FOOTNOTES:
[166] See page [248] of this Appendix for the amendment which passed in 1913.
APPENDIX B
EXTRACTS FROM REPORT ON ENGLISH AND CONTINENTAL SYSTEMS OF TAKING LAND FOR PUBLIC PURPOSES
From Massachusetts Documents, 1904. House No. 288 of 1904 and House No. 1096 of 1904
THE REPORT OF COMMITTEE
It has clearly appeared, from the evidence submitted to us, that the present system of laying out new streets or widening or altering existing ones, under which only the land actually required for the street is taken, is, especially in those parts of cities which are covered with existing buildings, productive of serious public disadvantages; and a brief consideration of the matter is sufficient to show that this difficulty is inherent in the system itself, and must persist unless some modification of that system can be devised.
The land abutting on any existing street is divided and arranged in lots, which, as well as the circumstances have admitted, are adapted to the street in its present condition, and the buildings thereon are constructed in conformity therewith. Any widening of the street not only destroys the existing buildings, but, by reducing the size of the abutting lots, leaves the residues or remnants of many of them of such shape and size as to be entirely unsuited for the erection of proper buildings, unless and until these remnants have been united with the adjoining properties, generally with those in the rear, which are thus enabled to extend out to the new street lines.
The same condition is found, and frequently even to a greater extent, when a new thoroughfare is laid out through existing blocks covered with buildings.
Hence, when an existing street is widened or a new thoroughfare is laid out under the present system, the lots on one or both sides of the new or widened street are left in such condition that, until a rearrangement can be made, no suitable buildings can be erected thereon, and the public benefit to be derived from the improvement is in great measure lost.
The street may be valuable as a thoroughfare or as one for through traffic, but not for either business or residence purposes; and striking instances of this have been presented to the committee in connection with street improvements in the city of Boston.
Not only is such a situation a great disadvantage to the city, in hindering and sometimes preventing its proper development, but it will easily be seen that this state of affairs renders the collection of betterment assessments extremely difficult, since the benefit to the surrounding property, which should accrue from the improvement, is actually not received until these residues or remnants have been united with the adjoining lots,—a process which, under the present system, may take years.
It often happens that the owners of these remnants, desirous of deriving some income therefrom in the meanwhile, erect thereon temporary structures, unsuited for proper habitation or occupancy; and such structures are too frequently made intentionally objectionable, both in appearance and in the character of their occupancy, for the purpose of compelling the purchase of such remnants at exorbitant prices; with the result 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. These results, which seem inevitable under the present system, may operate to prevent the undertaking of much-needed street improvements.
Furthermore, it is believed that the taking of whole estates, instead of taking the greater part and leaving an undesirable remnant, would not materially increase the initial expense of the undertaking; inasmuch as a city which takes, under the present system, so much of an estate as to leave the remainder unsuited for building purposes, is often obliged to pay for the value of the part taken, and for the damages to the remaining part practically as much as it would be obliged to pay for the whole estate.
What has been said above indicates the public considerations which render a change in the existing system desirable.
There is also, however, another side to the question, viz., that of the private owner, the consideration of which appears to point to the same conclusion. It frequently happens that an owner, the greater part of whose estate is necessarily taken for a public work, would prefer not to be left with the remnant on his hands, and if an opportunity were offered, would voluntarily request the city to take the whole estate. Many people recognize that there is less opportunity for differences of opinion upon the question of the market value of a whole estate than over the more complicated question of the value of the portion which has been taken, and the damages to the remainder by reason of such taking; and hence a system under which the city could acquire the whole estate would be productive of greater ease in the settlement of damages, and less likelihood of litigation over the question involved therein.
This right of the private owner to require the taking of the whole estate, when the residue, after deducting what is actually needed for the public work, is unsuited for the erection of appropriate buildings or is reduced below a certain area, is almost universally recognized both in England and on the continent of Europe. It has also received recognition in this State, in chapter 159 in the Acts of 1867, relating to the widening of Oliver Street in the city of Boston, which act, after empowering the city to assess the cost of the improvement upon the abutting estates, provided that any owner, part of whose land was taken, might before the assessment elect to surrender his whole estate to the city, which should pay therefor its full value as it was before the improvement was made, and should have the right to resell the portion not required for the new street.
The constitutionality of this act was upheld in the case of Dorgan vs. Boston, 12 Allen, 223.
With regard to the acquirement by compulsory taking of land beyond the limits of a given public work, we find that two different systems have prevailed:—
1. The taking, in addition to the land actually required for the public work, of all the property within certain bounds in the neighborhood of the proposed work; the rearranging of the lot lines of the property so acquired; and the disposal of this property by sale or lease for the benefit of the city.
2. The taking, in addition to the land actually required for the public work, of such residues or remnants of lots only which, in consequence of the taking for the public work, will be left of such shape and size as to be unsuited for the erection of proper buildings; and also of such portions of the adjoining properties as it may, in consequence of the refusal of their owners to purchase these remnants, be necessary to acquire, in order to make proper building lots abutting on the proposed street.
In favor of the first system, it has been urged that, in consequence of the carrying out of the proposed public work, there will be an increase in value of the surrounding property, caused by no act of its owner, but entirely by the act of the public body, and at the public expense; that it is inequitable that such increase in value should not accrue to the public, to the expenditure of whose money it is solely due; that the method of acquiring the abutting property in the neighborhood is the best method of securing such benefit to the public; that it is far simpler and more equitable than any system for the collection of betterments; and that, if the owners of the abutting property are paid its full value as it was before the improvement took place, they have no cause to complain.
