40

boards the regulation is held invalid. The most advanced position on billboard regulation yet taken by any court is the recent decision in Cusack v. Chicago," where an ordinance prohibiting the erection of billboards in residential districts, except upon the written consent of the owners of a majority of the frontage in the block, was sustained. The ordinance was not sustained upon aesthetic grounds. The court finds a relation to public morals and health. Massachusetts has deemed this power inadequate and has attempted to expand the police power by a constitutional amendment of 1918, as follows: "Advertising on public ways, in public places, and on private property within public view may be regulated and restricted by law."

A similar provision was rejected in Ohio in 1912. A statute which imposes reasonable restrictions upon the height of buildings is a proper exercise of the police power.42

Cities frequently desire to project new streets into undeveloped territory in anticipation of future needs and to prohibit the erection. of buildings within the lines of the proposed street, pending the taking of title. Except in Pennsylvania this has not been allowed under the police power.*

43

There has as yet been no thorough testing of the constitutionality of zoning statutes such as the one which went into effect in New York City in 1916, and in Illinois in 1919.44 The Illinois zoning law authorizes cities (1) to limit the height of buildings, (2) to limit the bulk of buildings, (3) to limit the intensity of the use of lot areas, (4) to determine the area of yards and open spaces, (5) to restrict the location of trades and industries, (6) to exclude trades and industries from fixed districts, and (7) to establish residential districts from which buildings designed for business may be excluded. The act provides that no ordinance shall deprive owners of existing property of the right to continue the use of the property for the purpose for which it was employed at the time any such ordinance goes into effect. The owners of a majority of the frontage in any district, by written objection, may prevent the enforcement of the ordinance. The Cusack case, sustaining an ordinance prohibiting the erection of billboards in residence districts except upon the written consent of the owners of the majority of the frontage in the block, is a fairly strong authority for the constitutionality of the Illinois act, but it remains. yet to be seen whether the courts will extend the rule of that case to justify such regulations as are sought to be authorized by this statute. In Massachusetts it has been assumed, apparently, that the decisions. which concern the constitutionality of zoning statutes do not go far. enough to make certain the constitutionality of such acts, and accordingly by constitutional amendment of 1918, it was provided that:

49 Haller v. Training School. 249 Ill. 436 (1911).

41 267 II. 344 (1914): 242 U. S. 526.

42 Welch v. Swasey, 193 Mass. 364, 214 U. S. 91; Cochran v. Preston, 108 Md. 220.

See the analysis of the cases bearing planning powers in the report of the 199. by Edward M. Bassett, Special York City.

43 Forrster v. Scott, 136 N. Y. Suppl, 577; Edwards v. Bruorton, 184 Mass. 529; Bush v. McKeesport, 166 Pa. St. 57. on the constitutional limitations on city Conference on City Planning, 1917, p. counsel to the Zoning Committee, New 44 Illinois Laws, 1919, p. 262.

"The General Court shall have power to limit buildings according to their use or construction, to specified districts of cities and towns."

It is obvious that the problem of the lot remnant is distinctly one of eminent domain and not of the police power. Assuming the constitutionality of the Illinois Zoning Act, control over the height, bulk, location and area of buildings which are to be erected in the future may be had, to the extent that the owners of the majority of the frontage, in the district affected, consent. The act does not and probably could not authorize the imposition of restrictions upon the architectural style and upon the value of the buildings to be later erected. The act falls short of conferring upon cities such control over building development as may be exercised by a grantor of city lots through restrictive covenants in deeds. Changes in existing properties, and control over the general architectural type of buildings to be erected can probably be accomplished only by the exercise of the power of eminent domain.

