Columbia University Libraries Digital Collections: The Real Estate Record

Real estate record and builders' guide: [v. 99, no. 2555: Articles]: March 3, 1917

Text version:

REAL ESTATE Hi AND (Copyright, 1917, by The Record and Guide Co.) NEW YORK, MARCH 3, 1917 BENEFITS OF THE NEW ZONING RESOLUTION Some Cases Cited Bearing on the New Law —Property Owners Will Be the Gainers By CARLYLE M. KEYES, of the New York Bar ' I ■ HE new Building Zone Resolution, ■*• passed by the Board of Estimate last July, has been attacked by various parties in suits before the courts. Al¬ ready two cases in which collateral at¬ tacks have been made have been de¬ cided in the Supreme Court. It is to be expected that legislation, which carries the city as far forward in the cause of city planning as does this Resolution, should receive its share of criticism. All legislation which departs from estab¬ lished precedents and enters into new fields of high endeavor must be defend¬ ed actively for a period until it passes from the realm of questioned legislation into that of accepted law. A committee is being formed for the defense of tlie Resolution in all cases that may come before the courts. The Committee on the City Plan has performed its work, with such thoroughness and the Reso¬ lution was passed after such a corriplete investigation of conditions throughout the city, that it would be a backward step if the constitutionality of tlie Reso¬ lution could not be upheld. The Resolution divides the city into various districts and makes appropriate regulations for each as regards location of trades and industries, height and bulk of buildings, and area of yards, courts and other open spaces. The principal ground upon which the resolution will be attacked is the familiar one, which seems stereotyped to the follower of new legislation, viz., that it is an im¬ proper exercise of the police power and a violation of tlie Fourteeiith Amend¬ ment. Fortunately the modern trend of the courts is to eive the police power a very liberal interp-etation, and this is especially true of the United Statgs Supreme Court. A few of the cases upon which the resolution may be de¬ fended may be briefly considered. An interesting case on restrictions as to the use of property is that of Cusack v. The City of Chicago, just decided by the United States Supreme Court and not yet reported. A Chicago ordinance provides that it shall be unlawful to con¬ struct any billboard in any block in which one-half of the buildings on both sides of a public street are used exclu¬ sively for residential purposes without first obtaining the consent in writing of the owners owning a majority of the frontage of the property on both sides of the street. It was claimed that the ordinance was an unrestrained exercise of the police power, which, if given ef¬ fect, could be used without any regard to the safety, health, morals, comfort or welfare of the public and that it, there¬ fore, offends against the Fifth and Four¬ teenth Amendments to the Constitution of the United States. The court, in upholding the constitu¬ tionality of the act, said: The principles governing the exercise of the police power have received such frequent ap¬ plication and have been .so elaborated upon in recent decisions of this court, concluding with Armour & Company v. North Dakota, 240 U. S. 510.514, that a further discussion of them would not be profitable, especially in a case falling as clearly as this one does within their scope. 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 va¬ lidity of laws relating to matters completely within the territory of the State enacting them and it so reluctantly disagrees with the local legislative authority, primarily the judge of the public welfare, especially when its action is ap¬ proved by tbe highest court ot the State, whose people ai-e directly concerned, that it will in¬ terfere with the action of sucli authority only when it is plain and palpable that it has no real or substantial relation to the public health, safety, morals, or to the general welfare. Jacob- son V. Massachusetts, 197 U. S. 11, 30. And this, for tbe reasons stated, cannot be said of the ordinance which we have here, .•\nother recent case is Spann v. City of Dallas, 189 S. W. 999. The City Com¬ missioners adopied a resolution prohib¬ iting the building of business houses in the resident part of the city unless the consent of three-fourths of the property owners within a radius of 300 feet were oljtained. The court upheld the ordi¬ nance on the ground that the city char¬ ter empowered the city to pass all laws essential for the welfare, good order and prosperity of the citizens, and there was nothing to indicate that the commission¬ ers acted arbitrarily or that they did not act solely for the true welfare, comfort and prosperity of the citizens of the city. Hadacheck v. Sebastian, Chief of Po¬ lice of the City of Los Angeles, 239 U. S. 394, is another case in which an ordi¬ nance regulating the use of property in certain districts was upheld. The ordi¬ nance made it unlawful for any person to estalilish or operate a brick yard or brick kiln or any establishment for the manufacture or burning of brick within described limits in the city. The peti¬ tioner was convicted of a misdemeanor for a violation of this ordinance. He was the owner of a tract of land within the