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Real estate record and builders' guide: [v. 98, no. 2526: Articles]: August 12, 1916

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REAL ESTATE AND NEW YORK, AUGUST 12, 1916 VALIDITY OF THE CITY PLAN OR ZONING SYSTEM ADOPTED BY THE BOARD OF ESTIMATE By CHARLES H. PECK, Ass't Solicitor, N. Y. Title & Mortgage Co. BY Chapter 470, Laws of 1914, two new sections were added to the Charter of the City of New York, Section 242a, and Section 242b. These provisions granted to the Board of Estimate exten¬ sive powers to create what is commonly known as the "zoning system"—"to reg¬ ulate and limit the height and bulk of buildings hereafter erected and to regu¬ late and determine the area of yards, courts and other open spaces; * * * to 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." Also: "The Board of Estimate and Apportionment may regu¬ late and restrict the location of trades and industries and the location of build¬ ings for specific 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 desig¬ nating the uses for which buildings may be erected or altered. Such regulations shall be designed to promote public health, safety and general welfare. _ The Board shall give reasonable considera¬ tion, among other things, to the char¬ acter of the district, its peculiar suita¬ bility for particular uses, the conserva¬ tion of property values and the direction of building development in accordance with a well-considered plan." The Act further provides for public hearings, official reports, publication of notice thereof, and further hearings. Far Reaching in Effect. The final report was made June 2, 1916, and the resolution of the Board, embodying the plan, which has the efifect of a statutory enactment, was adopted July 25, 1916. Probably no enterprise ever undertaken under the authority of the city government has been so com¬ prehensive and far-reaching as this, and none that has contained such vast poten¬ tialities to influence real estate uses and values. It is inevitable that the plan will be subjected to the most searching legal criticism: so that any legal opinion concerning it, at the present time, must necessarily relate to the system in prin¬ ciple. It is entirely possible that, even though the system in its general outlines may be upheld by the courts, some of its features may be open to successful attack. The plan has been long under con¬ sideration by men competent to deal with it, and it is unquestionably in har¬ mony with progressive modern opinion as to municipal regulation and better¬ ment. And not least among the merits claimed for it, is that of tending to stab¬ ilize real estate values. These general aspects are alluded to here because they are certain to have great weight in any judicial consideration of the subject, par¬ ticularly in its constitutional bearings. No Compensation. If the Legislature has power to auth¬ orize the establishment of this plan, it must necessarily be because of its so- called "police powers" under the Con¬ stitution. The plan is not in any respect retroactive and no attempt is made to provide compensation for any property rights taken or curtailed. These "police powers" are a compara¬ tively modern development, the applica¬ tion and extension of them bsing largely due to municipal conditions which have arisen through the congested population of large cities. In every State, there¬ fore, in which there are large cities there have been numerous judicial decisions construing various laws attempting to give increased municipal control over particular conditions certain to develop where masses of population are congre¬ gated. For the present purpose, refer¬ ence will be made only to the principal cases in this State and of the Supreme Court of the United States, that may have some application to the plan in question. The most conspicuous of the early cases on the subject is Matter of Jacobs (98 New York 98), which arose under an act passed in 1884 prohibiting the manufacture of cigars in tenement houses. The law was assailed by emi¬ nent counsel and was held by the Court of Appeals to be unconstitutional after an elaborate opinion by Judge Earl, which has since been frequeptly cited. I recall very distinctly the interest the decision excited at the time it was made; and the subsequent tenement house legisla¬ tion was doubtless drawn with regard to the principles it enunciates. It should be read in full instead of quoted from. Compensation Must Be Allowed. In Forster v. Scott (136 New York 577), a section of the New York Charter, providing that no compensation should be allowed to the owner of land taken for a street for any building erected thereon after the filing of the map, was declared unconstitutional and void. "It is not