List of constitutional provisions authorizing excess condemnation. Constitutional amendments providing for excess condemnation have been adopted in Massachusetts (1911), Ohio (1912), Wisconsin (1912), New York (1913), and Rhode Island (1916). Amendments of a broader character than those actually adopted in New York and Wisconsin were defeated in New York in 1911 and in Wisconsin in 1914. An amendment similar to those adopted in Ohio and Wisconsin failed in California, in 1914, 1915, and 1918. An amendment similar to the ones adopted in Massachusetts, New York, and Rhode Island, failed of adoption in New Jersey in 1915.

V. EXCESS CONDEMNATION.

Lot Remnants. The problem of the lot remnant left by the opening or widening of streets did not present itself acutely in Illinois until the city of Chicago undertook to carry out its extensive program of municipal improvements. Upon the formulation of the city plan several years ago this problem was anticipated, and it was urged that the city should be granted power to condemn lot remnants for the purposes of facilitating their union with adjoining property.1

The recent widening of Twelfth Street and Michigan Avenue, and the survey of the proposed Ogden Avenue extension in the city of Chicago present the problem of lot remnants in striking form. The Price property located on Twelfth Street and Wabash Avenue is said to be the most flagrant example. The situation with respect to this. property is as follows: The Price property had a frontage of 166 feet on Twelfth Street and 71 feet on Wabash Avenue. The city took 68 feet of the 71 feet on a frontage of 166 feet. This taking left a lot remnant of 166 feet fronting on the widened street with a depth of 3 feet. The loss to the city appears from the following figures. The city paid $204,000 for the 68 feet taken, that is, at the rate of $3,000 per front foot on Wabash Avenue. The Supreme Court held the remnant was damaged and not benefited and for this damage the city paid $9,000, that is $3,000 per front foot. The city, therefore, paid the owner as much for the property which was not taken as it paid for the land taken. Had it been allowed to take this remnant, which it paid for in full, it could have recouped at least a portion of this cost by sale to the owner of the adjoining property.

special assessment which In this case the 50-foot For the 25 feet nearest

The city also loses in the amount of the can be levied against the property in the rear. lot behind the remnant was assessed $14,200. Twelfth Street it was assessed $140 per front foot, or $11,000; for the next 25 feet, $128 per front foot or $3,200. Had the remnant been united with the adjoining property, at this rate, such remnant as a part of the other property, would have borne an assessment for benefits of $1,320, instead of a damage of $9,000. As a matter of fact, however, this three-foot strip and the rear property would have been

1 Legal Aspects of the City Plan, by Walter L. Fisher, in the report on "Plan of Chicago" by the Commercial Club of Chicago.

2 Chicago Bureau of Public Efficiency. Report on Excess Condemnation, Sept. 1918. This report discusses this problem in Chicago in detail and presents several diagrams showing the size and shape of the remnants which have been left. The Report of the Committee on Taxation of New York on Excess Condemnation contains a number of photographs and diagrams of lot remnants in New York City.

assessed at a rate higher than $440 per front foot, for they could then have been assessed as corner property. The probable increase in the assessment rate over $440 per front foot if it had been corner property appears roughly from a comparison of the assessment on corner property lying to the east and fronting on Michigan Avenue. Here, the whole of the original corner property was taken and a small part of the lot in the rear was taken but there was left to this lot a frontage of 32 feet on Michigan Avenue and a new frontage on Twelfth Street of about the same length, so that it now became corner property. This lot was assessed $1,220 per front foot, or a total of $60,000 as compared with the assessment of $440 per front foot on the lot on Wabash Avenue which was blocked off from the new street by the remnant. Michigan Avenue property is about twice as valuable as Wabash Avenue property at this point. After making this deduction, it appears that the first 32 feet of frontage on Wabash Avenue should have been assessed $30,000. Actually this 32 feet was assessed but $11,500— nothing for the first 3 feet, $11,000 for the next 25 feet and $500 for the remaining 4 feet. The city lost the difference between $30,000 and $11,500, or $18,500, plus the $9,000 paid as damages for the 3-foot strip, making a total loss of $27,500.

