING COMMISSIONS. Dwelling Houses, see RESIDENTIAL USES AND DISTRICTS. Earthquake, plan for reconstruction required (France), 515, 530. See also REPLOTTING. Easements, enumeration, eminent domain, 15 ; city's right in streets, 173 ; city's right in land front of building line, 177. See also AIR; AREA LIMITATIONS AND DISTRICTS; EMINENT DO- MAIN; HEIGHT LIMITATIONS AND DISTRICTS; LAND; LIGHT; STREETS AND HIGHWAYS; USE LIMITATIONS AND DISTRICTS. East Birmingham (England) scheme, houses to acre, 503 note 13; use districts, 504; summary of scheme, 506 note 20. See also AREA LIMITATIONS AND DISTRICTS; USE LIMITATIONS AND DISTRICTS. East Cleveland Case, exclusion of tenement houses from one and two family residence districts, 288. See also RESIDENTIAL USES AND DISTRICTS. Edmonton (Canada), assessment and taxation on outlying subdivisions, 41 note 20. See also LAND; TAXATION. Effect, of lack of building regulation, 193-195 and 194 note 7; of plan, see PLAN; of use zoning, see USE ZONING. See also ZONE REGULATIONS. Election by City, to have a planning commission, procedure (New Jersey), 579- See also PLANNING COMMISSIONS. Electric Power Systems, part of city plan, 27. See also PLAN. Electric Railways Commission, Federal, report, 372 note 22. See also TRANSPORTATION. Elevated Lines, construction, damages to landowners, 176. See also EMI- NENT DOMAIN; TRANSPORTATION. Elevator Bulk Heads, New York City, 270. See also ZONE REGULA- TIONS. Elimination, of nonconformity in structures, see NONCONFORMING STRUCTURES; of remnants, see REMNANTS; of slums, see ZONE CONDEMNATION. Elizabeth, N. J., semi-residential use district, 278 note 28. See also RESIDENTIAL USES AND DISTRICTS. EMINENT DOMAIN: i. In General; 2. Public Use; 3. Right to Compensation in General; 4. Restrictions on Land under Plan- ning Law; 5. Amount of Compensation; 6. Improvements after Adoption of Plan; 7. Procedure; 8. Expropriation Laws Abroad. Cross-references: ADMINISTRATION (5); AREA LIMITA- TIONS AND DISTRICTS (i); BEAUTY, PROMOTION OF (3, 4, 7, ii) ; ENGLAND (6, 7) ; FRANCE (3, 5) ; GERMANY 680 INDEX (4, 8); HEIGHT LIMITATIONS AND DISTRICTS (2); LAND (6, io, ii) ; MASSACHUSETTS (6) ; NEW YORK (i, 3) ; POLICE POWER (i); RECOMMENDATIONS AND SUG- GESTED REFORMS (3, 6, 15) ; REPLOTTING (2, 3) ; RESI- DENTIAL USES AND DISTRICTS (3); SETBACKS (i); STREETS AND HIGHWAYS (7, 8); UNITED STATES (3); USE LIMITATIONS AND DISTRICTS (i); ZONING (2). i. In General: power to condemn fundamental in city planning, 12; definition, 13; effect of local conditions on power, 20; police power distinguished, 25 ; effect as controlling cost of land to city, 44 ; power possessed by public utilities, 161 ; zoning under, impractical, 280. a. Public Use: condemnation of property injurious to public health, 15; diversion to other uses of land condemned for specific use, 57 note 20; condemnation of land already devoted to public use, 58; replotting, 85; condemnation of buildings in front of building line, 177-178; taking for aesthetic purposes, 382-390, 390 note 15. 3. Right to Compensation in General: compensation to owner, neces- sity, 13, 16, 535, 588; not necessary in police power, 17; planning law (Prussia), 470-471; expropriation provision, Dutch Housing Law, 496; East Birmingham (England) scheme, 509 note 20; Town Planning Acts 1909-1919 (England), 518-519, 523-525. 4. Restrictions on Land under Planning Law: compensation for invasion of property rights as affected by custom, opinion and local conditions, 25; establishment of building line, 177; no compensation in Prussia, 454, 456, 470; no compensation in Saxony, 459-460; com- pensation in Baden, 460; compensation in Holland, 460; compensa- tion in Sweden, 462. 5. Amount of Compensation: determination, 46-51 ; damages to part of land not taken, 48; determination under French expropriation law, 97-102; basis of valuation, French expropriation law, 99 note 853. 6. Improvements after Adoption of Plan: in violation of city plan, right to compensation when condemned, 30; in bed of mapped streets made in bad faith, 31 note 7; in mapped streets with city's consent, 34; made with knowledge of city plan, forfeiture of right to reimbursement, 69; Italy, 446; Prussia, 453; Saxony, 480-482; England, 509; made pending preparation and adoption of plan, provisions of Town Planning Acts, 1909-1919 (England), 524-525. 7. Procedure: function and value of legal restrictions, 44; delay caused by duplication of bill of rights in federal and state constitutions, 45; requisites, 50; survey by Russell Sage Foundation, 51-55; plead- ing, necessity of alleging specific public use, 55-57 ; procedure in France, 68, 69; preliminary establishment of utility under French expropriation law, inquest, 91. 8. Expropriation Laws Abroad: France, 68, 69, 91-105; England, 70, 71, 382 note 3; New Zealand, 382 note 3; Germany, 400 note 34; Prussia, 452, 455, 473; Sweden, 462; Italy, 465-466; Saxony, 488-489; Holland, 495-496. Encroachments, prevention, 28-39; on mapped streets made in bad faith, 31 note 7; on mapped streets with city's consent, 34, 175; removal, 175; lines, fixing by city, 175; allowance (Frankfort), 229 (sec. 8); ornamental projections beyond building Hnrs. .joj note 43. See also CITIES AND TOWNS; STREETS AND HIGHWAYS. Enforcement, of city plan, see PLAN; of zoning regulations, see ZONE REGULATIONS. INDEX 681 ENGLAND: i. In General; 2. Acts of Parliament; 3. City Plan; 4. Streets; 5. Bulk Regulations and Setbacks; 6. Promotion of Beauty; 7. Condemnation Proceedings; 8. Excess Condemna- tion; 9. Zone Condemnation; 10. Replotting; n. Taxation and Assessments. Cross-references: ADMINISTRATION (2, 4, 5); AREA LIMI- TATIONS AND DISTRICTS (i, 2, 3, 4); BEAUTY, PROMO- TION OF (2, 3, 4, 8, ii) ; BENEFIT ASSESSMENTS (2) ; BULK ZONING (2) ; CITIES AND TOWNS (i) ; CONSTITUTIONAL AND STATUTORY PROVISIONS (5, 6) ; EMINENT DOMAIN (3, 6, 8); EXCESS CONDEMNATION (i, 2, 5, 7); HEIGHT LIMITATIONS AND DISTRICTS (i, 2, 3) ; LAND (7, 8, o, 10) : LANDOWNERS (3, 4); OUTDOOR ADVERTISING (3); PARKS AND PARKWAYS (2, 5, 7, 9, 10) ; PLAN (i, 2, 3, 5, 7) ; PLANNING (3, 12); PUBLIC IMPROVEMENTS (3); RESI- DENTIAL USES AND DISTRICTS (2, 7, 9) ; SETBACKS (i) ; STREETS AND HIGHWAYS (i, 3, 6, 10, 11) ; USE LIMITA- TIONS AND DISTRICTS (i); ZONE CONDEMNATION (2); ZONE REGULATIONS (4); ZONING (4). 1. In General: law applicable to future building land, 3; protection of private property rights, 13; problem of nonconformity of structures not met with, 201; zoning, 210, 218 and note 16; planning adminis- tration, 498-510. 2. Acts of Parliament: Land Clauses Act, 71, 72; Planning Act of 1909- 1919, 499-510; Ancient Monuments Consolidation and Amendment Act, 1913, 432-441; Advertisements Regulation Act, 1907, 441-442; Town Planning Acts, 1909 and 1919, 518-529. 3. City Plan: enforcement, 30; submission by individual, requirements, history, 498; section of city as planning unit, 499; preparation and adoption mandatory, 499, 501 ; content, 502-503. 4. Streets: direction and width, regulation, history, 498; street widen- ing, history, 498. 5. Bulk Regulations and Setbacks: area and height limitations, build- ing lines, history, 498. 6. Promotion of Beauty: expropriation, 382 note 3; protection of ob- jects of beauty, 399-400; building designs, local by-laws, 407; out- door advertising, 420-421 ; architectural harmony in localities, 439- 440; outdoor advertising near ancient monuments, 440. 7. Condemnation Proceedings: debiting value of improvement, 48 note ii ; selection of tribunal, 54 note 16; history, 70-71; procedure, 73 note 23. 8. Excess Condemnation: taking "excess" or "zone" land by agree- ment, 64 ; statutes, 67 note 20 ; history, 70-75, 498 ; successful in practice, 72; onerous conditions in Land Clauses Consolidation Act, 72, 73- 9. Zone Condemnation: method of assessing compensation to owners of slum areas, 74, 75 ; housing reforms and slum removal, 80-83 ; improvement of unhealthy areas, procedure, 89-90; condemnation of slum areas, history, 498. 10. Replotting: statutes, 84 note 67. 11. Taxation and Assessments: local taxation methods, 358; benefit assessments, 364; benefit assessments, area of assessment, 369. Enlargement, nonconforming building, 206 note 14 (142) ; features re- ferred to commission, 562. See also ADMINISTRATION; NON-CONFORMING STRUCTURES; PLANNING COMMIS- SIONS. 68a INDEX Enterprises, Municipal, source of revenue, 357-358; self-supporting, debt limit, 361 and note 3. See also CITIES AND TOWNS. Entire Tract, taking, measure of damages, 47. See also EMINENT DO- MAIN. Equal Protection of Law, zoning regulations, 282-283 constitutional guarantee (U. S.), 535. See also CONSTITUTIONAL AND STATUTORY PROVISIONS. Essentials, of planning law, 444. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; PLAN. Essex County (N. J.), influence of parks on land values, 370. See also LAND; PARKS AND PARKWAYS. Establishment, of building lines, see SETBACKS; of plan, see PLAN; of setbacks, see SETBACKS; of street lines, see STREETS AND HIGHWAYS; of utility under French expropriation law, see EMINENT DOMAIN. Estates in Land, enumeration, eminent domain, 15. See also EMINENT DOMAIN; LAND. Europe, origin and development of zoning, 210 and note I ; tall buildings, 217 note 15; benefit assessments, 364; promotion of beauty under police power, 392; legislation for promotion of beauty, 396 and note 23. See also BEAUTY, PROMOTION OF; BENEFIT ASSESS- MENTS; CONSTITUTIONAL AND STATUTORY PROVI- SIONS; POLICE POWER; TALL BUILDINGS; ZON- ING. Examination, of city plan before adoption, see PLAN; of proposed building plan (Saxony), 479. Excavations, conservation of objects discovered (France), 430. See also BEAUTY. PROMOTION OF. Exceptions, jurisdiction of board of appeal, 205 note 14 (13); height limitations (New York City), 270; use district (New York City), 310-311; height district (New York City), 312-314; area district (New York City), 319; height limitations (Milwaukee), 329; cases of hardship (Saxony), 459; planning law (Prussia), 470; building law (Saxony), 475; building regulations (Saxony), 490-491; plan- ning regulations (France), 516; cases of hardship, function of Board of Appeals, 569; conditions imposed on allowance, power of Board of Appeals, 572 note 52. See also AREA LIMITATIONS AND DISTRICTS; BOARDS OF APPEALS. Ill Kill r LIMI- TATIONS AND DISTRICTS; RESIDENTIAL USES AND DISTRICTS; USE LIMITATIONS AND DISTRICTS; ZONE REGULATIONS. Excess Acquisition of Land, distinguished from excess condemnation, 64; statutory provisions, 64. See also EXCESS CONDEMNA- TION. EXCESS CONDEMNATION: i. In General; 2. History; 3. Con- stitutionality; 4. Constitutional Amendments; 5. Statutes; 6. Purposes; 7. Superfluous Lands; 8. Repurchase; 9. Financing. Cross-references: ADMINISTRATION () ; BEAUTY, PRO- MOTION OF (3); CITIES AND TOWNS (2, 5, 7); CONSTI- TUTIONAL AND STATUTORY PROVISIONS (3, 5, 9); ENGLAND (8); FRANCE (5, 6); LAND (10, n) ; MASSA- CHUSETTS (2); NEW JERSEY (i); NEW YORK (2); M \V YORK CITY (8) ; PARKS AND PARKWAYS (3. 8, 10) ; PUB- LIC IMPROVEMENTS (i) ; RECOMMENDATIONS AND SUGGESTED REFORMS (4, 13) : STATI AND HIGHWAYS (7) ; TAXATION (4) ; TRANSPORTATION (4) ; INDEX 683 UNITED STATES (4); UNITED STATES GOVERNMENT (4) ; ZONE CONDEMNATION (i). 1. In General: definition, 59; distinguished from excess acquisition, 64; successful in England, 72; advantages over local assessment or increment tax, 139; distinguished from zone condemnation, 140. 2. History: general statement, 65; New York statute first in United States, 70; United States, discontinued in 1834, revived in 1904, 70, 128-129; France since 1850, 75-79; England, 498. 3. Constitutionality: general discussion, 132-138. 4. Constitutional Amendments: general statement, 131; Massachu- setts, 148; New York, 149; Ohio, 148; Rhode Island, 149; Wisconsin, 148. 5. Statutes: tabulated, 633; Connecticut, 130 note 15; Maryland, 130 note 15; Massachusetts, 128, 131 and notes 17 and 21, 153; New Jersey, 149; New York, 131 and note 22, 153; Ohio, 128, 129, 131, 151; Oregon, 130 note 13, 131 note 19, 151 ; Pennsylvania, 130 note 12, 131 note 19; Rhode Island, 131 and notes 17 and 22, 159; Virginia, 129 note 9, 130 note 16, 131 note 18, 152; Wisconsin, 129 note 10, 130 notes 13 and 15, 131 and notes 18 and 20; Belgium, 79; Canada, Aus- tralia and India, 73 and note 24, 511; England, 70-75; France, 91-105, 514 note 34. 6. Purposes: as stated in various statutes, 129; elimination of rem- nants, replotting, protection of light and air, attractiveness, 132; securing increment of land values to city, 374 note 23; employment in France, Switzerland and Belgium to promote beauty, 382 note 3. 7. Superfluous Lands: adjacent to streets, public buildings, parks, municipally owned railroad, 60-6 1 ; sale within limited time (Eng- land), 72; lease pending sale (England), 73. 8. Repurchase: right of owner, 131. 9. Financing: bonds, debt limit, 132. Exclusion, uses from districts, proper framing of provisions, 268 note 11; residences from heavy industrial districts, 277 ; business from resi- dential districts, 288; tenements from residential districts, 289. See also DISTRICTS; INDUSTRIAL USES AND DISTRICTS; RESIDENTIAL USES AND DISTRICTS. Execution of Plan, see PLAN. Executive Planning, see ADMINISTRATION. Exemptions, see EXCEPTIONS. Existing Buildings, height and area, see NONCONFORMING BULKS ; use, see NONCONFORMING USES. Expenses, of New York City Art Commission, 586; of plan, see PLAN; of planning commission, see PLANNING COMMISSIONS. Experimentation in Planning, function and powers of United States, 542 note 9; function of state, 543. See also STATES; UNITED STATES GOVERNMENT. Expert Assistance, state to local communities, 553. See also LOCAL GOVERNMENTS; STATES. Expert Testimony, condemnation proceedings, unreliability, 54. See also EMINENT DOMAIN. Experts, employment by planning commission, see PLANNING COM- MISSIONS. Expiration of Charter, competing utilities, 168. See also PUBLIC UTILITIES. Expropriation, see EMINENT DOMAIN. Extension, city (Germany), 40; nonconforming use, 203, 206 note 14 (i4b); street plans (Italy), 445; building areas, obligation on 684 INDEX authorities when needed (Saxony, Wiirttemberg and Baden), 460; plans (Italy), 466; plan for additional building (Saxony), 482-483; plans, Dutch Housing Law, 496-497; city limits into undeveloped areas, 546; city's planning jurisdiction beyond its limits, 546. See also CITIES AND TOWNS; NONCONFORMING USES; PLAN; STREETS AND HIGHWAYS. Fagades, German aesthetic legislation, 403. See also BEAUTY, PROMO- TION OF. Facilities, Transportation, control by city, 164-166; joint use by com- peting utilities, 168. See also TRANSPORTATION. Factory Law, distinguished from zoning law, 205 note 14 (12). See also ZONING. Failure, to prepare or execute plan, see DEFAULT. See also PLAN. Families, on area unit, 277. See also AREA LIMITATIONS AND DIS- TRICTS Fare, Rate of,' see TRANSPORTATION. See also COMMUTATION. Farming Structures, in residence districts (New York City), 268. See also RESIDENTIAL USES AND DISTRICTS. Faults, of New York City zoning, 273; New York City bulk regulation, 275-276. See also BULK ZONING; ZONING. Federal Buildings, planning power of United States, 8. See also PUB- LIC BUILDINGS; UNITED STATES GOVERNMENT. Federal Control, see UNITED STATES GOVERNMENT. Federal Electric Railways Commission, report, 372 note 22. See also TRANSPORTATION. Federal Government, see UNITED STATES GOVERNMENT. Federal Highways, see STREETS AND HIGHWAYS. Federal Planning, effect of federal constitution, 8. See also CONSTI- TUTIONAL AND STATUTORY PROVISIONS; PLAN. Fee in Streets, city's right to take, 173. See also CITIES AND TOWNS; STREETS AND HIGHWAYS. Fences, Division, see DIVISION FENCES. Ferry Sheds, powers of planning commission, 561-2. See also PLAN- NING COMMISSIONS. Fifth Amendment to United States Constitution, effect on police power, 18. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; POLICE POWER. Fifth Avenue (upper) New York, height limitations. 276 note 223. See also HEIGHT LIMITATIONS AND DISTRICTS; NEW YORK CITY. Filling, to bulkhead line, right of riparian owner. 171 note n. See also HARBORS AND WATER FRONT; RIPARIAN OWNERS. Financing, excess condemnation, 132; public works, difficulty, 357; city improvements, 359-360; improvements, avoidance of debt limit, 362. See also CITIES AND TOWNS; EXCESS CONDEMNATION; PUBLIC IMPROVEMENTS. Fire, plan for reconstruction required (Prussia), 453; reconstruction (Saxony), 475; plan for reconstruction required (France), 515, 530. See also REPLOTTING. Fire Prevention, Metropolitan Fire Commission (Mass.), 547-8. Fire Proof Regulations, for tenement houses (New York and Chicago), 1 92. Fire Hazard, influence of bulk regulations, 195. See also BULK ZON- rNG. Fire Peril, tall buildings, 195. See also TALL BUILDINGS. INDEX 685 Fire Risk, zoning regulations, 204 note 14 (4). See also ZONE REGU- LATIONS. Five Cent Fare, influence on distribution of population, 162. See also CITIES AND TOWNS. Flat Rate, charges by transportation companies, 165. See also TRANS- PORTATION. Flats, exclusion from single family house districts, 205 note 14 (13). See also RESIDENTIAL USES AND DISTRICTS. Foreign Commerce, federal control, basis of United States planning power, 536-541. See also UNITED STATES GOVERNMENT. Foreign Countries, methods of enforcing city plan, 30. See also PLAN. Forests, municipal, legality, 383 note 6; conservation by state regional planning, 544. See also CITIES AND TOWNS; PLANNING; STATES. Forts, planning powers of United States, 8, 536. See also UNITED STATES GOVERNMENT. Foundations, housing, power to expropriate (Holland), 496; preparation of plans mandatory (France), 533. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; EMINENT DOMAIN; HOUSING; PLAN. Fourteenth Amendment to United States Constitution, police power not affected, 18. See also CONSTITUTIONAL AND STATU- TORY PROVISIONS; POLICE POWER. Framing, of general and special provisions excluding uses from districts, 268 note 11. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; DISTRICTS; USES. FRANCE: i. In General- 2. Legislation; 3. Streets; 4. Promotion of Beauty; 5. Expropriation; 6. Excess Condemnation; 7. Zone Condemnation; 8. Taxation and Assessments. Cross-references : ADMINISTRATION (2, 4, 5, 6) ; BEAUTY, PROMOTION OF (2, 3, 7, 8, n, 12); CITIES AND TOWNS (i); CONSTITUTIONAL AND STATUTORY PROVISIONS (5, 6) ; EMINENT DOMAIN (5, 7, 8) ; EXCESS CONDEMNA- TION (2, 5, 6) ; HEIGHT LIMITATIONS AND DISTRICTS (3) ; LAND (7) ; LANDOWNERS (3) ; OUTDOOR ADVER- TISING (3) ; PARKS AND PARKWAYS (2, 8, 9, 10) ; PLAN (i, 2, 3, 5) ; PLANNING COMMISSIONS (2, 3, 5) ; STREETS AND HIGHWAYS (3, 4, 7, 11) ; TAXATION (i, 9); ZONE CONDEMNATION (i). 1. In General: protection of private property rights, 13 note i; no zoning law, 210. But see NAPOLEON I. 2. Legislation: sanitation of cities, 76; mandatory, 499 note 3; Plan- ning Law of 1919, 513-517, 529-534- 3. Streets: taking land for widening streets, 66 note 9. 4. Promotion of Beauty: legislation for promotion of beauty "classi- fication," 396-399 and note 23 ; prizes and remission of taxes for most artistic buildings, 407; outdoor advertising, 419-420; protection of places of natural beauty, 422-423 ; "classification" of historic and artistic objects and places, 423-432. 5. Expropriation: history, 65; procedure, 68, 69; Expropriation Law of 1841 as amended by Excess Condemnation Law of 1918, 91, 105. 6. Excess Condemnation: origin, statute of 1807, 67; since 1850, 75- 79; to promote beauty, 382 note 3. 7. Zone Condemnation: since 1850, 75-79. 8. Taxation and Assessments: benefit assessments, 364. Franchises, see PUBLIC UTILITIES. 686 INDEX Frankfort-on-the-Main, replotting statute, Lex Adickes, 106-127; "gradu- ated building regulation" or bulk zoning, 213-215 ; special regulations for main traffic streets running through several zones, 216; building ordinances, 227-250; zoning provisions, 262 (No. i). See also BULK ZONING; LEX ADICKES; ORDINANCES; REPLOTTING; STREETS AND HIGHWAYS; ZONE REGULATIONS. Free Transfers, transportation companies, 168. See also PUBLIC UTILITIES; TRANSPORTATION. Freight Lines, construction in streets, liability to landowner, 176. See also STREETS AND HIGHWAYS; TRANSPORTATION. Freund, definition of police power, 17; validity of compulsory joint im- provements, 143 ; validity of drainage and irrigation laws, 144. See also EMINENT DOMAIN; POLICE POWER; REPLOTTING. Function of beauty, 381; of state in city and local planning, 543, ;.^. See also BEAUTY, PROMOTION OF; PLANNING; STATES. Garages, public garage districts (Los Angeles), 267 note 9; restriction in residence districts (New York City), 268; public, zoning regula- tions (New York City), 269-270; accessory, zoning regulations (New York City), 269-270 and note 13; discretionary power of Board of Appeals (New York City), 270; zoning resolution (New York City), 311, 320; Milwaukee ordinance, 326; Alameda (Cal.), ordi- nance, 343-344, 346. See also BOARDS OF APPEALS; DIS- TRICTS; NEW YORK CITY; ORDINANCES; RESIDENTIAL USES AND DISTRICTS; ZONE REGULATIONS. Garden Apartments, significance (New York City), 276 note 23. See also RESIDENTIAL USES AND DISTRICTS; ZONE REGULA- TIONS. Garden City Developments, private use of land, effect on, 12. See also CITIES AND TOWNS; LAND. Gardens, 1918 amendment of Prussian law of 1875, 45 2 : Saxon law, 478. See also AREA LIMITATIONS AND DISTRICTS; RESIDEN- TIAL USES AND DISTRICTS. Gas Systems, part of city plan, 27; municipal plant, self-supporting, debt limit. 361 note 3- See also CITIES AND TOWNS; PLAN. General Plan Act, Pennsylvania, 587-8. See also CONSTITUTIONAL AND STATUTORY PROVISIONS. General Property Tax, local taxation in United States, 358. See also TAXATION. General Public Use, allegations in eminent domain pleading, 55-57. See also EMINENT DOMAIN. General Statutory Provisions, exclusion of uses from districts, proper framing. 268 note n. See also CONSTITUTIONAL AND STAT- UTORY PROVISIONS. GERMANY: i. In General; 2. Legislation; 3. Streets; 4. Promo- tion of Beauty; 5. Zones and Districts; 6. Building Plans and Regulations; 7. Housing; 8. Expropriation; 9. Replotting; 10. Taxation and Assessments. Cross-references: ADMINISTRATION (2. 3. 4); ART- A LIMI- TATIONS AND DISTRICTS (2); l',l XTTV. PROMOTION' OF (2. 7. 8. 10. ii, 12); BENEFIT ASSESSMENTS (2. 5); IU I.K ZONING (2. 3, 4); BUSINESS USES AND DISTRICTS CITIES AND TOWNS (i, 5); CONSTITUTIONAL AND STATUTORY PROVISIONS U 5); EMINENT PoMAIN (3. 4, 6, 8); HEIGHT LIMITATONS AND DISTRICTS (3, 5); LAND (8, 9, 12); ORDINANCES (i); OUTDOOR ADVEKTIS- INDEX 687 ING (3); PARKS AND PARKWAYS (2); PLAN (i, 2, 3, 5, 6, 7) ; PLANNING COMMISSIONS (2) ; PUBLIC IMPROVE- MENTS (3) ; REPLOTTING (4) ; RESIDENTIAL USES AND DISTRICTS (i, 3, 4, 5, 6, 7, 8, 9) ; SETBACKS (i, 2) ; STATES (2, 4) ; STREETS AND HIGHWAYS (3, 4, 5, 6, 8, 10, u, 12) ; TAXATION (2, 3, 4) ; ZONE CONDEMNATION (i) ; ZONE REGULATIONS (i, 4); ZONING (4). 1. In General: protection of private property rights, 13 note i. 2. Legislation: applicable to large and small places, 3; planning ad- ministration, 447-462. 3. Streets: widening, 66 note 9; construction, 366-367. 4. Promotion of Beauty: legislation, 396 note 23, 403-405; building regulation, aesthetic requirements, 400-402; expropriation, 400 note 34; street and building lines, aesthetic requirements, 401; building permits, aesthetic requirements, 402; preservation of structures of historic or artistic importance. 403-405; outdoor advertising, 421-422. 5. Zones and Districts: control of city development, zoning regula- tions, 39; problem of nonconformity of structures to zoning plan not met with, 201; zoning, types of houses, 210, 217 note 14; early de- velopment of use zoning, "protected districts," 211 and note 3; bulk zoning, history, development, legality, 211-213, 216; exclusion of business and industry, 215; height limitations, 221-224; number of stories, restrictions, 224; area limitations, 224-225; exclusion of residences, 277. 6. Building Plans and Regulations: "graduated building regulation," 212, 216, 221; zone building ordinances, 220; health provisions of building ordinances, 221 ; revision of building plans by Bureaus of Building Advice, 406 and note 54; restrictions on building free- dom, remedy, 460-461. 7. Housing: summary of regulations and statistics, 218-227. 8. Expropriation: landownership by cities, extent and purpose, 55, 56; power of cities to condemn land, 57 note 20. 9. Replotting: in outskirts of cities, 85; Statutes, Lex Adickes, 87, 105-127. 10. Taxation and Assessments: local taxation methods, 358; benefit assessments, 364-366; increment taxation, 374 and note 23. Gettysburg Battlefield, taking bv United States Government, 385. See also BEAUTY, PROMOTION OF. Gift to City, works of art, powers of art commission, 565; report by commission to city council (New Jersey), 580. See also BEAUTY, PROMOTION OF. Goodnow, Social Reform and the Constitution, power to tax and application to certain proposed taxes, 375 note 25. See also TAXA- TION. Goods, loading and unloading across sidewalk, 183. See also POLICE POWER; STREETS AND HIGHWAYS; ZONE REGULA- TIONS. Government, cost of executing plan, payment by (England), 5O4-55; federal, see UNITED STATES GOVERNMENT; local, see LOCAL GOVERNMENTS; state, see STATES. Government Monopoly, outdoor advertising (France), 420; outdoor advertising (Germany), 421. See also OUTDOOR ADVERTIS- ING. Grade Crossings, abolishment, taking for a public use, 15. See also EMINENT DOMAIN. Grades, zoning uses, 203. See also USES. 688 INDEX "Graduated Building Regulation," Germany, 212, 216, 221. See also BULK ZONING. Grain Terminals, proposed port zoning (New York City), 278 note 28. See also HARBORS AND WATER FRONT. Grant of Additional Rights, demand of concessions in return, control of public utility, 162, 163. See also PUBLIC UTILITIES. Grant of Charter, competing public utility, 166. See also PUBLIC UTILITIES. Grant of Permit, to lay tracks, proper conditions, 168. See also PUBLIC UTILITIES; TRANSPORTATION. Grant of Powers, to city to make zoning regulations, 205 note 14 (5). See also CITIES AND TOWNS; ZONE REGULATIONS. Grants in Aid, see SUBVENTIONS. Grants, Early, taking land without compensation from owners under, 45 note 2. See also EMINENT DOMAIN. Grants of Money, from central government, source of City's revenue, 357-358. See also CITIES AND TOWNS; SUBVENTIONS. Grass Margins, see PARKS AND PARKWAYS. Gridiron System, street planning, 142. See also STREETS AND HIGHWAYS. Groups of Houses, see RESIDENTIAL USES AND DISTRICTS. Growth, use zoning in Germany, 211 and note 3. See also USE ZONING. Guaranty, Constitutional, private property rights, 13. See also CON- STITUTIONAL AND STATUTORY PROVISIONS. Halifax, planning provisions, 512. See also ZONE REGULATIONS. Hamburg, replotting statutes, 87, 105 and note 90. See also REPLOT- TING. Hampstead (England), effect of development on private use of land, 12. See also CITIES AND TOWNS; LAND. Harbor Commission (N. J.), statutory provisions, 550 note 16. See also HARBORS AND WATER FRONT; PLANNING COMMIS- SIONS. HARBORS AND WATER FRONT: i. In General; a. Title and Recapture; 3. Plan and Planning; 4. Planning Commissions; 5. Port Authority; 6. Piers; 7. Pier Head Lines; 8. Bulkhead Lines; 9. Yards. Cross-references: ADMINISTRATION (3); NEW JERSEY (i, 2); NEW YORK (7); NEW YORK CITY (10); PARKS AND PARKWAYS (2) ; PLAN (2) ; PLANNING (7) ; TRANSPOR- TATION (i, 5); UNITED STATES GOVERNMENT (i); ZONING (4). i. In General: national and state jurisdiction, 537; unexercised power of United States, 540. a. Title and Recapture: title in riparian owner or state, 170; recapture by city, advisability, methods, 171, 172. 3. Plan and Planning: water front and improvements, part of city plan, 27; state's power subject to federal regulation, 540; state supervision (New Jersey), 550 note 16. 4. Planning Commissions: powers over water front and improve- ments (561-2); water front maps (New York), 582; jurisdiction of harbors (Cleveland, Ohio), 587. 5. Port Authority: New York and New Jersey, 549-55 a d notes 14 and 15; Port Authority Act for New York Harbor, 597-603. 6. Piers: effect on private use of land, 11; ripht of riparian owner to build, 170; types, proposed port zoning in New York, 278 note 28; INDEX 689 unexercised power of United States, 540; powers of commission, 561-2. 7. Pier Head Lines: definition and determination, 171; national and state regulation, 539, 540; powers of commission, 561-2. 8. Bulkhead Lines: definition and determination, 171; right of riparian owner to fill, 171 note n; national and state regulation, 539-540; powers of commission, 561-2. 9. Yards: receiving and classification, proposed port zoning in New York, 278 note 28. Hardship, ground for modification of New York City zoning resolution, 320; exceptions allowed (Saxony), 459; exceptions allowed, func- tion of Board of Appeals, 569. See also BOARDS OF APPEALS ; EXCEPTIONS; ZONE REGULATIONS. Hartford (Conn.), taxation of agricultural land, 42 note 21 ; height of buildings about State Capitol, limitation, 387 note 13; permanent planning commission, 554. See also LAND; HEIGHT LIMITA- TIONS AND DISTRICTS; ORDINANCES; PLANNING COMMISSIONS; TAXATION. Hastings, W. G., definition of police power, 18 note 4. See also POLICE POWER. Health Provisions, building ordinances in German cities, 221. See also ORDINANCES; PUBLIC HEALTH. Health, Public, see PUBLIC HEALTH. Health Resorts, formulation of plans required (France), 515. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; PLAN. Hearings, condemnation proceedings, 50, 52; on proposed plan (Italy), 446. See also EMINENT DOMAIN; PLAN. Heavy Industrial Districts, see INDUSTRIAL USES AND DIS- TRICTS. Heavy Industrial Use, see INDUSTRIAL USES AND DISTRICTS. HEIGHT LIMITATIONS AND DISTRICTS: i. In General; 2. Police Power; 3. General Regulations; 4. Particular Locali- ties; 5. Stories in Buildings; 6. Height Districts. Cross-references: BEAUTY, PROMOTION OF (9); CONSTI- TUTIONAL AND STATUTORY PROVISIONS (9); ENG- LAND (5); GERMANY (5); MASSACHUSETTS (5); NEW YORK CITY (6); ORDINANCES (i) ; RECOMMENDATIONS AND SUGGESTED REFORMS (8); SETBACKS (i). 