necessary," said Judge O'Brien, "in order to render a statute obnoxious to the restraints of the Constitution, that it must in terms or in effect authorize an actual physical taking of the property or the thing itself, so long as it affects its free use and enjoyment, or the power of disposition at the will of the owner. Though the police and other powers of government may sometimes incidentally afifect property rights^ according to established usages and recognized prin¬ ciples familiar to courts, yet even these powers are not without limitations, as they can be exercised only to promote the public good, and are always subject to judicial scrutiny." See also Matter of New York City, 196 New York 259. Pertinent Decision. The decision of the Court of Appeals most pertinent to the present situation is People ex rel Kemp v. D'Oench (111 New York 359). The opinion is very brief. Judge Earl says: "It is provided In the Act, Chapter 451 of the Laws of 188.5, that 'the height of all dwell¬ ing houses and ot all houses used or intended to be used as dwellings for more than one family thereafter to be erected In the City of New York, shall not exceed eighty feet in streets and avenues exceeding sixty feet in width.' We have no doubt of the competency ot the Legislature in the exercise ot the police power under the Constitution to pass such an act, and the sole question, therefore, now to be determined is, whether the act applies to hotels. We think it does not." This case will no doubt be strongly urged in support of the City Plan, par¬ ticularly in regard to limiting the height of buildings. This feature is probably among the least vulnerable of the entire scheme. A full discussion of the police powers in their ordinary applications is con¬ tained in the opinion of Peckham, J., Health Department v. Rector, 145 New York 2>2. See also People v. Havnor, 149 New York 195; Fire Department v. Gilmour, 149 New York 453; City of New York v. Herdje, 68 App. Div. 370;. Powell V. City of Rochester, 93 Misc. 234; City of New York v. Foster, 148- App. Div. 258; affirmed 205 New York 593; People v. Miller, 161 App. Div.,. 138; City of Rochester v. West, 164 New York 510; People v. Green, 85 App. Div. 400; People ex rel Wineburgh Adv. Co.,. V. Murphy, 195 New York 126. Held Unconstitutional. An Act passed in 1903 declaring a set-- back along Eastern Parkway Extension,, in Brooklyn, but without providing for- compensation, was held unconstitutional in People e.x rel Dilzer v. Calder r89' App. Div. 503). The act establishing. Eastern Parkway with setbacks and re¬ strictions, provided for compensation,, which was awarded and paid. This rule has been very generally up¬ held in all the states in which cases have arisen and by the United States Supreme Court, in Eubank v. Richmond, 226 U. S. 137. See Berry's Restrictions on Real Property, Section 60. In 1898, the Legislature of Massa¬ chusetts passed a law limiting the height of buildings in a certain district in the City of Boston and providing that ovvners of buildings exceeding that height, the construction of which had been cominenced before January 14 of that year, might recover damages. The Supreme Judicial Court of Massachu¬ setts sustained the law; and, on appeal to the Supreme Court of the United States, the judgment was affirmed, but only as to that phase that provided for compensation, inasnrUch as the building in controversy was begun before Janu¬ ary 14. "We have not considered," says Mr. Justice Brewer, "any question of purely State cognizance, nor have we stopped to comment on the suggestion, made by the Supreme Court of the State, that this statute might be sus¬ tained as an exercise of the police power, or if it could be so sustained, that it could be enforced without any pro¬ vision for compensation. Considering simply the distinct proposition so ably presented by the counsel for plaintiflfs in error, we are of opinion that the statute in question cannot be adjudged! in conflict with the Federal Constitu¬ tion." Williams v. Parker, 188 U. S.. 491, 504. This decision was rendered in 1902'.- Five years later, in Welch v. Swasey (193 Mass. 364), the Supreme Court of Massachusetts enforced the suggestion: in the prior case and declared the whole- subject to be within the police powers.. Building Lines. In 1912, the case of Eubank v. City of Richmond (226 U. S. 137) came before the United States Supreme Court, which, decided that a municipal ordinance, auth¬ orized by . statute, requiring the city- authorities to establish building lines in any block on request of the owners of two-thirds of the property was uncon¬ stitutional as an attempt to deprive the non-assenting owners of their property without due process of law. In de¬ livering the opinion of the Court, Mr. Justice McKenna says: