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REAL ESTATE
AND
(Copyright. 1917, by The Record and Guide Co.)
NEW YORK, MAY 5, 1917
SUPPORTS CONSTITUTIONALITY OF ZONING LAW
Real Estate Board, Through Its Law Committee, Files Brief
in Case of Estelle P. Anderson Against Steinway 8b Sons
THE Real Estate Board of New York,
through its Real Estate Laws Com¬
mittee, has filed with the Appellate Di¬
vision of the Supreme Court a brief
supporting the constitutionality of the
Zoning Resolution in the case of Estelle
P. Anderson against Steinway & Sons.
Carrying out the policy laid down
when the case was in the lower court, the
Real Estate Board decided to uphold, in
so far as it could, the constitut.onahty
of the Zonmg Resolution and autliorized
the preparation of a brief. The brief
was prepared by Samuel P. Goldman,
Chairman of the Real Estate Laws Com-
m,ttee, and Walter F. Peacock, of the
committee.
The case grew out of a contract be¬
tween Mrs. Anderson and Steinway &
Sons, by which the latter were to pur¬
chase the property at 112 West SSth
street. Between the time of the making
of the contract and the date set for tak¬
ing title, the Zoning Resolution was
passed. By it SSth street between Sixth
and Seventh avenues was designated as
a residence district. The property was
needed for business use. Justice Green¬
baum in the January Term directed spe¬
cific performance of the contract, but
d-d not pass on the constitutionality of
the Zoning Resolution.
In asking permiss.on to appear antl file
a brief as a friend of the Court, it is
pointed out that "The Real Estate Board
believes the said resolution to be an
enactment of vital import and of unlim¬
ited present and prospective benefit to
the people of the City of New York, and
desires to lend whatever assistance it
may to the Court in sustaining such
resolution."
In the brief it is assumed that Article
3 of the Resolution, regulating the height
and bulk of buildings, and Article 4,
regulating the area of yards, courts and
open spaces, are not questioned as to
their constitutionality. The argument
turns upon .'\rticle 2, which divides the
city into residential, business and unre¬
stricted districts for the purpose of regu¬
lating and restricting the location of
trades and industries and the regulation
of buildings designed for specific uses.
The arguments are based on the police
power of the State.
Tlie language of the Court in the case
of Chief Justice Shaw, in Commonwealth
vs. Agar, is quoted to show how broadly
the police power of a State may be used.
It "was vested in tiie Legislature by the
Constitution, to make, ordain and estab¬
lish all manner of wholesome and rea¬
sonable laws, statutes and ordinances,
either with penalties or xiiithout, not re¬
pugnant to the Constitut'on, as they shall
judge to be for the good and welfare
of the Commonwealth and of the sub¬
jects of the same. It is much easier to
perceive and realize the existence and
sources of the power than to mark its
limitations or prescribe limits to its ex¬
ercise."
A score or more of cases are cited
showing where the Court of .Appeals has
upheld statutes in this and other States
making prohibilary regulations under
the police power and the case of Rein-
man vs. Little Rock is cited, showing
that "So long as the regulation in ques¬
tion is not shown to be unreasonable
and arbitrary, and operates uniformly
upon all persons similarly situated in the
particular district, the district itself not
appearing to have been selected, it can¬
not be judicially declared that there is
a deprivation of property without due
process of law, or a denial of the equal
protection of the laws, within the mean¬
ing of the Fourteenth Amendment."
"From the foregoing," the brief con¬
tinues, "the following propositions are
clearly deducible. The power of the
Legislature itself to pass an act of a
similar character to this Resolution or
to confer power on a municipal agency to
adopt such a resolution or ordinance is
clear, provided that the regulation has
any reasonable tendency to promote the
public welfare, interest, convenience or
general prosperity as well as the public
safety or the public health. The power
necessarily is very broad. It cannot be
exactly defined or limited. Its exercise
depends on the facts of a particular case.
The subjects to which it is applied are
constantly increasing. As the conditions
of living become more complex and the
people crowd more into cities, it be¬
comes necessary for them to live
closer together and the power has been
extended to meet the situation. Unless
it is clear that the regulation has no rela-
tion_ or tendency to promote the public
welfare, convenience, interest or pros¬
perity, the courts will not interfere, it
being held that the question is one, un¬
less such condition i.xists, to be decided
by the Legislature (Du Pont vs. District
of Columbia, supra).