1. In General: part of city planning, 5; part of city plan, 27, 515; definition, examples, effect on land values, 197, 209; relation to width of street and use of property, 206 note 14 (16) ; history (England), 408; federal property not subject to state regulations (Boston customs house), 536. 2. Police Power: employment in limiting height about Washington Monument, Baltimore, 393 note 20; no compensation to landowner (England), 509. 3. General Regulations: Alameda (Cat), 275; Baltimore, 265 and note 4; Brooklyn (N. Y.), 275; Cologne (Germany), 262 (No. 2); Diisseldorf, 252, 256-258; England, 504; France, 515; Frankfort, 231-2 (sec. n), 241-243 (sec. 5), 262 (No. i) ; Germany, 221-224; Indianapolis, 265 and note 5; Karlsruhe, 263 (No. 3); Milwaukee, 328-330; Minnesota, 577; Munich, 264 (No. 4); New York Gty, 270, 275-276, 402 note 43; Ontario, 513; Prussia, 474; Saxony, 476, 492; Washington (D. C.), 265. 4. Particular Localities: around public building or square, 15; 6oo INDEX Upper Fifth Avenue, New York, 276 note 22a; Copley Square Massachusetts, 385-386; about State House, Boston, 387 note 13; about State Capitol, Hartford, Conn., 387 note 13; about proposed Court House, New York City, 387 note 13; about Washington Monument, Baltimore, 393 note 20. 5. Stories in Buildings: Germany, 224; Diisseldorf, 253, 256, 258; Frankfort, 262 (No. i) ; Cologne, 262 (No. 2); Karlsruhe, 263 (No. 3); Munich, 264 (No. 4); Milwaukee, 335; Prussia, 474; Saxony, 458, 478, 492. 6. Height Districts: Boston, 266 and note 6; New York City, 268, 270, 311-314; legality, 284 note 34; Milwaukee, 328-330; Alameda (Cal.), 346; authorized under New York law, 566. Height Zoning, constitutionality, 287 note 35. See also HEIGHT LIMI- TATIONS AND DISTRICTS; ZONING. Height of Buildings Commission (New York City), principle of selec- tion, 271. See also HEIGHT LIMITATIONS AND DISTRICTS; PLANNING COMMISSIONS. Henry IV, establishment of Place des Vosges, 65. See also EXCESS CONDEMNATION; STREETS AND HIGHWAYS. Hesse, replotting under eminent domain, 85 note 68; "classification" of works of artistic and historic value, 398 note 27. See also BEAUTY, PROMOTION OF; CLASSIFICATION; EMINENT DOMAIN: REPLOTTING. Highways, see STREETS AND HIGHWAYS. Hildesheim, regulation of architectural styles, 400. See also BEAUTY, PROMOTION OF. Historic Monuments, outdoor advertising (France), 420; outdoor ad- vertising (England), 421. See also BEAUTY, PROMOTION OF; OUTDOOR ADVERTISING. Historic Places, protection (France), 423-432; plans required (France), 515. See also BEAUTY, PROMOTION OF; PLAN. History, excess and zone condemnation, 65; zoning, 210 note i; bulk zoning in Germany, 211-213; city planning law of recent growth, 444; planning law in Italy, 444-445; planning law in Germany, 447-462; planning law in England, 498-510. See also AREA LIMITATIONS AND DISTRICTS; BULK ZONING; EXCESS CONDEMNA- TION; PLAN; PLANNING; STREETS AND HIGHWAYS; ZONE CONDEMNATION; ZONING. Holland, housing and city planning law, compensation, 460; housing law, planning provisions, 495-497. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; HOUSING. Holmes, O. W. (U. S. Supreme Court), police power not affected by Mth Amendment. iQ. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; POLICE POWER. Home Area Districts, Alameda (Cal.) ordinance, 348. See also RESI- DENTIAL USES AND DISTRICTS. Home Rule, see CITIES AND TOWNS. "Houses of Small Tenements," definition, Dusseldorf ordinance, 252. Sec also RESIDENTIAL USES AND DISTRICTS. Houses, number to acre, England, 503-504. See also AREA LIMITA- TIONS AND DISTRICTS. Houses, Apartment, see RESIDENTIAL USES AND DISTRICTS (4). Houses, Attached, see RESIDENTIAL USES AND DISTRICTS (7). Houses, Detached, see RESIDENTIAL USES AND DISTRICTS (8). Houses, Groups, see RESIDENTIAL USES AND DISTRICTS (7). Houses, Municipal, see MUNICIPAL HOUSES. INDEX 691 Houses, One Family, see RESIDENTIAL USES AND DISTRICTS (5, 10). Houses, Tenement, see RESIDENTIAL USES AND DISTRICTS (3) Houses, Three Family, see RESIDENTIAL USES AND DISTRICTS Houses, Two Family, see RESIDENTIAL USES AND DISTRICTS .(6, 11). Housing, relation to city planning, 5 ; of people of limited means, condem- nation of land, 57 note 20; sumirary of regulations and statistics (Germany), 218-227. See also EMINENT DOMAIN; PLAN- NING; ZONE REGULATIONS. Housing Law, distinguished from zoning law, 205 note 14 (12). See also CONSTITUTIONAL AND STATUTORY PROVISIONS- HOUSING LAWS. Housing Laws, Housing, Town Planning, etc. Act. 1919 (England), 74 note 27; Housing Law, 1901 (Holland), 74 note 28; Housing of Working Classes, Act. 1890 (England), 75 note 34, 89-90; Housing Law of 1918 (Prussia), 473-474. Housing Reforms in England, influence on industrial Europe, 80. Housing Rules, promulgation, function of state planning, 8. See also PLANNING; STATES; ZONE REGULATIONS. Idle Land, see LAND. Illinois, zoning law under police power, 281 note 33. See also CONSTI- TUTIONAL AND STATUTORY PROVISIONS; POLICE POWER; ZONING. Imperial "Industrial Law," licensing of establishments (Germany), 211. See also GERMANY. Importance, New York City zoning, 272; recognition of general zoning principles, 272 note 17; uniformity in zoning practice, 272 note 17. See also NEW YORK CITY; ZONING. Improvement of Unhealthy Areas, procedure in England, 89-90. See also ZONE CONDEMNATION. Improvements, joint and compulsory, under police power, analogy to re- plotting, 143, 144, 146; private, compensation for, see EMINENT DOMAIN; public, see PUBLIC IMPROVEMENTS. See also REPLOTTING. Incidence of Taxation, effect on city plan. 358. See also TAXATION. Income, Municipal, see CITIES AND TOWNS. Income Tax, see TAXATION. Increase in Rates, transportation companies, effect, 165. See also TRANSPORTATION. Increment Tax, see TAXATION. Indebtedness, Municipal, see CITIES AND TOWNS. India, excess and zone condemnation, 73 and note 24; replotting, 84 note 67. See also EXCESS CONDEMNATION; REPLOTTING; ZONE CONDEMNATION. Indiana, setback statute, 184. See also SETBACKS. Indianapolis, height limitations, 265 note 5. See also HEIGHT LIMI- TATIONS AND DISTRICTS. Individuals, land developments, plans required (France), 515, 533. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; LAND; PLAN. Industrial Development, on large lots, n. See also INDUSTRIAL USES AND DISTRICTS; LAND; SUBDIVISIONS. Industrial Improvements, excess condemnation, 61. See also EXCESS CONDEMNATION. 693 INDEX INDUSTRIAL USES AND DISTRICTS: i. In General; 2. Regu- lations; 3. Light Industrial; 4. Heavy Industrial Cross-references: RECOMMENDATIONS AND SUGGESTED REFORMS (9); RESIDENTIAL USES AND DISTRICTS (i, 12) ; USE LIMITATIONS AND DISTRICTS (3). i. In General: classification of uses into light and heavy industrial, 203; districts, light and heavy industrial, 273. a. Regulations: Toronto, 265; Los Angeles, 267; New York City, 273; Milwaukee, 327; Alameda (Cal.), 341, 344, 345; Prussia, 473; East Birmingham (England), 508 note 20. 3. Light Industrial: use zoning regulations, 203; districts, zoning regu- lations, 205 note 14 (13); uses prohibited in district (Milwaukee), 327. 4. Heavy Industrial: use, zoning regulations, 203; use subdivided, 204; districts, zoning regulations, 205 note 14 (13); districts, exclu- sion of residences, criticism, 277 ; uses excluded entirely from White Plains, N. Y., 278 and note 27. Industrial Works, restrictions (Saxony), 476. See also ZONE REGU- LATIONS. Industries, distribution, function of state planning, 8; business districts (New York City), 268-269; distribution as related to possible regional planning by United States, 541. See also BUSINESS USES AND DISTRICTS; PLANNING; STATES; UNITED STATES GOVERNMENT. Inquests, see PLAN. Installment Plan, purchase by city, avoidance of debt limit, 362; payment of benefit assessment, 365. See also BENEFIT ASSESSMENTS; CITIES AND TOWNS. Institute, American City Planning, see AMERICAN CITY PLAN- NING INSTITUTE. Interference, by city with abutter's rights in street, 173. See also LAND- OWNERS; STREETS AND HIGHWAYS. International Planning, see PLANNING. Interpretation of Ordinances, New York City zoning resolution, 320; Alameda (Cal.) ordinance. 352. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; ORDINANCES. Interstate Commerce, see UNITED STATES GOVERNMENT. Interstate Planning, see PLANNING. Interstate Railroads, see TRANSPORTATION. Investigations, preliminary to plan, how far necessary, i note 2 (sb) ; planning activities, function and powers of United States, 542 note 9; planning activities, function of state, 543. 552; inquests, see PLAN. See also STATES; UNITED STATES GOVERN- MENT. Involuntary Replotting, umier Lex Adickes, 107. See also LEX ADICKES; REPLOTTING. Ireland, English planning law not in force, 510. Irrigation Laws, analniiv to rcplotting as valid exercise of police power, 143- See also POLICE POWER; REPLOTTING. Irrigation Projects, land condemnation, 15. See also EMINENT DO- MAIN. Island Dependencies of United States, application of constitutional limitations. 536 note 2. See also CONSTITUTIONAL AND TUTORY PROVISIONS; UNITED STATES GOVERN- MENT. Italian Quarters, see RACIAL ZONING. INDEX 693 Italy, excess condemnation, statutes, 67 note 10; zone condemnation, 8p; legislation for promotion of beauty, 396 note 24; outdoor advertis- ing, 420 note 72; planning law, administration, 444-446; street plans, "regulatory" and "extension," 445 ; expropriation law of 1865, 465- 466. See also ADMINISTRATION; BEAUTY, PROMOTION OF; CONSTITUTIONAL AND STATUTORY PROVISIONS; EXCESS CONDEMNATION; OUTDOOR ADVERTISING; STREETS AND HIGHWAYS; ZONE CONDEMNATION. Japan, zoning, 211; legislation for promotion of beauty, 396 note 24. See also BEAUTY, PROMOTION OF; ZONING. Jerusalem, planning ordinance not modeled on English Act, 510 note 27. Jewish Quarters, see RACIAL ZONING. Joint Improvements, compulsory, under police power, analogy to re- plotting, 143, 144, 146. See also POLICE POWER; REPLOT- TING. Joint Use, facilities by competing utilities, 168. See also PUBLIC UTILITIES; TRANSPORTATION. Jurisdiction, see ADMINISTRATION. Juvenile Delinquency, lack of bulk regulation, effect, 195. See also BULK ZONING; ZONE REGULATIONS. Kansas City, benefit assessments for park construction, 369 note 16. See also BENEFIT ASSESSMENTS; ORDINANCES; PARKS AND PARKWAYS. Karlsruhe, bulk zoning, 216; zoning regulations, 263 (No. 3). See also BULK ZONING; ORDINANCES; ZONE REGULATIONS. Kingsway (London), architectural restrictions, 73. See also BEAUTY, PROMOTION OF. Kiosks, outdoor advertising (France), 420. See also OUTDOOR AD- VERTISING. Kopingar, or urban districts (Sweden), 463 note 29. See also CON- STITUTIONAL AND STATUTORY PROVISIONS; PLAN- NING; ZONING. LAND (PRIVATE): i. In General; 2. Classification; 3. Agricul- tural Land; 4. Building Land; 5. Urban Land; 6. Scenic Land; 7. Development; 8. Undeveloped Areas; 9. Unused Lands; 10. Acquisition by City; n. Value; 12. Taxation. Cross-references: AREA LIMITATIONS AND DISTRICTS (i); BEAUTY, PROMOTION OF (11) ; BULK ZONING (5); CITIES AND TOWNS (5, 7) ; EMINENT DOMAIN (i, 2, 4, 5) ; ENGLAND (i) ; EXCESS CONDEMNATION (6, 7, 8); HAR- BORS AND WATER FRONT (6) ; HEIGHT LIMITATIONS AND DISTRICTS (i) ; MASSACHUSETTS (2); NEW YORK (3); PARKS AND PARKWAYS (i, 5); PLAN (3); RECOM- MENDATIONS AND SUGGESTED REFORMS (2, 6, n, 12); RESIDENTIAL USES AND DISTRICTS (9) ; TAXATION (i, 2, 3, 4, 5) ; UNITED STATES (3) ; ZONE REGULATIONS (i). 1. In General: function of city planning, 5; power to regulate use, 12. 2. Classification: residential and agricultural (Canada), 41. 3. Agricultural Land: classification and taxation (Canada), 41; taxa- tion (Hartford, Conn.), 42 note 21; belonging to United States, possibilities of regional planning, 541 ; brought within city limits, agreement with owners as to taxes, 546. 694 INDEX 4. Building Land: subdivision, part of city plan. 27; subdivision, part of city plan (Sweden), 84; plotting in Europe, 84. 5. Urban Land: classification and taxation (Philadelphia), 42 note 21. 6. Scenic Land: expropriation (New Zealand), 382 note 3. 7. Development: submission of plan of minor streets required (Zurich), 84; effect of benefit assessments, method of payment, 366; effect of taxing capital (as in United States) or income (as in Europe), 366; plan required (England), 498, 504; submission of plan by landowner, East Birmingham (England) scheme, 507 note 20; after adoption of plan (Canada), 511; plan required (France), 515, 517. 8. Undeveloped Areas: control of building (Prussia), 445-457; build- ing prohibited (Germany), 461; restriction on building (Sweden), 462; subject to Planning Act of 1909-1919 (England), 500. 9. Unused Lands: planning for, 3; tax on, local taxation in Germany, England and United States, 358 ; use regulated, 566 note 43 ; not regulated under Massachusetts law, 566 note 43. 10. Acquisition by City: land requirements of modern city, 43; cost controlled by eminent domain, 44 ; by consent of owner where land not obtainable by condemnation, 57 note 20; land subject to con- demnation under excess condemnation statutes, 131 ; expropriation for planning purposes (Prussia), 452; expropriation for planning purposes (England), 525. 11. Value: land taken under eminent domain, determination, 46-51; in- fluence of excess condemnation, 139; influence of lack of bulk regu- lation, 195; influence of tall buildings, 196-197; influence of use zoning, 199-200; enhancement not sufficient basis for zoning regula- tions under police power, 204 note 14 (4) ; influence of zoning regu- lations, 207-209; influence of parks, 369-371; increment taxation, dis- cussion, 373-375 ; influence of outdoor advertising in residential neighborhoods, 414. 12. Taxation: land taxation in Germany discussed, 366-367. See also supra this title AGRICULTURAL LAND; URBAN LAND; UN- USED LANDS; VALUE. Land Clauses Act, England, 71-72. See also CONSTITUTIONAL AND STATUTORY PROVISIONS. LANDOWNERS: i. In General; 2. Agreements with City; 3. City Plan; 4. Private Development Plan. Cross-references: EMINENT DOMAIN (3); EXCESS CON- DEMNATION (8); HARBORS AND WATER FRONT (8); LAND O. 7. to) ; MASSACHUSETTS (2, 7) ; NEW YORK < n : ORDINANCES (i); PLAN (i, 3. 4); PUBLIC IMI'RnV!-- MENTS (3); RECOMMENDATIONS AND SUGGESTED RE- FORMS (3. 6. 10, ii, 12, 14); REPLOTTING (3); STREETS AND HIGHWAYS (5,6.9); TRANSPORTATION (4, 7); USE LIMITATIONS AND DISTRICTS (i); ZONE CONDEMNA- TION (2). i. In General: rights in streets, 173-175; right against transportation company for its use of streets, 176; effect on rights of building lines (I Vim.). 587. a. Agreements with City: use zoning, le^al and illegal methods. 266 and note 8; payment of cost of planned streets (\Vurttembern am! Baden), 462; taxes, after opposition to extension of city limit- 3. City Plan: right to propose (Saxony), 459; notice of (Saxonv). 482; cost of execution, payment (England). 504-505; effect of .i.lop tion (France). 51 7. 534: effect of adoption of riehts of subsc- INDEX 695 quent owners, 507 note 20; power to prevent proposed amendments, 568. 