Protection of public improvements. In recent years there has been considerable discussion as to the advisability of conferring upon municipalities the power to condemn land bordering on an improvement, for the purpose of facilitating the city's control over the character of the neighborhood. A new use of the power of eminent domain is sought for purposes which are outside the police power. While the city may, under its police power, reasonably control building heights, and exclude such business concerns from residential districts as livery stables, public garages, brick yards and the like and may exercise a fairly adequate control over billboards, it cannot establish an exclusively residential neighborhood, nor a business district, except in so far as these objects will prove to be attainable under a zoning law such as was enacted in Illinois in 1919. The city, under the police power, cannot impose restrictions upon the general architectural style or value of buildings. The various sections of metropolitan areas are undergoing continual change, with a destructive effect upon the stability of land values and upon the harmony of architectural construction and arrangement. Slum areas develop. Public improvements constructed at great expense may fail to accomplish the objects for which they were designed because their usefulness becomes impaired by changed conditions. Building restrictions inserted in deeds to newly sub-divided property operate as partial correctives where they exist, but the policy. behind them is not formulated with respect to the city's needs as a whole. It has been proposed, therefore, that the city be given power to condemn land which borders upon public improvements such as streets, parks and public buildings and to sell the excess land with restrictions as to the use of the property; the power to be used with respect to developed as well as undeveloped property. There has been virtually no experience in this country in employing the power of eminent domain for this purpose, but it has been used in England with considerable effectiveness during the past twenty years. Constitutional amendments authorizing excess condemnation for this purpose have been adopted in Ohio and Wisconsin, both in 1912; and have failed of adoption in New York and California. It is argued that the city should have the power to control, within reasonable limits, the character of a district bordering on its own improvements, if it is willing to pay for that privilege. It is urged that the exclusion of inappropriate structures and business establishments in residence districts, or of residences in business districts, the securing of reasonable harmony in architecture, building lines and uses of property steady land values, and benefit property owners and the city economically and from a standpoint of aesthetics. It is also urged that the realization of the full benefit of the improvement would thereby be insured; that the power would be an effective instrument for the rehabilitation of insanitary areas; that public health, morals and welfare would be promoted. Legislative investigative committees and civic bodies have reported in favor of this extension of the power of eminent domain. The Committee on Taxation of the City of New York has stated that, "American cities have been hampered in effective city plan development and in creating dignified and artistic places by the free and unrestricted use of abutting property by private owners. There is no orderly architectural arrangement. The city should have the power to sell or lease the excess land subject to suitable restrictions."8 The Chicago Bureau of Public Efficiency recently said, "Experience in the widening of Michigan Avenue and Twelfth Street, the two initial projects in the carrying out of the Chicago plan, shows not only that distorted and unusable small areas or remnants are left when a street improvement of this character is made, but also that the municipality, having no control over the character of building development along the line of the new street, may find that the usefulness and the value of the improvement, because of the lack of beauty and symmetry in the buildings erected along the new thoroughfare may be greatly lessened, although the community has been put to large expense to make the street adjustment. *** It [the city] must secure control over building improvements fronting on the newly widened or opened street in order that the desired view, appearance and economic importance of the new thoroughfare may be preserved and the full benefit of the improvement realized." 9 In his report on the legal aspects of the city plan in 1909, Walter L. Fisher had the following to say with reference to this proposal: "In order to secure the full benefit of a park, boulevard, avenue or other public recreation or resort, some control of the immediate surroundings is indispensable. The municipal authorities need some power to regulate the use of premises within immediate view of the public grounds, so as to prevent advertising, restrict kinds of business, and make appropriate regulation of the heights, manner of construction and location of the surrounding buildings. To that end resort must be had either to the police power or to the power of eminent domain. The police power of the state is not available for merely esthetic purposes and is quite inadequate to the solution of this special problem."10 Several writers have likewise put themselves on record as favoring this extension of the power of eminent domain.11 The fundamental objection to excess condemnation for the purpose of controlling the character of areas bordering on public improvements is, of course, that the taking amounts to an unjustifiable interference with the rights of private property. It is said that the public welfare does not demand it; that the police power is adequate,12 and that it is preferable to seek any desired extension of control over the use and location of buildings through the gradual expansion of the police power by judicial decision rather than by abrupt changes in constitutional Report on Excess Condemnation. Report on Excess Condemnation, pp. 35-36. 10 Plan of Chicago, Commercial Club of Chicago, p. 139. 11 Flavel Shurtleff, Carrying out the City Plan, p. 137; Robert E. Cushman, Excess Condemnation, p. 116; Herbert S. Swan, Report on Excess Condemnation, p. 19; William Bennett Munro, Principles and Methods of Municipal Administration, p. 91. 12 Ernst Freund, Conferences on City Planning, 1911, p 242. principles, upon the theory that gradual changes are more calculated to represent the real desires of the people. It is further urged that the exercise of the police power entails little expense to the public as compared with that which accompanies the taking of property under the power of eminent domain and that it is better to sacrifice the added control which cities would derive from this extension of the power of eminent domain than to adopt a policy which might lead to an era of unfortunate land speculation for cities. Doubtless for these reasons proposed constitutional amendments providing for excess condemnation for these purposes have in some instances failed of adoption, as has been the case in California three times and in New York, although such a constitutional provision has been adopted in Ohio and in Wisconsin. The amendments which have been rejected have conferred relatively broad powers upon the legislature, and it is likely that the desired objects could have been secured by a more restricted grant of power. The New York and California proposed amendments merely limited · the taking of property to that which was "additional, adjoining and neighboring". There was no limitation as to the kind of improvement to which the power applied. To meet the objections that have been raised to the use of excess condemnation for the purpose of protecting improvements, two proposals have been made. One consists in requiring the city to sell the land, condemned in excess, to its former owner if he wishes to buy it. Only upon his rejection of the offer would the land be offered to the general public. There would seem to be no public advantage in selling land to another when the former owner is willing and able to retake title with the restrictions. A second proposal, designed to meet some of the objections and at the same time calculated to secure many of the advantages of excess condemnation for the purpose of protecting improvements, seeks to confer upon municipalities the power to condemn casements only in the adjoining land. Under this plan the property owner is protected in his ownership but is restricted in the use of his property. It is further urged that this plan would involve less financial risk to the city. Within certain limits, not well defined, the condemnation of easements could be authorized by statute but any thorough-going plan of control would probably meet with constitutional objection. The recent act in this state providing for the consolidation of the local governments of Chicago, but which has never gone into effect, authorizes the city to acquire easements in lands in the vicinity of parks for the purpose of controlling the surroundings. As to the policy of condemning easements, those who advocate the broader power admit its effectiveness but deny that it goes far enough. As far as undeveloped territory is concerned. the condemnation of easements probably would be adequate but it is contended that this power would not be adequate to protect improvements or to change the character of a district which is already improved. Recoupment. The proposal has been made to employ the principle of excess condemnation for the purpose of recouping the cost of a public improvement and for intercepting a part of the increment of value added to land as a result of the improvement. The adoption of such a policy is advocated as a substitute. for or as supplementary to the common practice in this country of levying special assessments, or the practice in some European countries of imposing increment taxes. It is urged that the city having created this increment of value is entitled to receive it. The economic justification for recoupment is much the same as that which supports a tax on the unearned increment such as is levied in England under the provisions of the Lloyd George budget of 1909. The principle of recoupment has never been adopted in this country though it has been employed extensively in European countries. In England the practice dates back to the Land Clauses Consolidation Act of 1845, but as a financial measure it has not been a success. Out of fourteen miles of streets widened by the Metropolitan Board of Public Works of London at a cost of $58,859,000 the sale of the surplus land totaled but $26.608,000. A few street improvements have shown a margin of profit. Later improvements put through by the London County Council were, with but few exceptions, not financially successful. The extensive improvements in the city of Paris, during the days of the second empire, showed a like loss. Land to the amount of $259,400,000 was condemned but in 1869 the city had recouped but $51,800.000 from the sale of surplus lands and still had on hand land valued at $14,400,000. Later projects have likewise failed to produce a profit or meet the cost. The experience of Belgium, while in many cases productive of heavy losses, in more recent years has been more successful, particularly in projects which were designed to change the character of slum areas. The levying of special assessments is not common in Europe though it is coming to be looked upon with greater favor. In this country there is but little enthusiasm shown for the adoption of the principle of condemning land for purposes of recouping the cost of an improvement.13 The financial risks, apparent from European experience, are deemed too great. The practice of levying special assessments is regarded as preferable. When recoupment is favored at all, it is regarded not as the primary object but as an incident to some other project such as taking of lot remnants or the protection of improvements. In every case in this country where a proposed constitutional amendment has been worded broadly enough to permit the taking of excess land for purposes of recoupment, it has been defeated. This has been the case in New York, Wisconsin, and California, although in the first two states amendments of more limited scope have been adopted. 13 Committee on Taxation of New York. Report on Excess Condemnation; Chicago Bureau of Public Efficiency, Report on Excess Condemnation; Herbert S. Swan. Report on Excess Condemnation: W. L. Fisher. Legal Aspects of the City Plan; R. E. Cushman, Excess Condemnation Flavel Shurtleff, Carrying out the City Plan. Analysis of constitutional provisions authorizing excess condemnation. If it be decided to adopt the principle of excess condemnation the following distinct questions are presented: 1. Should the clause be self-executing? 2. Upon what agencies of the state should power be conferred? 3. To what kinds of public improvements should it be applied? How much land in excess should the condemning agency be authorized to take? 5. What interest in the land should be authorized to be taken? 6. What directions should be given as to the disposition of the excess taken? 7. What restrictions should be imposed in the disposition of the excess land? (1) Self-executing or enabling act. The amendments adopted. in Massachusetts, New York, Rhode Island and the amendments which failed of adoption in California and New Jersey are enabling acts. The Ohio and Wisconsin amendments and the amendments defeated in New York and Wisconsin are probably self-executing. An enabling act would be in harmony with other eminent domain clauses and would be preferable. The necessary detailed restrictions could more effectively be worked out by a general legislative enactment. (2) Upon what agencies should the power be conferred? The various amendments contain the following provisions relating to the character of the agencies upon which the power is conferred. In Massachusetts the power is given to the commonwealth, counties, cities or towns; New York, cities; Ohio, municipalities; Wisconsin, the state or any of its cities; Rhode Island, the state or any cities or towns. The amendments which were rejected in New York, (1911) conferred the power upon municipal corporations; Wisconsin, (1914) municipal corporations; California, (1914, 1915, 1918), the state, county, city or town; New Jersey (1915), the state, counties, cities, towns, boroughs, or other municipality or any board, governing body or commission. While the cities are the governmental agents chiefly interested in obtaining the power of excess condemnation, no reasons have been advanced for excluding other governmental agencies from exercising the power. The most comprehensive provision dealing with this matter is contained in the proposed amendment which was defeated in New Jersey in 1915. The purposes for which the power of excess condemnation are to be authorized would affect the question here considered. In any event if the power is to be granted it should be conferred upon all those governmental agencies which may possibly have to deal with the particular problem or problems sought to be solved by the grant of the power of excess condemnation. (3) Kind of public improvement to which the power is to be applied. There is considerable variation in the amendments. which have been proposed or adopted as to the kind of improve |