limits described in the ordinance upon wliich there was a very valuable bed of clay, where he had made exca¬ vations and erected expensive machin¬ ery. He alleged that if the ordinance were declared valid he would be com¬ pelled to entirely abandon his business and would be deprived of the use of his property. This was a hard case to de¬ cide, but the Court upheld the ordi¬ nance. At page 410 it was said: It is to be remembered that we are dealing with one of the most essential powers of gov¬ ernment, one that is the least limitable. It may, indeed, seem harsh in its exercise, usually is on some individual, but the imperative necessity for its existence precludes any limitation upon it when not exerted arbitrarily, A vested inter¬ est cannot be asserted against it because of con¬ ditions once obtaining. Chicago & Alton R. R. v. Tranbarger, 238 U. S. 67, 68. To so hold would preclude development and fix a city for¬ ever in its primitive conditions. There must be progress, and if, in its march, private interests are in the way, they must yield tc the good ot the community. The logical result of peti¬ tioner's contention would seem to be that a city could not be formed or enlarged against the re¬ sistance of an occupant of the ground, and that if it grows at all, it can only grow as the en¬ vironment of the occupations that are usually banished to the purlieus. A very similar case with a similar de¬ cision is that of Reinman v. Little Rock, 237 U. S. 171, in which it was held that a municipal ordinance passed under the authority delegated by the State Legis¬ lature, making it unlawful to conduct a livery stable business within a desig¬ nated area, is a valid exercise of the police power, provided only that the or¬ dinance is not so unreasonable, arbitrary or unjustly discriminatory as to infringe upon rights granted by the Fourteenth Amendment to the Federal Constitution. A case directly in point on the ques¬ tion of limiting the height of buildings is that of Welch v. Swasey, 214 U. S. 91. The Massachusetts Legislature passed a statute limiting the height of buildings in all cities to 125 feet, and providing for lower limits in certain parts of the City of Boston, to be desig¬ nated by a commission. The commis¬ sion created "District B," in which the height of buildings was limited to 80, or in some cases to 100 feet. The plain¬ tiff wished to obtain a permit for a building 124 feet 6 inches in height in this district, which was refused by the Board of Appeal from the Building Commissioner. The plaintiff sought a mandamus to compel the Board of Ap¬ peal to issue the building permit upon the ground that the statutes unduly and unreasonably infringe upon his consti¬ tutional rights as to the taking of prop¬ erty without compensation and the de¬ nial of equal protection of the laws. The Court, referring to the opinion of the Supreme Judicial Court of Massachu¬ setts, said: In this case the Supreme Judicial Court ot the State holds the legislation valid, and that there is a fair reason for the discrimination be¬ tween the height of buildings in the residential as compared with the commercial districts. That court has also ield that regulations in re¬ gard to the height of buildings, and in regard to their mode of construction in cities, made by legislative enactments for the safety, com¬ fort, or convenience of the people, and for the benefit of property owners generally, are valid. Atty. Gen. v. Williams (Knowlton v. Williams), 174, Mass. 470, 47 L. R. A. 314, 53 N. E. 77. We concur in that view, assuming, of course, that the height and conditions provided for can be ■plainly seen to be not unreasonable or inap- I)ropriate. * * • We are not prepared to hold that this limita¬ tion ot 80 to 100 feet, while in fact a discrim¬ ination or classification, is so unreasonable that it deprives the owner of the property ot its profitable use without justification, and tbat he is therefore entitled under the Constitution to. compensation for such invasion of his rights. The discrimination thus made is, as we think, reasonable, and justified by the police power. It might well be supposed that taller buildings in the commercial section of the city might be less dangerous in case ot fire than in the resi¬ dential portion. • * • Under these circum¬ stances there is no unreasonable interference with the rights ot property of the plaintiff in error, nor do the statutes deprive him of th© equal protection ot the laws. The reasons con¬ tained in the opinion of the State Court are, In our view, sufficient to justify their enactment. Two cases have thus far arisen in the New York Courts involving the new resolution, but the constitutionality of the resolution is not raised in these cases. In Anderson v. Steinway & Sons, re¬ ported in the New York Law Journal for January 23, 1917, at page 1446, an action was brought to enforce specific performance of a written contract for the purchase of certain premises known as No. 112 West S8th street. The con¬ tract contained a clause to the effect that if upon examination of the title it should be found unmarketable, the pur¬ chasers should not be obligated to take title under the contract. The answers set up that after the contract and be¬ fore the delivery of the deed the Board of Estimate passed a resolution making the block in which the property was (Continued on page 284.)