4. Private Development Plan: submission, requirements (England), 504; submission, East Birmingham (England) scheme, 507 note 20. "Large Tenement House," definition, Dusseldorf ordinance, 252. See also RESIDENTIAL USES AND DISTRICTS. Law, Equal Protection of, see EQUAL PROTECTION OF LAW. Laws, see CONSTITUTIONAL AND STATUTORY PROVISIONS. Layout of Streets, see STREETS AND HIGHWAYS. Lease, superfluous lands pending sale, excess condemnation, 73. See also EXCESS CONDEMNATION; LAND. Leased Land, eminent domain, value, 47. See also EMINENT DO- MAIN; LAND. Legal Questions, unsettled, zoning, 291-292. Legal Restrictions, effect on cost of public improvements, 43; function and value in condemnation proceedings, 44. See also EMINENT DOMAIN; PUBLIC IMPROVEMENTS. Legality of zoning regulations discussed, 281-292. See also CONSTI- TUTIONAL AND STATUTORY PROVISIONS; DECISIONS; ZONE REGULATIONS. Lessening of nonconformity in structures, 202-204. See also NONCON- FORMING BULKS; NONCONFORMING STRUCTURES; NONCONFORMING USES. Letchworth (England), development as affecting private use of land, 12. See also CITIES AND TOWNS; LAND. Lewis, Eminent Domain, Pennsylvania rule allowing encroachments on mapped streets, 31 note 7; debiting value of improvement in con- demnation proceedings, 48 note n. See also EMINENT DOMAIN; ENCROACHMENTS. Lex Adickes, influence on replotting in Prussia, 87, 451 ; statutory provi- sions, 106-127. See also ADICKES; REPLOTTING. Liability of Transportation Company, to abutter for use of streets, 176. See also LANDOWNERS; TRANSPORTATION. Light, purpose of excess condemnation, 133 ; tall buildings, 196 ; reason for zoning regulations, 204 note 14 (4) ; Dusseldorf ordinance, pre- venting obstructions, 253. See also AREA LIMITATIONS AND " DISTRICTS; CONSTITUTIONAL AND STATUTORY PRO- VISIONS; EASEMENTS; EXCESS CONDEMNATION; TALL BUILDINGS; ZONE REGULATIONS. Light Industrial Use, see INDUSTRIAL USES AND DISTRICTS. Limitations, constitutional, see CONSTITUTIONAL AND STATU- TORY PROVISIONS; on amount of benefit assessments, see BENEFIT ASSESSMENTS; on area of buildings, see AREA LIMITATIONS AND DISTRICTS; on height of buildings, see HEIGHT LIMITATIONS AND DISTRICTS; on municipal in- debtedness, see CITIES AND TOWNS; on tax rate, see TAXA- m TION. Limits of City, extension into undeveloped areas, 546. See also CITIES AND TOWNS. Living Quarters, congested, reason for zoning regulations, 204 note 14 (4). See also ZONING REGULATIONS. Loading Goods, across sidewalk, traffic regulations, 183. See also POLICE POWER; ZONE REGULATIONS. Loans to City, see CITIES AND TOWNS. Local Assessments, see BENEFIT ASSESSMENTS. 696 INDEX Local Conditions, effect on police power and power of eminent domain, 20; effect on right to compensation for invasion of property rights, 25. See also EMINENT DOMAIN; POLICE POWER. Local Governments, power to zone, necessity of specific authorization, 281; creation by state for local planning, 545; with planning juris- diction only for areas larger than and including cities, reform sug- gested, 547. See also CITIES AND TOWNS; PLANNING; PLANNING COMMISSIONS; RECOMMENDATIONS AND SUGGESTED REFORMS. Local Planning, see PLANNING. Local Self-Gpvernment, see CITIES AND TOWNS. Local Taxation, methods in Germany, England and United States, 358. See also TAXATION. Localities, preservation of character (Germany), 405. See also ZONE REGULATIONS. Location, features referred to commission, jurisdiction, 562; buildings, power of art commission, 565 ; works of art, buildings, etc., control by planning commission (Cleveland, Ohio), 587. See also AD- MINISTRATION; BEAUTY, PROMOTION OF; PLANNING COMMISSIONS. Locations of Transportation Company, city's power to control, 164. See also CITIES AND TOWNS; TRANSPORTATION. Lodging Houses, law regulating occupancy (England), 81. See also HOUSING. Long Term Contracts between city and transportation company, 166 and note 7. See also CITIES AND TOWNS; TRANSPORTATION. Lord Shaftesbury Acts, 1851, occupancy of lodging houses and erection of municipal houses (England), 81. See also HOUSING; MUNIC- IPAL HOUSES. Los Angeles, building regulations retroactive, 191 note 2; nonconformity of structures to zoning plan, 201 ; zoning regulations, 267. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; NONCONFORMING STRUCTURES; PLAN; ZONE REGULA- TIONS. Lots, see SUBDIVISIONS. Madras, planning law in part modeled on English act, 510 note 27. See also CONSTITUTIONAL AND STATUTORY PROVISIONS. Maintenance of Streets, see STREETS AND HIGHWAYS. Management, see ADMINISTRATION. Mandamus, to compel authorities to make or execute plan (England), 526. See also PLAN. Mandatory Statutes, see CONSTITUTIONAL AND STATUTORY PROVISIONS. Manitoba, excess condemnation, statute, 67 note 10; Town Planning Act, 265 note 3; self-supporting enterprises by city, debt limit, 361 note 3; benefit assessments, construction or extension of public utilities, 372 note 20: planning law modeled on English act, 510 note 27. See also BEAUTY. PROMOTION OF; CITIES AND TOWNS; CON- STITUTIONAL AND STATUTORY PROVISIONS; EXCESS CONDEMNATION; PUBLIC UTILITIES. Manufacturing Uses and Districts, Frankfort (Germany), 214; exclu- sion from residential districts, constitutionality, 287 note 36; East Birmingham (England) scheme. 508 note 20. See also INDI'S TRIAL USES AND DISTRICTS; RESIDENTIAL USES AND DISTRICTS. INDEX 697 Mapped Streets, encroachments, various methods of preventing, 28-39; protection, new method suggested, 34. See also ENCROACH- MENTS; STREETS AND HIGHWAYS. Maps, content, preparation, adoption, alteration, commission's powers and duties, 561; city plan (New York City), 561 note 30; preparation, adoption, alteration (New York's statute for cities), 582-583; refer- ence to planning commission (New York statute for cities), 582- 583. See also PLAN; PLANNING COMMISSIONS. Margins, Grass, see PARKS AND PARKWAYS. Market Value, measure of damages in condemnation proceedings 47. See also EMINENT DOMAIN. Markets, Wholesale, proposed port zoning (New York City), 278 note 28; public, see PUBLIC MARKETS. See also HARBORS AND WATER FRONT. Marshall, C. J. (U. S. Supreme Court), presumption of validity of statute, 22. See also CONSTITUTIONAL AND STATUTORY PROVISIONS. Maryland, excess condemnation, 130 note 15. See also EXCESS CON- DEMNATION. MASSACHUSETTS: i. Constitutional Amendments; 2. Excess Condemnation; 3. Setbacks; 4. Exclusion of Tenements; 5. Lo- cality Restrictions; 6. Housing; 7. Amendment of City Plan; 8. Boards and Commissions. Cross-references: ADMINISTRATION (3); BEAUTY, PRO- MOTION OF (9); CONSTITUTIONAL AND STATUTORY PROVISIONS (3, 5) ; EXCESS CONDEMNATION (4, 5) ; HEIGHT LIMITATIONS AND DISTRICTS (4) ; LAND (9) ; OUTDOOR ADVERTISING (2, 5) ; PARKS AND PARKWAYS (4) ; PLAN (2, 5, 7) ; PLANNING (n) ; PLANNING COMMIS- SIONS (4, 5) ; RESIDENTIAL USES AND DISTRICTS (3) ; SETBACKS (2, 4) ; STREETS AND HIGHWAYS (2) ; ZON- ING (2). 1. Constitutional Amendments: authorizing systematic zoning, limi- tation to regulations of buildings, 289, 293, 566 note 43 ; authorizing regulation of advertising in public places, 395 note 22. See also infra this title EXCESS CONDEMNATION. 2. Excess Condemnation: early legislation (1904), condemnation of remnants, 67 note 10, 128; constitutional amendment (1911), 131, 148; power extended to towns, 131 note 17; only land sufficient for building lots, 131 note 21; owner's right to repurchase, 132; decision on constitutionality, 134; statute authorizing, Worcester (street specified), 153. 3. Setbacks: statute, 177 note 6, 184. 4. Exclusion of Tenements: from districts as part of systematic zoning, constitutionality, 289. 5. Locality Restrictions: heights of buildings about Copley Square, Boston, 385-386; building lines and other restrictions on land about parks, 387 note 13. 6. Housing: for people of limited means, condemnation authorized, 57 note 20. 7. Amendment of City Plan: power of property owners to prevent, 568 note 50. 8. Boards and Commissions: Metropolitan planning authority, law and practice, 547; Homestead Commission, expert assistance in plan- ning to local communities, 553 note 18; planning commissions with advisory powers only, 558 note 26 ; consolidation of planning and park 698 INDEX boards, criticism, 562 note 35 ; under proposed Metropolitan Plan- ning Act, 589-504. Massachusetts Supreme Judicial Court, power of state to limit height of buildings about Copley Square, Boston, 386-387. See also HEIGHT LIMITATIONS AND DISTRICTS. Maximum Tax Rate, fixing, method in United States, 359. See also TAXATION. Mayor's Billboard Advertising Commission (New York City), pro- gressive tax on outdoor advertising, 411 note 63 (at pp. 417, 418). See also OUTDOOR ADVERTISING. McAneny, Pres. Borough of Manhattan, removal of street encroach- ments, 175. See also ENCROACHMENTS. McQuillin, Municipal Corporations, favorable outlook for legislation to promote beauty, 422. See also BEAUTY, PROMOTION OF. Measure of Damages, condemnation proceedings, market value, 47. See also EMINENT DOMAIN". Membership, art commission, see BEAUTY, PROMOTION OF; planning commission, see PLANNING COMMISSIONS. Merchandise, unloading or storing on streets, abutter's rights, 175. See also LANDOWNERS; STREETS AND HIGHWAYS. Methods, enforcement of city plan, see PLAN ; obtaining compensation for land taken, see EMINENT DOMAIN; preventing encroach- ments, see ENCROACHMENTS. Metropolitan Planning, see PLANNING. Milwaukee, area limitations, families per area unit, 277 note 24 ; setbacks, 280 note 31 ; zoning ordinance, 324-341. See also AREA LIMITA- TIONS AND DISTRICTS; ORDINANCES; SETBACKS; ZONE REGULATIONS. Mining Developments, condemnation of land, 15. See also EMINENT DOMAIN. Ministry of Health, control and powers (England), 501-502. Minneapolis, planning department in charge of planning commissions, 576; planning law, 576-578. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; ORDINANCES; PLANNING COMMISSION. Minnesota, Planning Law of 1919, 576-578. See also CONSTITU- TIONAL AND STATUTORY PROVISIONS. Minor Residential Streets, see SETBACKS, 178. See also SETBACKS ; STREETS AND HIGHWAYS. Missouri, zoning invalid unless authorized by statute, recent decision dis- cussed, 202 note 443; commission to report on proposed amendments to city plan. 568 note 48. See also DECISIONS; PLAN; ZONING. Mistakes, New York Citv zoning, correction by other cities, 273. See also NEW YORK CITY; ZONING. Modification, zoninp regulations in cases of hardship (New York), \2O. See also APPEAL; BOARDS OF APPEALS; EXCEPTIONS. Monopoly, public utility, 168; government, see GOVERNMENT M< '- NOPOLY. See also PUBLIC UTILITIES; TRANSPORTA- TION. Monthly Ticket, city and suburban transportation, 165. See also TRANS- PORTATION. Monuments, definition in English law, 440; location, reference to plan- nine commission (New York). 581. See also ANCIENT M I s ; PLANNING mxp'issi- Mortgaged Property, purchase by city, debt limit, 362. See also CITIES A NO TOWNS. INDEX 699 Mortgages, effect on sales of land subject to increment tax (Germany), 374- See also LAND; TAXATION. Motion Picture Districts, Los Angeles, 267 note o. See also DIS- TRICTS. Movable Objects, historic and artistic value, "classification" (France), 398. See also BEAUTY, PROMOTION OF. Multiple Dwellings, exclusion from single family house districts, 205 note 14 (13); residence districts (New York City), 268. See also RESIDENTIAL USES AND DISTRICTS. Munich, zoning regulations, 264 (No. 4). See also ORDINANCES; ZONE REGULATIONS. Municipal Borrowing, see CITIES AND TOWNS. Municipal Centers, regulation of buildings (Saskatchewan), 392 note 16. See also CITIES AND TOWNS. Municipal Enterprises, source of revenue, 357-358; self-supporting, debt limit, 361 and note 3. See also CITIES AND TOWNS. Municipal Forests, legality, 383 note 6. See also CITIES AND TOWNS. Municipal Houses, working classes (England), 81. See also CITIES AND TOWNS. Municipal Indebtedness, see CITIES AND TOWNS. Municipal Ownership, public utilities, 167 ; provision in franchises for taking over public utilities, 169-170. See also CITIES AND TOWNS; FRANCHISES; PUBLIC OWNERSHIP; PUBLIC UTILITIES. Municipal Plan and Art Commission Act, New Jersey, 578-581. See also CONSTITUTIONAL AND STATUTORY PROVISIONS. Municipal Property, source of revenue, 357-358. See also CITIES AND TOWNS. Municipal Railroad, excess condemnation, 61. See also CITIES AND TOWNS. Municipal Revenue, sources, 357. See also CITIES AND TOWNS. Municipal Taxation, methods in Germany, England and United States, 358. See also CITIES AND TOWNS; ENGLAND; GERMANY; TAXATION; UNITED STATES. Napoleon I, decree 1810, origin of use zoning, 210 note i. See also USE ZONING. Napoleon III, statutes for sanitation of cities (France), 76. National Art Commissions, powers, 565. See also BEAUTY, PROMO- TION OF. National Control, see UNITED STATES GOVERNMENT. National Highways, possibilities of national planning, 541. See also STREETS AND HIGHWAYS; UNITED STATES GOVERN- MENT. National Parks, planning power of United States, 9; possibilities of regional planning, 541. See also PLANNING; UNITED STATES GOVERNMENT. National Planning, see PLANNING. Navigable Waters, riparian owners, title, 170; definition, 171; riparian owner's right to fill to bulkhead line, 171 note 11; riparian owner's preferred right to purchase tide lands, 171 note n; national and state jurisdiction, 537- See also HARBORS AND WATER FRONT; RIPARIAN OWNERS. Navigation, planning power of United States, 9. See also UNITED STATES GOVERNMENT. 700 INDEX Nebraska, planning commissions, powers, 558 note 26. See also PLAN- MXG COMMISSIONS. Necessity of city plan, 27; of fixing general features only of city plan, 28; of municipal borrowing, 359-360. See also CITIES AND TOWNS; PLAN. Negro Zoning, constitutionality, decisions, 287 note 34. See also RACIAL ZONING. Neighborhoods, prevailing character, zoning in built up districts, 202 ; preservation of character (Germany), 405. See also DISTRICTS; ZONING. Neighborhood Planning, definition, purpose, execution, 205. See also PLANNING Net Income, payment by city for improvements, avoidance of debt limit. 362. See also CITIES AND TOWNS. New Brunswick (Canada), planning law modeled on English act, 510 note 27. See also CONSTITUTIONAL AND STATUTORY PROVISIONS. NEW JERSEY: i. In General; 2. Commissions; 3. Districts. Cross-references: BEAUTY, PROMOTION OF (7); CONSTI- TUTIONAL AND STATUTORY PROVISIONS (4, 5, 7) ; EX- CESS CONDEMNATION (5) ; HARBORS AND WATER FRONT (3, 5); NEW YORK (i); PLAN (2); PLANNING (6); PLANNING COMMISSIONS (2, 4, 5); PUBLIC IM- PROVEMENTS (2). 1. In General: excess condemnation in Newark, 149; zoning law for cities, 298-301; planting of shade trees, 383 note 6; port authority, 549-55O and notes 14 and 15, 597-603 ; Municipal Plan and Art Commission Act, 578-581. 2. Commissions: Harbor Commission, supervision of harbors, 550 note 16; planning, with advisory powers only, 558 note 26; planning and art, combined, 565 note 42; to report on proposed amendments to city plan, 567 note 46, 568 note 48. 3. Districts: recent decision on one family house districts, discussion, 292 note 44a ; zoning law originally confined to location of trades and industries, residences not included, different now, 566 note 43. NEW YORK: i. In General; 2. Excess Condemnation; 3. Beauty, Promotion of; 4. Setbacks. Cross-references: BEAUTY, PROMOTION OF (7); BOARDS OF APPEALS (3) ; CONSTITUTIONAL AND STATUTORY PROVISIONS (5); EXCESS CONDEMNATION (2, 4, 5): HARBORS AND WATER FRONT (5); HEIGHT LIMITA- TIONS AND DISTRICTS (6) ; PARKS AND PARKWAYS (2. 