Regulation Demanded.
"There is no doubt in our minds that
the development of real estate, as well
as human progress, demands some such
regulation and restriction on the use of
real estate in the City of New York as
set forth in .Article II of the 'Building
Zone Resolution.' Many matters have
undergone a change. Ten years or so
ago our Court of .\ppeals held that a
statute fixing the number of working
hours for women was void; whereas re¬
cently the same Court has upheld such
a statute. In other words the police
power is one of the 'least limitable' of
the powers of government. It marches
with human progress. If it were other¬
wise the City of New York, especially
the Borough of Manhattan, would very
soon be destitute of residential sections.
It is the police power that keeps garages
out of residential blocks; it is the police
power that prevents saloons from open¬
ing up next to churches, schools, etc. In
a city of five or six millions of inhabit¬
ants dreadful conditions would result if
under the police power unscrupulous
persons were not restrained both in their
persons and in the use of their property.
"The maxim sic utere tuo, ut alienum
non laedas must be enforced. Individuals
forget that maxim, or if not forgetting
it they, throu,gh motives of selfishness
and indifference to their neighbors'
rights, exploit themselves and their prop¬
erty for gain and without any consider¬
ation whatever of the effect their actions
may have on others.
"The benefits to be gained by the City
of New York from the operation of the
'Building Zone Resolution' in respect to
the regulation and use of property are
many.
"Let us recall wliat the Court is very
familiar with or what the Court will
take judicial notice of, namely, the
transformation of certain sections of the
City of New York during the past fif¬
teen years.
'Without any regulations or restric¬
tions on the use of property we find
Fifth avenue from Mth to 23d street
a blighted thoroughfare. This is due
to the character of the buildings and
btisness in the cross streets adjacent
to Fifth avenue and in Fifth avenue it¬
self south of 23d street. For some years
speculation was rife, and without re¬
gard to one's neighbors or the effect
upon the locality generally buildings
were erected for manufacturing pur¬
poses and drove other classes of busi¬
ness from the neighborhood.
"This brought a temporary prosperity
to some real estate interests and an in¬
flation of values to a standard that has
been impossible for the city to main¬
tain for some years past, with the result
that taxable values have decreased to
an alarming extent, and the many prop¬
erties which were improved on the wave
of the boom are found to be in the pos¬
session and ownership of mortgagees.
"It seems impossible to consider an
instance of this kind and retain a doubt
as to the necessity for some regulation
and restriction on the use of property
by the City of New York. It certainly
is for the welfare of the people of the
City of New York to have values main¬
tained on a stable basis. It means a
better city, a healthier city, a more beau¬
tiful city and a more prosperous city.
"We do not regard it a hardship on
one person to say to him you shall not
use your property so as to injure that
of another; tliat the public interest re¬
quires that you maintain your property
for residential purposes; you may find a
purchaser to pay you a large profit on
your property, which he wishes to trans¬
form into a factory; but this you must
forego. Why? Because to build a fac¬
tory on your property will destroy the
desirability of the balance of the street
for residential purposes. Furthermore,
we say to you that it is against the pub¬
lic interest that one owner be allowed,
without regard to anything but his own
selfish interests, to destroy the residen¬
tial character of a neighborhood; the
business you intend for your new build¬
ing may not be a nuisance, but is ob¬
jectionable so far as the public welfare
is concerned.
"This is a progressive age. Cities are
growing at a tremendous rate. The
enormous population of the City of New
York must be cared for; it must be
housed; it must be fed; it must be pro¬
tected from injury by -fire and other ac¬
cidents. The great task of governing a
city of this kind should be made as light
as possible. If in the course of human
events there were no restrictions on
the use of property in a great commun¬
ity 1 ke New York, the result would be
chaos. No one would want to live here
no one would feel secure in his home}
one would be in constant fear and terror
of his neighbor building and operating
a tannery or slaughter house next to his
home. This might have happened in
times past, but the Legislatures of this
State and of other States recognize
the necessity for progressive legisla¬
tion; the people demand it; the Leg¬
islatures give the relief and the courts,
recognzing the progress and re¬
quirements of the age, uphold such leg¬
islation so long as it is in the public in¬
terest."