The report of the Chicago Bureau of Public Efficiency, from which the above facts are taken, states that 617 feet of frontage of the Michigan Avenue widening, out of a total of 3,000 feet affected, will have depths of from 5 to 14 feet. Approximately one-fifth of the frontage on one side of the Michigan Avenue improvement is thus made up of remnants. The proposed Ogden Avenue extension will leave 93 remnants, with a frontage of approximately 3,300 feet on the proposed new street, too small for building purposes.

From these facts the primary reasons for allowing the condemnation of lot remnants are apparent. There is an unquestionable direct loss to the city. There is also a loss to the property owners in the neighborhood. The history of lot remnants in several cities shows that they are apt to remain in separate ownership for years. They cannot be used for building purposes. The street is thus left in an ugly and irregular appearance. Frequently this condition is accentuated by the use of the small area for billboards or other structures of temporary nature out of keeping with the general character of the neighborhood. The development of the street is greatly retarded and the normal increase in real estate values is checked. The improvement is thus robbed of much of its effectiveness and the general utility of the district is greatly impaired.

It has sometimes been urged that the taking of the remnant is unnecessary because its union with the adjoining property can be brought about through private sale or at most by authorizing the city to buy the strip if the owner is willing. The experience of New York does not justify this hope. The union of the two properties is dependent largely on the price asked for the remnant. The history of such parcels shows that the main obstacle is the wide difference of opinion as to price between the owner of the remnant and the proposed purchaser.

The city, not primarily desiring pecuniary gain from this strip, would be in a much better position to cause the two properties to be united. Where the remnant is owned by several persons having different interests and some of them under disability the obstacles to a private sale are great.

Investigations into the lot remnant problem have led to the conclusion that the city should be given the power to condemn these illshaped strips of land.

The Massachusetts Committee on Eminent Domain, which made an exhaustive study of excess condemnation here and in Europe, says in its report, "It often happens that the owners of these remnants, desirous of deriving some income, erect temporary structures, unsuited for proper habitation or occupancy. Such structures are frequently made intentionally objectionable, both in appearance and in the character of their occupancy for the purpose of compelling the purchase of the remnant at exorbitant prices. The result is that a new thoroughfare, which should be an ornament to the city, is frequently for a long period after its construction disfigured by unsightly and unwholesome structures to the positive detriment of the public interests."

The Committee on Taxation of the City of New York, in its report on Excess Condemnation, reaches a similar conclusion. "New York furnishes several 'horrible examples' in cutting new streets through sections already built up without excess condemnation. Excess condemnation would leave the city free to rearrange and subdivide the land fronting the improvement into plots of the size and shape best suited to the proposed development."

The Chicago Bureau of Public Efficiency, in its recent study of this problem, concludes that "If in future projects the difficulties are to be avoided which the city has met in the building of the Michigan Avenue boulevard link and the widening of Twelfth Street, the City must be given a free hand so that it can deal with this problem, rearranging the lots in a block to conform to the new street, thus making them available for building purposes. When remnants are left it is essential if the street is to be developed speedily that such remnants be united with adjoining property under a single ownership so that the combined plots can be made suitable for building sites."5

6

Writers on the question have reached similar conclusions. It will also be noticed from the texts of proposed and adopted constitutional amendments in the appendix that in all of those states, except in New Jersey, where the language of the proposed amendment limited the power of excess condemnation to the taking of remnants, the provision has been adopted.'

3 Massachusetts House Document 228, (1904), p. 5. Report, 1915.

Report on Excess Condemnation, Sept. 1918, p. 36.

Flavel Shurtleff and Frederick Law Olmsted, Carrying out the City Plan; Lawson Purdy, Report of the Conference on City Planning, 1911, p. 121; Herbert S. Swan, Report on Excess Condemnation, prepared for the Municipal League, published by the Committee on Taxation of New York; Robert E. Cushman, Excess Condemnation, p. 72; Ernst Freund, Conference on City Planning, 1911 p. 242.

* Massachusetts, New York and Rhode Island.