6, 7, 8, 10) ; PLAN (2, 4) ; PLANNING COMMISSIONS 4, 5); RESIDENTIAL USES AND DISTRICTS (i); SIT BACKS (2) ; STREETS AND HIGHWAYS (->. 8): TAXATION (4); TRANSPORTATION (5); USE LIMITATIONS AND DISTRICTS (2); ZONE REGULATIONS (3). i. In General: Port authority, New York and New Jersey, 10, 549- 550 and notes 14 and 15, 597-603; procedure in condemnation pro- ceedings, constitutional amendment allowing change in tribunal, 53 ; zoning law under police power for Westchester County requiring notice to property owners, 281 note 33 ; zoning law for New York City, 293-295, 566 and note 43 ; City and Village Planning Law, 295- 298, 581-584; statute authorizing benefit assessment for construction of transit lines, 372 note 22; proposed increment taxation law, 374 and note 24; proposed state and local housing and planning boards, INDEX 701 553 note 18; power of property owners to prevent amendment to city plan, 568. 2. Excess Condemnation: origin, 70; from enactment of statute (1812) to decision declaring it unconstitutional (1834), 128, 133; constitutional amendment authorizing excess condemnation, 131, 149; statute authorizing excess condemnation in New York City, 153. 3. Beauty, Promotion of: recognition in law as public purpose, 382 note 2; Palisades Interstate Park, condemning land, 390 note 15; Clinton Avenue case, park strips along highways, 390 note 15; pro- posed progressive taxation of outdoor advertising, 411 note 63. 4. Setbacks: statute, 185-189. NEW YORK CITY: i. In General; 2. Legislation; 3. Board of Es- timate; 4. Building Zone Resolution; 5. Plan; 6. Limitations and Districts; 7. Setbacks; 8. Excess Condemnation; 9. Tall Build- ings; 10. Water Front; n. Subways; 12. Debt Limit; 13. Bene- fit Assessments; 14. Art Commissions; 15. Zoning Committee. Cross-references: ADMINISTRATION (5, 6); AREA LIMITA- TIONS AND DISTRICTS (2, 3, 6) ; BEAUTY, PROMOTION OF (6, 7) ; BOARDS OF APPEALS (3) ; BULK ZONING (2) ; BUSINESS USES AND DISTRICTS (2, 3); CONSTITU- TIONAL AND STATUTORY PROVISIONS (4, 5) ; HARBORS AND WATER FRONT (5); HEIGHT LIMITATIONS AND DISTRICTS (3, 4, 6) ; INDUSTRIAL USES AND DISTRICTS (2); NEW YORK (i, 2); ORDINANCES (2); PLAN (2, 7); PLANNING COMMISSIONS (2) ; RESIDENTIAL USES AND DISTRICTS (3, 4, 5, 9, 10) ; SETBACKS (i, 2) ; STREETS AND HIGHWAYS (3); TRANSPORTATION (7); UNITED STATES GOVERNMENT (i) ; USE LIMITATIONS AND DISTRICTS (2, 4); ZONE REGULATIONS (2, 3, 4); ZON- ING (4). 1. In General: zoning, importance, 272; zoning, faults, 273. 2. Legislation: Tenement House Law, fire proof regulations, 192; zoning law, 29.\-J95 ; zoning law permissive, 566. See also infra this title ART COMMISSIONS; EXCESS CONDEMNATION; SET- BACKS. 3. Board of Estimate : power under zoning law, 293-295 ; power to alter regulations, 293 ; power to make benefit assessments for cost of transit lines, 372 note 22; appointment of planning committee, 555 note 21 ; power to act on city plan reported by commission, 567. 4. Building Zone Resolution: provisions discussed, 268-276; consti- tutionality upheld, 290; provisions, 305-323. 5. Plan: protection, proposed charter amendment requiring permit to build in mapped street, 35 note 16; preparation, report to Board of Estimate, 271-272, 567; map, 561 note 30. 6. Limitations and Districts: use districts, 268; unrestricted use dis- tricts, 268, 269; nonconforming bulks and uses, 269; garages, 269; height districts, 270; area districts, 270; power under charter to create single family house districts, 275 note 21 ; garden apartments, significance, 276 note 23 ; limitation of heights of buildings about proposed Court House, 387 note 13; height limitations, towers, effect of setbacks, irregular sky line, 402 note 43. 7. Setbacks: statute, 180 note 7; charter amendment, power to estab- lish, 185, 189; part of official map, 561 note 31. 8. Excess Condemnation: charter amendment, 153. 9. Tall Buildings: congestion in the lower city, result of lack of regulation, 194; control of peril by zoning possible, 106. 702 INDEX 10. Water Front: inalienability except by state, recapture clause, 172 note 12; suggestions for port zoning, 278 note 28. 11. Subways: franchises, discussion, 169; construction under post office, federal control, 536. 12. Debt Limit: self-supporting enterprises not within debt limit, 361 note 3. 13. Benefit Assessments: area of assessment, 368 note 15; for park construction, 369; for construction of transit lines, 372 note 22. 14. Art Commission: New York City statute, 584-7; powers, 586-7. 15. Zoning Committee: functions, 569 note 51. New York Court of Appeals, police power, influence of usage and pub- lic opinion, 19. See also POLICE POWER. New Zealand, expropriation of scenic land, 382 note 3. See also BEAUTY, PROMOTION OF; EMINENT DOMAIN. Newark (N. J.), charter amendment, excess condemnation, 149. See also CITIES AND TOWNS; EXCESS CONDEMNATION; ORDI- NANCES. Newsstands, use of streets, legality, 176. See also STREETS AND HIGHWAYS. Nichols, Eminent Domain, expenditures of public money for artistic purposes, educational value, 389-390. See also BEAUTY, PROMO- TION OF; EMINENT DOMAIN. Nonconforming Bulks, method of dealing with, 202-203 ; New York City. 269, 322-323; Milwaukee. 339, 340; Alameda (Cal.), 355. See also ZONE REGULATIONS. Nonconforming Structures, existing when building line established, re- moval, renewal, repairs, 177, 201-204; problem in United States, 200; method of dealing with, 201-204, 206 note 14 (14) ; alterations. 206 note 14 (143 and e) ; enlargement, 206 note 14 (143); destruction, East Birmingham (England) scheme, 508 note 20; no compensation when condemned (Penn.), 588. See also ZONE REGULA- TIONS. Nonconforming Uses, methods of dealing with, 203-204 ; changes, 206 note 14 (i4c. d, f), 269; extension, 206 note 14 Ci^b); New York City. 269, 310-311, 322-323; Milwaukee, 327-328, 330. 340; Alameda (Cal.), 345. 355; not a serious problem in England, 504, See also ZONE REGULATIONS. Non-Residents, membership on local planning commissions, 557. See also PLANNING COMMISSION'S. North Brumsgrove (England) scheme, houses to acre, 503 note 13. Notice of Hearing, condemnation proceedings, 50, 52. See also EMI- NENT DOMAIN; I. ANPOWNERS. Notice to Property Owners, zoning laws, impractical, 281 note 33: proposed plan (Sax.mv also O INSTITUTIONAL AND STATUTORY PROVISIONS; LANDONYX! K< . PLAN. Nova Scotia, planning law modeled on F.nnli-Oi act, -m imtc _>7. See also CONSTITUTIONAL AND STATUTORY PROVISIONS, Nuisances, abatement. Fast I'.irniingham ( Finland) scheme, 508 note 20. See also POLICE POY\ Number, buildings to acre (England). 503-50}; dwelling houses to acre. East I'.inninuham (England) scheme, 507 note -'(> : members of planning commission, =556-7. See also AREA LIMITATIONS AND DISTRICTS. PLANNING COMMISSION'S. Nursery Structures, residence distri : PLAN; PLANNING. Part of Tract, taking, measure of damages, 48. See also EMINENT DOMAIN. Partial Planning, function and advantages, 28; open to criticism, 28. See also PLANNING. Partial Zoning, disadvantages, 205 note 14 (8). See also ZONING. Party Walls, compulsory joint improvement, analogy to replottinp. i.n Sr also REPLOTTING. INDEX 707 Passaic River, menace to public health, 384 note 7. See also EMINENT DOMAIN; PARKS AND PARKWAYS; POLICE POWER. Passengers, transportation on surface lines, liability of company to abut- ting landowners, 176. See also LANDOWNERS; TRANSPORTA- TION. Payment, benefit assessments in instalments, 365; cost of executing plan (England), 504-505 ; cost of streets, East Birmingham (England) scheme, 506 note 20; of war damages (France), 514 note 34. See also DEVASTATED REGIONS; FRANCE. See also BENEFIT ASSESSMENTS; PLAN; STREETS AND HIGHWAYS. Penalties, see ADMINISTRATION. Pennsylvania, encroachments on mapped streets, 30; excess condemna- tion, constitutionality, 130 note 12, 131 note 19, 135; establishment of setbacks without compensation, 177 note 5 ; metropolitan plan- ning authority for suburban area, 547; expert assistance in plan- ning to local communities, 553 note 17; General Plan Act, 587-8; planning provision of State Highway Act, 588; Planning Act for Third Class Cities, 589; Suburban Metropolitan Planning Act, 594- 597; State Planning Bureau Act, 604-5. See also CONSTITU- TIONAL AND STATUTORY PROVISIONS; ENCROACH- MENTS; EXCESS CONDEMNATION; PLANNING; SET- BACKS; STREETS AND HIGHWAYS. Period in Force, plan, see PLAN. Permanent Commissions, see PLANNING COMMISSIONS. Permanent Improvements, financing by city, 359-360. See also CITIES AND TOWNS; PUBLIC IMPROVEMENTS. Permission to Locate, improvements in mapped streets, 34. See also BUILDING PERMITS; STREETS AND HIGHWAYS. Permissive Planning Statutes, see CONSTITUTIONAL AND STAT- UTORY PROVISIONS. Permit, Building, see BUILDING PERMITS. Personal Property Tax, local taxation in United States, 358. See also TAXATION; UNITED STATES. Philadelphia, establishment of setbacks without compensation, 177 note 5 ; self-supporting enterprises, debt limit, 361 note 3. See also CITIES AND TOWNS; SETBACKS. Picturesque Places, plans required (France), 515. See also BEAUTY, PROMOTION OF. Pier Head Lines, see HARBORS AND WATER FRONT. Piers, see HARBORS AND WATER FRONT. Pilotage, national and state regulation, 538. See also STATES ; UNITED STATES GOVERNMENT. Place des Vosges, establishment by Henry IV, 65. See also EXCESS CONDEMNATION; STREETS AND HIGHWAYS. PLAN (CITY): i. In General; 2. Preparation; 3. Adoption; 4. Amendment; 5. Content; 6. Duration; 7. Enforcement. Cross-references: ADMINISTRATION (5); AREA LIMITA- TIONS AND DISTRICTS (4); BEAUTY, PROMOTION OF (ii. 12); BOARDS OF APPEALS (i) ; BULK ZONING (i) ; CITIES AND TOWNS (i, 3) ; EMINENT DOMAIN (6) ; ENG- LAND (3); GERMANY (5); HARBORS AND WATER FRONT (3) ; LAND (4, 7) ; LANDOWNERS (3, 4) ; MASSA- CHUSETTS (7) ; NEW JERSEY (2) ; NEW YORK (i) ; NEW YORK CITY (3, 5) ; PARKS AND PARKWAYS (2. 8. 9, 10) ; PLANNING COMMISSIONS (2) ; PUBLIC UTILITIES (i) ; RECOMMENDATIONS AND SUGGESTED REFORMS (2, 7) ; ;o8 INDEX SETBACKS (i) ; STREETS AND HIGHWAYS (3, 14) ; TAXA- TION (i); TRANSPORTATION (i, 5); ZONE REGULA- TIONS (i); ZONING (i). i. In General: necessity, 27; relation of public utilities to, 161 ; effect of incidence of taxation on, 358; provision of Saxon law, 476; effect (England), 507-509; effect on rights of abutting landowners (France), 534; regional for United States, advantages and difficul- ties, advisory suggested, 541 ; specific, for specific improvements (Minnesota), 577. a. Preparation: of plan of building development by private interests, see LAND; survey, details, 202, 205 note 14 (6); New York City zoning plan, 271-272; essential provisions planning law, 444; Italy, 446, 465; Prussia, 452; Saxony, 479; cost (Canada), 512; manda- tory (France), 515, 529, 533; cost (France), 516, 530; mandatory (England), 499, 501, 527; Town Planning Acts, 1909-1919 (Eng- land), 519-521; default, mandamus (England), 526; by commis- sion, report to city council, 567; Minnesota, 577; New Jersey, 581; planning commission (New York), 582; by planning commission (Geveland, O.), 587; survey of metropolitan district (proposed Massachusetts law), 590; by Port Authority for port of New York, 600 ; statutes tabulated, 632. 3. Adoption: (In General) essential provisions of planning law, 444; effect on land, 453 ; report to city council, action thereon, 567 ; statutes tabulated, 632; (European Practice) adoption, promulga- tion, effect on private property (Italy), 445, 446, 465; objections, adoption, effect on private lands (Prussia), 453, 469; adoption, pro- mulgation, effect on private lands (Sweden), 462; Saxony, 479; adoption, mandatory (England), 499, 501, 519-521; effect on subse- quent owners. East Birmingham (England) scheme, 507 note 20; cost (Canada), 512; inquest, adoption effect on landowner's rights (France), 517, 534- 4. Amendment: difficulty in securing, power of property owners to prevent, procedure, 568; reference to planning commission (New York), 583. 5. Content: general discussion, 27; division of city into zones, 205 note 14 (6) ; Prussia, 452; Saxony, 459, 477; Sweden, 462; England, 502-503, 521-522, 528-529; France, 515, 529; streets and parks (Penn.), 588; plan for metropolitan district under proposed Massachusetts law, 590. 6. Duration: Italy, 446, 465; Prussia, 455. Term of office of plan- ning commissioners, see PLANNING COMMISSIONS. 7. Enforcement: general discussion, 28-30; provisions essential in planning law, 444; protection from encroachments, 28-39; sugges- tions, 34; protection (Conn.), 36 note 17; function of board of ap- peals, 37-39; against transportation company, 164; New York City, 321-322; Milwaukee, 338; Alameda (Cal.), 352; Prussia, 455; Sweden, 462; Saxony, 482; cost (England), 504-505; cost (Canada), 512; default, mandamus (England), 526; by Metropolitan Planning Board under proposed Massachusetts law, 591-2. Planned Streets, see STREETS AND HIGHWAYS. PLANNING: i. In General; 2. City; 3. Town; 4. Village; 5. Neigh- borhood; 6. County; 7. State; 8. Interstate; 9. National; 10. In- ternational; ii. Metropolitan; 12. Regional; 13. Rural. .-references: AHMIXISTRAT! 1 IMITA- TIONS AND DISTRICTS (4); CITIKS AND TOWNS (i, 5); CONSTITUTIONAL AND STATUTORY PROVISIONS (i, 4); INDEX 709 DOMAIN (I> 3> } ENGLAND (2); HARBORS AND WATER FRONT (3); HEIGHT LIMITATIONS AND DISTRICTS (i); LAND (i, 3, 4, 9); MASSACHUSETTS (8); ORDINANCES (i) ; PARKS AND PARKWAYS (2); PLAN- NING COMMISSIONS (i, 3); POLICE POWER (i, 2) ; PUB- LIC IMPROVEMENTS (i) ; RECOMMENDATIONS AND SUG- GESTED REFORMS (i, 2, 19); RESIDENTIAL USES AND DISTRICTS (3); STATE (2, 3, 4); TRANSPORTATION (i, GOVERNMENT 0. 3); ZONE CON-' 1. In General: partial compared with comprehensive, 28; jurisdiction and function of state, 543, 545; supervision by state, 550-2 and note 16. 2. City: definition, i; distinguished from city construction, 4; scope, general co-ordination rather than determination of details, 4; rela- tion to housing, 5; relation to rural planning, 6; relation to county planning, 7; relation to interstate or international planning, 9; city planning law, definition, 10; relation to federal power over inter- state transportation, 540; beyond city limits, method of giving con- trol to city criticized, 546; city planning administration. See AD- MINISTRATION. 3. Town: definition, i; Town Planning Acts (Canada), 265; Town Planning Acts, 1909 and 1919 (England), 518-529. 4. Village: law applicable, 2. 5. Neighborhood: definition, purpose, execution, 205. 6. County: definition, 7; relation to city planning, 7; relation to regional planning, 7; New Jersey, 603. 7. State: definition, 7; relation to regional planning, 7; scope dependent on federal constitution, 8; distinguished from national planning, 8, 9; harbors, state's power subject to federal regulations, 540. 8. Interstate: definition, 9; relation to city and regional planning, 9; interstate metropolitan planning, see infra this title, METROPOLI- TAN PLANNING. See also BRIDGES. 9. National: definition, 8; distinguished from state planning, 8. 