Columbia University Libraries Digital Collections: The Real Estate Record

Real estate record and builders' guide: [v. 99, no. 2564: Articles]: May 5, 1917

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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."