10. International: definition, 9; relation to city and regional planning, 9. See also BRIDGES. 11. Metropolitan: definition, 7, 545; relation to regional planning, 7; difficulties, 545 ; authority for areas larger than and including cities, reform suggested, 547; authority for suburban area (Pennsylvania), 547 ; interstate, various devices, single permanent authority suggested, 548-550; Metropolitan Planning Act (proposed) (Mass.), 589-594; Metropolitan Planning Law (Penn.), 594-597. 12. Regional: purpose and scope, 4; relation to state planning, 7; relation to county planning, 7; relation to metropolitan planning, 7; relation to interstate or international planning, 9; England, 509-510; United States, powers and possibilities, 541; state, powers and pos- sibilities, 543, 544. 13. Rural: relation to city planning, 6. Planning Acts, Canada, 265; Holland, 495-4975 England, 499-510; France, S13-5 1 ?, 529-534; Ontario, 512-513; Minnesota, 576-8; Pennsylvania, 589. See also CONSTITUTIONAL AND STATUTORY PROVI- SIONS ; PLANNING LAW. Planning Administration, see ADMINISTRATION. Planning Authority, see ADMINISTRATION. Planning Board of Brookline, Mass., financial results of setback, 182. See also SETBACKS. 710 INDEX PLANNING COMMISSIONS: i. In General; a. Membership; 3. Powers and Duties; 4. Expenses; 5. Particular Commissions. See also LOCAL GOVERNMENTS. Cross-references: ADMINISTRATION (3,4); BEAUTY, PRO- MOTION OF (7, 8) ; CITIES AND TOWNS (3, 4) ; HARBORS AND WATER FRONT (4, 6, 7, 8); HEIGHT LIMITATIONS AND DISTRICTS (i); MASSACHUSETTS (8); NEW JER- SEY (2); NEW YORK (i); NEW YORK CITY (3); PARKS AND PARKWAYS (2, 4, 6, 8, 9, 10) ; PLAN (2, 4, 7) ; PLAN- NING (n); PUBLIC IMPROVEMENTS (2); RECOMMENDA- TIONS AND SUGGESTED REFORMS (i. 19); REPLOTT1XG (i); SETBACKS (i); STATE (3, 4); STREETS AND HIGH- WAYS (2) ; TRANSPORTATION (2, 5) ; USE LIMITATIONS AND DISTRICTS (i). i. In General: definition, 204 note 14; second step in development of planning activities in United States, 553-4; temporary and perma- nent, discussion, 554 ; planning and park boards, union criticized, 562 ; planning and art commissions, union criticized, 565 ; statutes tabu- lated, 636-638. a. Membership: for replotting under Lex Adickes, 109; for prepara- tion of New York City Plan, principle of selection, 271 ; Canada, 511; France, 516; appointment under special law or city's gem ml powers, 554-5 ; appointment, various methods, 555-6 ; number, quali- fications, ex officio and lay, 556-7; term of office, overlapping to secure continuity, 557; personnel term of service (Minneapolis), 5/6-7; qualifications, appointment, term of office (N. J.), 578; ap- pointment, qualifications, term of office (N. Y.), 581; appointment, (Cleveland, O.), 587. 3. Powers and Duties: replotting, 86 note 71 ; general (Canada), 511 ; general (France), 516; advisory or administrative, 555; general, 557-563; advisory powers only, influence on community, 558; advice a prerequisite to city action, 558-9; advice, over ruling by city council, 559; over city council's action absolute, 559-560; report where powers advisory only, scope discretionary, 560; report where prerequisite to city action, scope limited to vital matters, desirability of map, 560-2; matters properly within jurisdiction, 561; alteration of features referred to commission properly within its jurisdiction, 562 ; should be limited to planning, 562-3 ; preparation of plan and report to city council, 567 ; report of plan to city and action thereon, 567 ; report on proposed amendments to city plan, 568 ; general (Minneapolis), 576-7; designs of public improvements, plats (Min- nesota), 577-8; general (N. Y.), 582; employment of experts, 582; report on matters referred to (N. Y.), 583; approval of plats be- fore recording (N. Y.), 583-4; general (Cleveland, O.), 587. 4. Expenses: Canada, 511; New Jersey, 580; New York, 582; Massa- chusetts (under proposed metropolitan planning law), 593. 5. Particular Commissions: "Departmental Commission for the Plan- ning of Cities and Villages," personnel, powers, duties (France), 531; Superior Planning Commission, personnel, duties (France), 531-532; Commission of Conservation (Canada), 542; state, for Boston metropolitan district (Mass.), 547-548; Harbor Commission (N. J.), 550 note 16; proposed Metropolitan Planning Board, ap- pointment, powers, duti< .), 589-590; Suburban Metropolitan Planning Commission, appointment, qualifications, terms of office, powers and duties (Penn.), 595-597; Port Authority for New York Harbor personnel, how chosen, powers and duties, 598-603; County INDEX 7n Plan Commission, function (N. J.), 603; State Capitol Planning Commission, personnel, appointment, terms of office, powers and duties (Cal.), 603-4. Planning Executive, see ADMINISTRATION. Planning Jurisdiction, see ADMINISTRATION. Planning Law, essential provisions, 444; history (England), 498-510; mandatory (France), 499 note 3; mandatory (England), 499-501; particular laws, see PLANNING ACTS. See also CONSTITU- TIONAL AND STATUTORY PROVISIONS. Planning Powers, see POWERS. Planting Shade Trees, legality, 382-383 and note 6. See also BEAUTY, PROMOTION OF. Plats, control by planning commission (Minn.), 578; approval by plan- ning commission essential to recording (N. Y.), 583-4; approval by city planning commission essential to recording (Penn.), 589; ap- proval essential to recording, statutes tabulated, 631-2. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; PLANNING COMMISSIONS. Playgrounds, see PARKS AND PARKWAYS. Pleading, eminent domain, necessity of alleging specific public use, 55-57. See also EMINENT DOMAIN; RECOMMENDATIONS AND SUGGESTED REFORMS. Pleasure Resorts, formulation of plans (France), 515. See also CON- STITUTIONAL AND STATUTORY PROVISIONS; PLAN. Pleasure Vehicles, exclusive use of specified streets, 183. See also AUTOMOBILES; POLICE POWER; STREETS AND HIGH- WAYS. Plotting, building land (Europe), 84; adjacent land, excess condemna- tion, 133. See also EXCESS CONDEMNATION. POLICE POWER: i. In General; 2. Zoning; 3. Beauty, Promotion of; 4. Setbacks; 5. Replotting. Cross-references: BEAUTY, PROMOTION OF (4); CONSTI- TUTIONAL AND STATUTORY PROVISIONS (3) ; EMI- NENT DOMAIN (i, 3); HEIGHT LIMITATIONS AND DIS- TRICTS (2) ; LAND (11) ; NEW YORK (i) ; RECOMMENDA- TIONS AND SUGGESTED REFORMS (6, 15) ; REPLOTTING (2); SETBACKS (3); STREETS AND HIGHWAYS (12); UNITED STATES (2) ; ZONING (2). 1. In General: fundamental in city planning, 13; definition, 17; not affected by 5th and I4th Amendments to United States Constitu- tion, 18; as affected by usage and public opinion, 19; as affected by local conditions, 20 ; distinguished from eminent domain, 25 ; ex- tends to public needs deemed such by public opinion, 147, 148; traffic regulation, 183. 2. Zoning: only practical method, 204 note 14 (3), 280; application to specific planning activities, 204 note 14 (4) ; judicial decisions, 287 note 34 ; East Cleveland case, 289. 3. Beauty, Promotion of: general discussion, 391-395; constitutional amendments, 394-395 ; proposed constitutional amendment, 395 note 22 (at p. 396) ; European practice, 396 and note 23. 4. Setbacks: establishment, 177 note 5. 5. Replotting: compulsory, 63, 64; advantages, 85 ; constitutionality in United States, discussion, 142; compulsory joint improvement analogous to replotting, 143. Police, Traffic, at congested corners, regulations, 183. See also STREETS AND HIGHWAYS. 7 i3 INDEX Population, Distribution of, function of state planning, 8; relation to possible regional planning by United States, 541. See also PLAN- NING; STATES; UNITED STATES GOVERNMENT. Port Authority, see HARBORS AM) \\ATER FRO.N Port Zoning in New York, suggestions, 278 note 28. See also HAR- I'.uKS AND \\ATER FRONT; ZONING. Porticos, encroachments, allowance and removal, 175. See also EN- CROACHMENTS; ZONE REGULATIONS. Portugal, legislation for promotion of beauty, 396 note 24. See also BEAUTY, PROMOTION or. Post Offices, planning powers of United States, 536; federal control of subway construction under New York City post offices, 536. See also UNITED STATES GOVERNMENT. Post Roads, planning power of United States, 9. See also STREETS AND HIGHWAYS; UNITED STATES GOVERNMENT. Posters, see OUTDOOR ADVERTISING. Power to Condemn Land, see EMINENT DOMAIN. Power to Regulate, see REGULATIONS. Powers of, art commission, see BEAUTY. PROMOTION OF; Boards of Appeals, see BOARDS OF APPEALS; cities, see CITIES AND TOWNS; communes, see COMMUNES; District of Columbia, see DISTRICT OF COLUMBIA; federal government, see UNITED STATES GOVERNMENT; local governments, see LOCAL GOV- ERNMENTS; Ministry of Health (England), see MINISTRY OF HEALTH; New York City, see NEW YORK CITY; plan- ning commission, see PLANNING COMMISSIONS; state govern- ment, see STATES; United States, see UNITED STATES GOV- ERNMENT. See also ADMINISTRATION; CONTROL. Practice, Zoning, importance of uniformity, 272 note 17. See also PLAN- Nl.\(i; /.( NL\('i. Preliminary Establishment of Utility, expropriation (France), 91. See also EMINENT DOMAIN. Preliminary Survey, see PLAN. Premises, existing, use in, see NONCONFORMING USES. Preservation, historic or artistic structures (Germany), 403-405; character of special localities (Germany). 405. See also BEAUTY, PRO- MOTION OF; BULK ZONING; USE ZONING; ZON- ING. Presumption, validity of statutes, 21, 22; reasonableness of zoning regu- lations from right to appeal, 572 note 52; correctness of decision of Board of Appeals. 575. See also APPEAL; BOARDS OF AP- PEALS; CONSTITUTIONAL AND STATUTORY PROVI- SIONS; ZONE REGULATIONS. Prevention, encroachments on city plan, 28-39. See also ENCROACH- MKNTS; PLAN. Prince Edward Island, planning law modeled on English Act, 510 note J7- See also CONSTITUTIONAL AND STATUTORY PROVI- SIONS. Principles of Zoning, statement (Bassett), 204 note 14; importance of, recognition of, 272 note 17. See also ZONING. Private Business, sec BUSINESS. Private Garages, see GARA* Private Interests, land developments, plans required (France), 515. 5.VV See also CONSTITUTIONAL AND STATUTORY PROVI- SIONS; LAND; LANDOWNERS; PLAN. Private Lands, see LAND. INDEX 713 Private Property, regulation under police power, to promote beauty, pro- posed constitutional amendment, 395 note 22 (at p. 396) ; expropria- tion for promotion of beauty (Germany), 400 note 34; outdoor advertising on, 410-411. See also BEAUTY, PROMOTION OF: CONSTITUTIONAL AND STATUTORY PROVISIONS: EMINENT DOMAIN; OUTDOOR ADVERTISING. Private Property Rights, protection, 13. See also CONSTITUTIONAL AND STATUTORY PROVISIONS. Private Sale, purchase of land by German cities, to secure increment of value, 374 note 23. See al-so TAXATION. Prizes for most artistic buildings (France), 407. See also BEAUTY, PROMOTION OF. Procedure, see ADMINISTRATION. Prohibition, see RESTRICTIONS. Profit to City, result of excess condemnation, 130; effect on constitu- tionality of excess condemnation, 138. See also EXCESS CON- DEMNATION. Progressive Tax, constitutionality, 375 note 25 (at p. 378) ; outdoor ad- vertising, 411 note 63 (at pp. 417, 418). See also OUTDOOR AD- VERTISING; TAXATION. Projections, ornamental features, 402 note 43; after adoption of plan (Prussia), 454- See also EMINENT DOMAIN; ENCROACH- MENTS; ZONE REGULATIONS. Promotion of Beauty, see BEAUTY, PROMOTION OF. Promulgation of Plan, see PLAN. Property, definition, eminent domain, 15 ; municipal, source of revenue to city, 357-358; purchase by city subject to mortgage, avoidance of debt limit, 362 ; purchase by city on instalment plan, avoidance of debt limit, 362. See also CITIES AND TOWNS; EMINENT DOMAIN. Property Owners, see LANDOWNERS. Property Rights, protection in both federal and state constitutions, dupli- cation cause of delay, 45. See also CONSTITUTIONAL AND STATUTORY PROVISIONS. Property Tax, local taxation in United States, 358. See also TAXA- TION. Proposal of Plans, by local authorities or by landowners (Saxony), 459. See also LANDOWNERS; PLAN. "Protected Districts," use zoning (Germany), 211. See also DIS- TRICTS; USE ZONING. Protection, art treasures in France, 396-399; places and objects of historic and artistic interest, French law, 423-432; private property rights, 13; property rights in both federal and state constitutions, duplica- tion cause of delay, 45; plan, see PLAN. See also BEAUTY, PROMOTION OF; CONSTITUTIONAL AND STATUTORY PROVISIONS; FRANCE. Protection of Law, Equal, see EQUAL PROTECTION OF LAW. Providence (R. I.), statute authorizing excess condemnation, 159; ap- pointment of planning commission under city's general powers, 555 note 21. See also CITIES AND TOWNS; EXCESS CONDEM- NATION; PLANNING COMMISSIONS. Provisions, Constitutional and Statutory, see CONSTITUTIONAL AND STATUTORY PROVISIONS. Prussia, power of cities to condemn land, 57 note 20 ; excess condemna- tion, statutes, 67 note 10; replotting statutes, 87, 105 and note 90; use zoning, 215-216; bulk zoning sustained by courts, 216; Housing 714 INDEX Law 1918, 220 note 21 ; city planning or Building Line Statute, no disfigurement allowed, 401 ; planning jurisdiction in state and local authorities, 449; planning law of 1875 as amended in 1918, 451-457; advantages and disadvantages of control over new building, 456-457; Street and Building Line Law of 1875 and Housing Law of 1918, 466-474- See also ADMINISTRATION; BEAUTY, PROMO- TION OF; BULK ZONING; CONSTITUTIONAL AND STAT- UTORY PROVISIONS; EMINENT DOMAIN; EXCESS CONDEMNATION; HOUSING; REPLOTTING; USE ZON- ING. Public, rights in streets, 173-175- See also STREETS AND HIGH- WAYS. Public Building Districts. Pacific Coast, 277. See also DISTRICTS. Public Buildings, effect on private use of land, n; part of city plan, 27; spaces reserved, 28; construction, excess condemnation, 61, 130; residence districts (New York City), 268; sites, part of prescribed plan (France), 515; commission's powers, 561-2; design, report by commission to city council (New Jersey), 580; location, reference to planning commission (New York), 583; within jurisdiction of planning commission (Cleveland, O.), 587. See also BEAUTY, PROMOTION OF; CITIES AND TOWNS; EXCESS CON- DEMNATION; LAND; PLAN; PLANNING COMMISSIONS; RESIDENTIAL USES AND DISTRICTS. Public Garages, see GARAGES. Public Health, destruction of property injurious to, as a taking for public use, 15. See also EMINENT DOMAIN; POLICE POWER. PUBLIC IMPROVEMENTS: i. In General; a. Jurisdiction of Planning Commission; 3. Cost and Payment. Cross-references: BEAUTY, PROMOTION OF (8); BENEFIT ASSESSMENTS (3,6) ; CITIES AND TOWNS (7) ; HARBORS AND WATER FRONT (3, 4); PLAN (i); PLANNING COM- MISSIONS (3); RECOMMENDATIONS AND SUGGESTED REFORMS (3, 4, 13, 14, 19) I TAXATION (4). 1. In General: excess condemnation, 61 ; feasible under use zoning, 200; by United States, possibilities of regional planning, 541. 2. Jurisdiction of Planning Commissions: grant of powers to com- mission, phrasing open to criticism, 562; reference to planning com- mission (N. J.), 580. 3. Cost and Payment: increased by legal restrictions, 43; met by local assessment or increment tax, 138, 371 and note 18; extent and difficulty of financing, 357, 359-360; financing so as to avoid debt limit, 362; limiting amount of assessments, 364; limiting area of assessment, 367-369; payment by abutter (Prussia), 455; payment by government and landowner (England), 504-505. Public Lands, condemnation for a different public use than the existing one, 58. See also EMINENT DOMAIN. Public Management, of public utilities, 167. See also CITIES AND TOWNS; PUBLIC UTILITIES. Public Markets, Swedish planning law, 462. See also CITIES AND TOWNS. Public Officers, see ADMINISTRATION. Public Open Spaces, see PARKS AND PARKWAYS. Public Opinion, relation to police power, 19; effect on right to compensa- tion for invasion of property rights. 25 ; as to public need of excess condemnation, zone condemnation and replotting. importance, 147- 148. See also EMINENT DOMAIN; EXCESS CONDEMNA- INDEX 715 TION; POLICE POWER; REPLOTTING; ZONE CONDEM- . NATION. Public Ownership as basis of right of public to plan, n. See also ^MUNICIPAL OWNERSHIP. Public Places, disfigurement, aesthetic legislation (Germany). 40-1-405. See also BEAUTY, PROMOTION OF. Public Property, outdoor advertising, 408. See also OUTDOOR AD- VERTISING. Public Service Corporation, permitted uses of structures (Milwaukee). 328. See also PUBLIC UTILITIES; USES. Public Squares, see PARKS AND PARKWAYS. Public Use, definition, 15 ; necessary allegations in eminent domain plead- ing, 55-57; housing of people of limited means, 57 note 20; diversion to other uses of land condemned for specific use, 57 note 20; divert- ing public lands to a different use, by a second condemnation, 58; definition at basis of decisions on constitutionality of excess condem- nation, 135. See also EMINENT DOMAIN; EXCESS CON- DEMNATION; HOUSING. Public Use Districts, Alameda (Cal.) ordinance, 341-344. See also USE LIMITATIONS AND DISTRICTS. PUBLIC UTILITIES: i. In General; 2. Franchises. Cross-references: BENEFIT ASSESSMENTS (3) ; CONSTITU- TIONAL AND STATUTORY PROVISIONS (5) ; EMINENT DOMAIN (i); NEW YORK CITY (u) ; PLAN (i) ; RECOM- MENDATIONS AND SUGGESTED REFORMS (2, 17, 18) ; TRANSPORTATION (7). 1. In General: part of city plan, 27, 161, 515; conformity to city plan, enforcing, 29 and note 3; definition, 161 ; control, 162, 561-2; public ownership, 167; should be a monopoly, 168; construction or exten- sion, 372 note 20. 2. Franchises: necessity of scrutinizing, 161 ; amendment as method of control, 162, 163 ; reservation of right to control, 162, 163 ; amend- ment, state's right, 163 ; taking away, as method of control, 163 ; model, elements, 167-168; expiration at same time, competing utilities, 168; provision for municipal ownership, 169-170. Public Utility, declaration of (France), 534. See also EMINENT DO- MAIN. Public Utility Uses, Milwaukee ordinance, 328. Public Works, see PUBLIC IMPROVEMENTS. Publicity, for city plan, 558. See also PLAN. Purchase, tide lands, preferred right of riparian owner, 171 note n; property by city, avoidance of debt limit, 362; national battlefields at Quebec by Canada, 382 note 3. See also BEAUTY, PROMO- TION OF; CITIES AND TOWNS; LANDOWNERS; RI- PARIAN OWNERS. Purchasers, superfluous lands, conditions imposed, English practice, 73. See also EXCESS CONDEMNATION. Purdy, L., honesty of public officials, 44 note i. See also PUBLIC IM- PROVEMENTS. Purpose of, city planning, i ; regional planning, 4 ; excess condemnation, 63, 129, 132 ; zone condemnation, 63 ; replotting, 63 ; use zoning, 198- 200; zoning, 205 note 14 (7); New York City zoning resolution, 320; Alameda (Cal.), ordinance, 352; municipal borrowing, 359- 360 ; English Planning Act of 1909-1919, section of city as planning unit, 499; plan as expressed in the English law, 502. See also CITIES AND TOWNS; EXCESS CONDEMNATION; PLAN; RE- 7 i6 INDEX PLOTTING; USE ZONING; ZONE CONDEMNATION; ZON- ING. Pushcarts, use of streets, legality, 176. See also STREETS AND HIGH- WAYS. Qualifications for Membership, art commission, see BEAUTY, PRO- MOTION OF; planning commissions, see PLANNING COMMIS- SIONS. Quebec, battlefields, purchase by Canada, 382 note 3 ; regulation of archi- tecture of buildings, 392 note 16; planning law, 512. See also BEAUTY, PROMOTION OF; CITIES AND TOWNS; CON- STITUTIONAL AND STATUTORY PROVISIONS. Queensland, excess condemnation, 73 note 24. See also EXCESS CON- DEMNATION. Racial Zoning, definition, constitutionality, 200; Italian, Jewish, Syrian, Chinese and negro quarters, property values, 200; decisions, 287 note 34. See also ZONING. Railroads, see TRANSPORTATION. Rate Fixing Powers, of federal government as related to possible regional planning by U. S., 541. See also PLAN; UNITED STATES GOVERNMENT. Rate of Taxation, see TAXATION. Rates, regulation as method of control of public utilities, 162. See also PUBLIC UTILITIES. Rates of Fare, see TRANSPORTATION. Real Estate Tax, local taxation in Germany, England and U. S., 358. See also TAXATION. Rear Land, see AREA LIMITATIONS AND DISTRICTS. Reasonable Return, see RETURN ON CAPITAL. Reasonableness, zoning regulations, legality, 282; zoning regulations, judicial decisions, 287 note 34; zoning regulation, presumption from existence of right to appeal. 572 note 52. See also APPEAL; PRE- SUMPTIONS; ZONE REGULATIONS. Recapture, franchise of public utility, 169-170; water front, 171, 172. See also HARBORS AND WATER FRONT; PUBLIC UTILITIES. Reclassification, within districts, Alameda (Cal.), 353. See also CLASSI- FICATION. Recognition of Zoning Principles, importance, 272 note 17. See also ZONING. RECOMMENDATIONS AND SUGGESTED REFORMS: i. Plan- ning; 2. Plan; 3. Eminent Domain; 4. Excess Condemnation; 5. Zone Condemnation; 6. Replotting; 7. Zone Regulations in General; 8. Bulk Regulations and Zoning; 9. Use Regulations and Zoning; 10. Streets and Highways; n. Setbacks; 12. Land and Landowners; 13. Public Improvements; 14. City Financing; 15. Beauty, Promotion of; 16. Outdoor Advertising; 17. Public Utilities; 18. Transportation; 19. Planning Commissions; 20. Boards of Appeals. X. Planning: should be in advance of development, 3; should avoid housing details, 5 ; zoning should be under police power, 280-281 ; should give city specific power to zone, 281 ; regional planning by fed- eral government, wisdom of preparing an advisory plan. 541-542; federal power of investigation, experimentation and advice should be exercised, 542 and note 9; advisability of state regional planning to INDEX 717 conserve state resources, 544; possibility of creation of local public corporations to administer local planning, 545 ; unwise for city to extend its planning jurisdiction beyond its own limit, 546-547; grant of planning power to county government unwise, 547; wisdom of establishing local governments with planning jurisdiction only for areas larger than and including cities, 547; advisability of appoint- ing joint commissions from two or more cities or towns with juris- diction over matters of joint concern, 548; single, permanent authority for interstate, metropolitan district, 548-550 ; advisable that state should supervise local planning, 550-552; expert assistance in planning by state to local communities, 553. 2. Plan: content, 27; control over public utilities should be used to secure conformity, 29 ; approval of subdivision before recording should be required to insure conformity, 32 ; new method suggested of protecting mapped streets by requiring permit to build contrary to plan, and allowing appeal when permit refused, 34; avoid arbitrary zoning, 205 note 14 (8) ; provide for proper correlation of uses and districts, 206-207 ; avoid elaborate district classification, 291 ; grant- ing by United States of permission to build bridges or extend bulk- head lines should be with reference to city plan, not navigation merely, 543. 3. Eminent Domain: reduce delay and expense to city by abolishing bill of rights in state constitutions, 45-46; reduce expense to city by debiting landowner with value of benefits received from im- provement, 48; best tribunal in large cities is judge without jury; board of commissioners works well only in small communities, 53-54; important to reform procedure, 55 ; desirability of rule permitting allegations of general public use in pleading, 55-57. 4. Excess Condemnation: protect public improvements and industrial enterprises by condemnation of adjacent land, 61. See also infra this title: STREETS AND HIGHWAYS; PUBLIC IMPROVE- MENTS. 5. Zone Condemnation: bad conditions in unhealthy area can only be met by condemnation of entire area, replanning and sale, 62. 6. Replotting: should be under public supervision, 62-3; should be by compulsion of landowner, 63 ; should be under police power, not eminent domain, 85 ; should be compulsory where subdivison is faulty, 85. 7. Zone Regulations in General: should not be retroactive, 201; re- duce nonconformity gradually by restricting renewals and repair, 202-203 ; proper framing of provisions excluding uses from dis- tricts, 268 note ii ; avoid discretionary powers of officials in ad- ministering, 279; must be reasonable and protect all in a particular classification equally, 282-283 ; should be stabilized by restrictions on power to amend, 568; should be quick hearing on violations and right to appeal, 569; should be simplified and enforced justly and with least possible hardship, 576. 8. Bulk Regulations and Zoning: to secure light and air and relief from congestion, make height and area limitations by zones, 41 ; limit bulk of buildings to conserve public health, 194; control con- struction of tall buildings by zoning restrictions, 196; adopt bulk regulations to existing conditions, different in different sections, bulk zoning, 198; avoid too lax height and area restrictions, 275- 276. g. Use Regulations and Zoning: establish use zones to maintain values and secure permanent improvements, 199, 20 ; wise where 718 INDEX possible to establish a single family house district, 273-275; not necessary to exclude heavy industry entirely from city, zoning serves same purpose, 278. 10. Streets and Highways: lay out street system to obtain blocks that will subdivide into lots of proper form and area, 84; gridiron street system should be replotted, 142; city should have the fee in streets, not merely an easement, 173-174; remove encroachments to relieve congestion, 175; taking land for streets, considerations in favor of wide strips or narrow strips with setbacks, 179; widening of central business and traffic streets, saving of expense by setbacks and re- strictions on renewal or repair, 181. 11. Setbacks: important at corners of traffic streets, 181 ; to maintain neighborhood character and land values, 181 ; should be made part of city map, 183. 12. Land and Landowners: control land development by allowing land- owner to classify land as agricultural at reduced tax rate or as building at increased rate (Canadian method), 42; extension of city limits into agricultural lands, agreements with owners as to taxes, 546; important that zoning law should authorize regulation of use of vacant land, 566 note 43. See also infra this title CITY FINANCING. 13. Public Improvements: pay for public improvements by benefit assessment or preferably by excess condemnation where possible, 138-139. See also infra this title, CITY FINANCING. 14. City Financing: constitutional or statutory limitation on amount to be raised by taxation should be liberal, 358-359; permanent public improvements should be financed by bond issue, 359; sinking fund requirements, correct principle, 360; do not fix debt limit too low, 360; borrowing for current expenses advisable under certain con- ditions, 361 ; deduct from debt limit money spent in financing self- supporting municipal enterprises, 361 ; make those benefited by a public improvement contribute to its cost to extent of benefit re- ceived, 363-364 ; establish area of assessment to include all benefited, not merely abutting landowners, 367-368; benefit assessments should not be restricted to streets and parks, but extended to public im- provements generally, 371. 15. Beauty, Promotion of: should be under police power where regula- tion is reasonable and proper, 391 ; preservation of historic places should be by eminent domain, 405 ; maintain by regulations aesthetic standards for special localities, 405-406. 1 6. Outdoor Advertising: public control of advertising in public places should be exercised to cut down size and total area of signs, 409; taxation of advertisements in street cars and subways and other public places, 409, 411; keep advertising out of residential neighbor- hoods by establishing advertising districts, or structural regulations, 418. 17. Public Utilities: scrutinize proposed franchises and provide for public control, 161-162; threat of competition as a means of control, 162; avoid grant of franchise to competing public utility, 166; limit franchises in public interest at time of grant and provide for re- gaining franchise on favorable terms, 167 ; city should not take compensation for grant of franchises, 168; reserve public right to recapture franchises. 169-170. 18. Transportation: different methods for meeting problem of rates of fare charged, 165-166; avoid long term contracts between city and companies, 166 and note 7; provide for expiration of charters of INDEX 719 competing companies at same time, 168; in case of competing com- panies, provide for joint use of tracks and free transfers, 168; street railway should be monopolistic and regulated, 168; in figuring fair return on capital, consider extensions as part of entire system, 168; conditions of grant of permit to lay tracks, 168; municipal revenue from transportation companies not advisable, 168. 19. Planning Commissions: important to study foreign planning ad- ministration, 443-444, 448; commission should be permanent, 554; power of appointing should be in mayor solely, 556 ; small com- missions advocated, 556 ; should have assistance and advice of city officials, 557 ; little need of city attorney, as such, in membership, 557 ; law providing that recommendations can be disregarded only by two thirds vote of city council, unwise, 559 ; planning power should not be divided between commissions and city authorities, but city authorities should not have power to act until commissions have made report, 559; planning by giving commission absolute control over city action ill-advised, 559-560; unless planning commis- sion performs duties of art commission, "design" of features should not be referred, 562; care exercised on determining matters and details to be referred, 562 ; "public improvements," grant of power to commission over should not be phrased so broadly or indefinitely, 562 ; duties .should be limited to planning, 562-3; do not combine plan- ning and park boards, 562 note 35 ; do not combine planning and art commissions, 565. 20. Boards of Appeals: creation of Boards of Appeal should be by statute, 573 ; function should be limited to deciding appeals and allowing exceptions, 573; court should not substitute its judgment for that of Board in solution of zoning difficulties, 575. Reconstruction, after catastrophe, plan required (Prussia), 453; build- ings destroyed by catastrophe (Saxony), 475. See also PLAN; RE- PLOTTING. Recording, requirements, means of city control over private developments, 32. See also CITIES AND TOWNS; LAND. Recreation Grounds, see PARKS AND PARKWAYS. Reference to Commission, matters included, detail, 561-2. See also PLAN; PLANNING COMMISSIONS. Regional Planning, see PLANNING. Regulation, use of private land, 12; use of property, taking by eminent domain, 18; height, area and use of buildings, part of city plan, 27; rates and service as method of control of public utilities, 162; traffic, 183; parking of vehicles, 183; tax rate in cities (Europe), 359; excessive municipal borrowing (Europe), 360; private property under police power to promote beauty, proposed constitutional amendment, 395 note 22 (at p. 396); outdoor advertising, 408-411; pilotage, state and federal, 538; outdoor advertising, statutes tabu- lated, 636; area of buildings, see AREA LIMITATIONS AND DISTRICTS; height of buildings, see HEIGHT LIMITATIONS AND DISTRICTS. See also BEAUTY, PROMOTION OF; CITIES AND TOWNS; CONSTITUTIONAL AND STATU- TORY PROVISIONS; EMINENT DOMAIN; HARBORS AND WATER FRONT; OUTDOOR ADVERTISING; POLICE POWER; PUBLIC UTILITIES; STREETS AND HIGHWAYS; TAXATION; TRANSPORTATION; USE LIMITATIONS AND DISTRICTS. Regulations, bulk, see BULK REGULATIONS; fire proof, see F PROOF REGULATIONS; retroactive, see RETROACTIVE 720 INDEX REGULATIONS; structural, see STRUCTURAL REGULA- TIONS; zoning, see ZONING REGULATIONS. Regulatory Legislation, see POLICE POWER. "Regulatory" Street Plans, Italy, 445. See also STREETS AND HIGHWAYS. Rehousing, evicted tenants, excess condemnation, English practice, 73. See also EXCESS CONDEMNATION; REPLOTTING; ZONE CONDEMNATION. Relocation, of Works of Art, planning commission (Cleveland, Ohio), 587; art commission (New York City), 587. See also BEAITY. PROMOTION OF. Remnants, elimination, purpose of excess condemnation, 132-133; elimina- tion, constitutionality of statutes, 135; condemnation (Prussia), 451- 45-'. See also EXCESS CONDEMNATION. Removal, slums (England), 80-83; slums, criticism of English methods, 82-83 1 slums, necessity of co-ordination with city planning, 83 ; en- croachments, 175; nonconforming structures (Los Angeles), 201; works of art (Cleveland, O.), 587; works of art (New York City), 587. See also BEAUTY, PROMOTION OF; ENCROACH- MENTS; NONCONFORMING STRUCTURES; PLANNING; ZONE CONDEMNATION. Rents, effect of large tenement houses (Germany), 219. See also LAND. Repair, of nonconforming structures, see NONCONFORMING STRUC- TURES. Replanning, essential in zone condemnation, 62 ; devastated regions (France), 514 note 34. See also DEVASTATED REGIONS; ZONE CONDEMNATION. REPLOTTING: i. In General; 2. Police Power or Eminent Do- main; 3. Procedure; 4. European Practice. Cross-references: ADMINISTRATION (5); CONSTITU- TIONAL AND STATUTORY PROVISIONS (9) ; EMINENT DOMAIN (2); ENGLAND (10); EXCESS CONDEMNATION (6); GERMANY (9); PLANNING COMMISSIONS (2, 3); POLICE POWER (5); RECOMMEDATIONS AND SUG- GESTED REFORMS (6, 10) ; UNITED STATES (5) ; ZONE CONDEMNATION (i). I. In General: definition, 62; only in absence of costly structures, 63; distinguished from zone condemnation, 63 ; after catastrophes, 86 ; commissions, 86 note 71 ; need of in the United States, 142. a. Police Power or Eminent Domain: compulsory, exercise of police power, 63, 64 ; under police power, advantages, 85 ; under eminent domain in few cases, 85; constitutionality discussed, 142; compulsory joint improvements on analogy, 143, 144, 146. 3. Procedure: petition of landowners preliminary finding of public utility, 85. 4. European Practice: Switzerland, Germany, 83-127; Zurich, 86, 87; Austro- Hungary, 87; Frankfort-on-the-Main (Lex Adickes), 106- 127; Prussia, 451; Saxony, 486-489. Report of Planning Commission, see PLANNING COMMISSIONS. Repurchase by Owner, excess condemnation, 131. See also EXCESS CONDEMNATION. Research, see INVESTIGATIONS. Reservations in city plan for public buildings and parks, 28. See also I 'ARKS AND PARKWAYS; PLAN; PUBLIC BUILDINGS. Reserve Lands, part of prescribed plan (France), 515. See also LAND; I 'LAN. INDEX 721 Residential Class Rules, Diisseldorf ordinance, 250. See also RESI- DENTIAL USES AND DISTRICTS. Residential Land, classification and taxation (Canada), 41. See also LAND. Residential Neighborhoods, outdoor advertising, 412-419. See also OUTDOOR ADVERTISING; RESIDENTIAL USES AND DISTRICTS. Residential Streets, suburbs, see setbacks, 178; regulation of traffic (Prus- sia), 474- See also SETBACKS; STREETS AND HIGHWAYS. RESIDENTIAL USES AND DISTRICTS: i. In General; 2. Dwell- ing Houses; 3. Tenement Houses; 4. Apartment Houses; 5. One Family Houses; 6. Two Family Houses; 7. Attached Houses; 8. Detached Houses; 9. Residence Districts in General; 10. One Family House Districts; n. Two Family House Districts; 12. Residence Exception Districts. Cross-references : BEAUTY, PROMOTION OF (7) ; CONSTI- TUTIONAL AND STATUTORY PROVISIONS (5) ; GER- MANY (5); INDUSTRIAL USES AND DISTRICTS (4); LAND (11); MASSACHUSETTS (4); NEW JERSEY (3); NEW YORK CITY (6); ORDINANCES (i) ; OUTDOOR AD- VERTISING (4) ; RECOMMENDATIONS AND SUGGESTED REFORMS (9, 16) ; SETBACKS (4) ; STREETS AND HIGH- WAYS (13); USE LIMITATIONS AND DISTRICTS (3)- 1. In General: zoning regulations, 203; exclusion of residences from heavy industrial districts, criticism, 277 ; design and appearance of residences regulated (Prussia), 473; residence regulations not in- cluded in New York zoning law, 566 note 43. 2. Dwelling Houses: number to acre (England), 503-504; regulations, East Birmingham (England) scheme, 507 note 20; location (Cal. and Oregon), 566 note 43. 3. Tenement Houses: promulgation of regulations, function of state planning, 8; replacing private houses along subway routes, 162; fire proof regulations, effect in New York and Chicago, 192 ; exclusion from single family house districts, 205 note 14 (13) ; effect on rents in Germany, 219; Diisseldorf ordinance, 260; in residence districts (New York City), 268; desirability of segregating, 273-274 and note 19; exclusion from districts as part of systematic zoning, constitu- tionality, opinion of Massachusetts justices, 289; expropriation of land for (Prussia), 455; location (Cal. and Oregon), 566 note 43- 4. Apartment Houses: exclusion from single family house districts, 205 note 14 (13) ; effect on rents in Germany, 219; Diisseldorf ordi- nance, 259-260 ; garden, in New York, significance, 276 note 23 ; location (Cal. and Oregon), 566 note 43. 5. One Family Houses: definition, Diisseldorf ordinance, 252; regula- tions, Diisseldorf ordinance, 259-261 ; in New York City, reasons for failure to protect, 274; location (Cal. and Oregon), 566 note 43. See also infra this title, ONE FAMILY HOUSE DISTRICTS. 6. Two Family Houses: Diisseldorf ordinance, 259-261; location, (Cal. and Oregon), 566 note 43. See also infra this title, TWO FAMILY HOUSE DISTRICTS. 7. Attached Houses: Diisseldorf, 260; Frankfort, 262 (No. i) ; Cologne, 262 (No. 2) ; Karlsruhe, 263 (No. 3) ; Munich, 264 (No. 4)~; Saxony, 491; East Birmingham (England) scheme, 508 note 20; location (Cal. and Oregon), 566 note 43. 723 INDEX 8. Detached Houses: Diisseldorf, 260; Frankfort, 262 (No. i); Cologne, 262 (No. 2); Karlsruhe, 263 (No. 3); Munich, 264 (No. 4) ; Saxony, 491. 9. Residence Districts in General: zoning regulations in general, 205 note 14 (13) ; Frankfort, 214; Toronto, 265; Los Angeles, 267; New York City, uses permitted and excluded, 268; desirability of segre- gating single family houses, 273-274 and note 19; New York City, criticism, 273-274 and note 19; business excluded, constitutionality, discussion, 285, 288; manufacturing excluded, constitutionality, 285, 287 and note 36; how far can subdivision legally go, unsettled, 291- 292; New York City zoning resolution, 307; uses permitted (Mil- waukee), 325-326; Alameda (Cal.), 341, 342; Prussia, 473; shops or other buildings allowed, East Birmingham (England) scheme, 508 note 20. See also GARAGES. 10. One Family House Districts: exclusion of apartment houses, flats, tenement houses, etc., 205 note 14 (13) ; desirability 273-274 and note 19; power to create under New York City charter, 275 note 21; judicial decisions, 284 note 34; legality considered, 292. 11. Two Family House Districts: judicial decisions, 284 note 34; ex- clusion of tenement, legality unsettled, 291-292. 12. Residence Exception Districts: light, unobjectionable industries permitted (Los Angeles), 267. Resorts, formulation of plans required (France), 515. See also PLAN. Resources, state, conservation, function of state planning, 8; conservation by regional planning, possibilities, 544. See also PLANNING; STATES. "Responsible Authority," see ADMINISTRATION. Restoration of Existing Buildings, zoning resolution (New York City), 322-323. See also NONCONFORMING BULKS; NONCON- FORMING STRUCTURES; NONCONFORMING USES. Restrictions, effect on cost of public improvements, 43; land resold, ex- cess condemnation, 130; land taken under excess condemnation statutes, 131 ; deeds supplementing zoning regulations, 205 note 14 (ii) ; building freedom under German law, remedy, 460-461; build- ing on unplanned areas (Sweden), 462; area of buildings, see AREA LIMITATIONS AND DISTRICTS; height of buildings, see HEIGHT LIMITATIONS AND DISTRICTS. See also EX- CESS CONDEMNATION; PUBLIC IMPROVEMENTS; ZONE REGULATIONS. Resubdivision of Land, devastated regions (France), 514 note 34. See also DEVASTATED REGIONS; SUBDIVISIONS. Retrocession of Expropriated Land, to former owners (France), 102. See also EMINENT DOMAIN; LAND; LANDOWNERS. Retroactive Regulations, building, 191 ; zoning plans, legality, 201 ; zon- ing (Los Angeles), 267; zoning (New York City), 268. See also ZONE REGULATIONS; ZONING. Return on Capital, transportation company's rights, 164; consideration of track extensions, 168. See also PUBLIC UTILITIES; TRANS- PORTATION. Revenue for City, from transportation companies, 168. See also CITIES AND TOWNS; RECOMMENDATIONS AND SUGGESTED REFORMS; TRANSPORTATION. Reversal of Decision, of planning authorities. Board of Appeals, 569. See also A1TF.AL; HOARDS ( >F APPEALS. Reversion of Expropriated Land, to former owners (France), 102. See also EMINENT DOMAIN; LAND; LANDOWNERS. INDEX 723 Review, proceedings on appeal from Board of Appeals, 297; decisions of planning authorities, by Board of Appeals, 569. See also APPEAL; BOARDS OF APPEALS; PLANNING COMMISSIONS. Revision of Building Plans, Bureaus of Building Advice (Germany), 406 note 54. Rhode Island, constitutional amendment authorizing excess condemnation, 131 and notes 17 and 22, 149; owner's right to repurchase, excess condemnation, 132 ; statute authorizing excess condemnation in Providence, 159. See also CONSTITUTIONAL AND STATU- TORY PROVISIONS; EXCESS CONDEMNATION; LAND- OWNERS. Right of Private Property, constitutional guarantees, 13. See also CON- STITUTIONAL AND STATUTORY PROVISIONS. Riparian Owners, see NAVIGABLE WATERS. Roads, laying out, function of state planning, 8. See also STATES, STREETS AND HIGHWAYS. Roadway, use, traffic regulations, 183. See also POLICE POWER; STREETS AND HIGHWAYS. Rochdale (England) scheme, houses to acre, 503 note 14. Roof Signs, height and setback restrictions (New York City), 419 note 67; forbidden (England), 421. See also OUTDOOR ADVER- TISING. Roumania, legislation for promotion of beauty, 396 note 24. See also BEAUTY, PROMOTION OF. Routes, Transportation, relation to city growth, 162; city's power to control, 164. See also CITIES AND TOWNS; TRANSPORTA- TION. Royal Building Board (Sweden), influence over town planning, 464. See also PLANNING; SWEDEN. Ruislip Northwood (England), houses to acre, 503 note 16; use districts, 504. See also USE LIMITATIONS. Rules of Damages, condemnation proceedings, 47-51. See also EMI- NENT DOMAIN. Rules of Interpretation, see INTERPRETATION. Rules, Zoning, see ZONE REGULATIONS. "Rural Buildings," definition, Diisseldorf ordinance, 252. See also ZONE REGULATIONS; ZONING. Rural Land, classification and taxation (Philadelphia), 42 note 21. See also LAND; TAXATION; ZONING. Rural Planning, see PLANNING. Ruskin, Lectures on Art, object of art, 381. See also BEAUTY, PRO- MOTION OF. Russell Sage Foundation, survey of procedure in eminent domain, 51, 55. See also EMINENT DOMAIN. St. John (New Brunswick), planning schemes, 512 note 30. See also PLAN; PLANNING. St. Louis, business structures about parks, prohibition, 387 note 13 (at p. 388). See also PARKS AND PARKWAYS; ZONE REGULA- TIONS Sale of Superfluous Lands, see EXCESS CONDEMNATION. Saloniki, replotting provisions summarized, 87 note 76. See also RE- PLOTTING. Sandwich Men, right to use streets, 175- See also STREETS AND HIGHWAYS. 724 INDEX Sanitary Engineering, relation to city planning, 5. See also PLAN- NING. Sanitary Ordinances, France, 514 note 34. See also ZONE REGULA- TIONS. Sanitation, cities (France), 76; soil (France), 515. See also CITIES AND TOWNS; LAND. Saskatchewan, Town Planning Act, 265 note 3; self supporting municipal enterprises, debt limit, 361 note 3; benefit assessments, 372 note 20; statutes, promotion of beauty, 382 note 3 ; regulation of buildings, etc., about municipal centers, 392 note 16; planning law modeled on English act, 510 note 27; zoning regulations, 512. See also BEAUTY, PROMOTION OF; BENEFIT ASSESSMENTS; CITIES AND TOWNS; CONSTITUTIONAL AND STATU- TORY PROVISIONS; ZONE REGULATIONS. Saxony, replotting statutes, 87, 105 and note 90; planning jurisdiction, 449; planning law of 1900-1004, 457-462; Building Law of 1900, 474- 495. See also ADMINISTRATION; CONSTITUTIONAL AND STATUTORY PROVISIONS; REPLOTTING. Scenic Land, see LAND. See also BEAUTY. PROMOTION OF. Scheme, English practice, 502-503. See also PLAN. Schenectady, planning and park boards, consolidation, 562 note 35. See also CRITICISMS; PARKS AND PARKWAYS; PLANNING COMMISSIONS. Scope, city planning, 4; state and national planning, 8. See also PLAN- NING. Scotland, English planning law of 1909, with modifications, in force, 510. See also CONSTITUTIONAL AND STATUTORY PROVI- SIONS. Seaside Resorts, formulation of plans, requirements (France), 515. See also CONSTITUTIONAL AND STATUTORY PROVISIONS; PLAN. Secretary of War, authority over harbor lines, 540. See also HARBORS AND WATER FRONT. Self-Government, local, see LOCAL SELF-GOVERNMENT. Self-Supporting Municipal Enterprises, debt limit, 361 and note 3. See also CITIES AND TOWNS. Semi-residential Use District, definition, reasons for, 278 note 28. See also RESIDENTIAL USES AND DISTRICTS. Service, regulation as method of control of public utilities, 162; trans- portation companies, control by city, 164-166; at cost agree- ments between city and transportation companies, 166 and note 6. See also CITIES AND TOWNS; CONTRACTS; TRANSPOR- TATION; PUBLIC UTILITIES. Servitudes, see EASEMENTS. SETBACKS: i. In General; 2. Legislation; 3. Constitutionality; 4. Location. Cross-references: CONSTITUTIONAL AND STATUTORY PROVISIONS (5, 9); ENGLAND (5); LANDOWNERS (i); MASSACHUSETTS (3, 5); NEW YORK (4); NEW YORK CITY (6, 7); ORDINANCES (i); PARKS AND PARKWAYS (5); POLICE POWER (4); RECOMMENDATIONS AND SUGGESTED REFORMS (10, n); STREETS AND HIGH- WAYS (12, 13). i. In General: part of city plan, 27. 561 note 31; generally m<-