This is the system which, in substance, has been adopted for important street improvements in many cities of Great Britain, Belgium, Switzerland and Italy and has, we are informed, been on the whole successful in its operation, and is believed in certain cases to have materially reduced the cost of public improvements.
As against this system it is urged that the State ought not to dispossess the private owner of his property simply in order that the public work may be carried on at less cost, through resale of the property so acquired; that the expense of public works should be met by taxation, and not by the taking of private property for no other purpose than to benefit the public exchequer by its resale; that the power to take property for such purposes as is contemplated by the first system is practically a power to enter into a land speculation, which may result disastrously.
In the case of our cities, there is the further objection that the adopting of such a system might easily carry the initial cost of an undertaking beyond the debt limit of the municipality.
In support of the second system, it is urged that the ends of public necessity and convenience, for which private property may properly be taken, can all be accomplished by limiting the taking, in addition to the land actually required for the public work, to such remainders of lots as are by themselves unsuited for proper building purposes, and by uniting them to the adjoining properties, compulsorily, if necessary; and that the right to take private property should not be extended beyond these salutary limits.
Such is the system which, originally established for the city of Paris, has now been extended to many of the other important cities of France, and under which many of their great improvements have been carried out; and such a system should, it would seem, if fairly and judiciously applied, be ample to our needs.
In the draft of an act herewith submitted we have, in substance, adopted this plan, and believe that it will be time enough to consider adopting a more comprehensive scheme if the plan proposed shall, after a fair trial, be found insufficient to our needs.
It would appear that, in order to give such a system its full value and effect, its operation should be extended to parcels of land comprised within the limits of streets which are discontinued in consequence of the laying out of new streets, so that such parcels could be united to the land abutting thereon.
This has been found to be advisable in the practical application of the law in France; and in the plan for such a law, herewith submitted, we have attempted to make such additional provision.
With regard to the provisions as to taking the land of an adjoining owner who does not accept the city’s offer to sell to him the parcel which the city has acquired outside of the limits of the proposed public work, it should be added that in our opinion such takings would in practice be of quite rare occurrence. Such owners are usually desirous of acquiring parcels which give them access on new or widened highways, if this can be done at fair prices, but are unwilling to pay the exorbitant prices which are often asked for such parcels. As the very fact that a residue or remnant of a lot had under the proposed act been acquired by the city would show that it had been adjudged that the remnant was by itself unsuited for the erection of buildings, the only uses that could consistently be made of it would either be to leave it open, thus destroying the utility of much of the street frontage, or to unite it with the adjoining property; and, were the owner of the adjoining property to feel that the only possible courses open to the city were either to leave the lot vacant or to sell it to him, he probably would offer but a nominal sum for it.
The purpose of these provisions, therefore, is to enable the city to receive fair prices for these remnants, and to control the character of their development.
We have been urged to consider, and have considered, the desirability of insisting on certain architectural requirements, to ensure greater symmetry and harmony in the constructions which front on and frame our principal avenues. It has seemed to us that such requirements could not well be embodied in such an act as we have submitted, and were probably beyond the scope of our mandate. We have, however, provided that, in disposing of any land acquired outside of the lines of the new street, the city might impose restrictions thereon; and it is our expectation that in framing those restrictions due regard would be had to ensuring the architectural symmetry of the new street.
It would, in our opinion, often be of great benefit to the city to impose such restrictions for a limited term of years upon all property abutting on a new or widened street; and this might be done, whether any portions of such property were acquired by the city or not; in other words, even were the street to be laid out under the present highway acts. While it might not be desirable to attempt to embody the details of such restrictions in a general act, the power to impose such reasonable restrictions as should be found necessary to ensure the architectural symmetry of the new street might be conferred by a general act, containing provisions for the payment of the damages, if any, resulting from the exercise of such powers.
It should be noted that this question has been successfully dealt with in connection with the new streets of London, by requiring that the façade plans and elevations of the new buildings to be erected thereon should be submitted to the approval of the municipal authorities, which approval, however, is not to be “unreasonably withheld”; and providing for a decision on the plans by an umpire, viz., an architect selected by the president of the Royal Institute of Architects, in case the city and the private owners failed to agree.
The question of the constitutionality of the proposed enactment has of course presented itself, and deserves careful consideration. The committee is, however, of the opinion that it was not the intention of the Legislature, in passing the resolve under which the committee was appointed, that the committee should attempt to advise the Legislature on this important question of constitutional law. The supreme judicial court is made by the constitution (chapter III, article 2) the adviser of the Legislature on such questions, and either branch of the Legislature is given authority to require the opinion of the justices of that court thereon.
It seems, however, proper to direct the attention of the Legislature to the fact that a law which should authorize a municipality to take the whole of those lots, so much of which is actually required for the public work that the remainder will not be of such size or shape as to be suitable for the erection of proper or wholesome buildings, would not be open to such serious or grave constitutional objections as one which, purely for the purpose of effecting a saving in the cost of carrying out a given public work, should authorize a municipality to take private property to a much greater extent than is needed for the work, and, by sale of the surplus, to receive the benefit of the increase in value given to that surplus by the public work in question.
The taking of the whole of those estates the remnants of which would not be suited for the erection of proper buildings may well be deemed a taking for those public uses for which building regulations and those limiting the height of buildings on public areas have been upheld.
Furthermore, the supreme court of this State, in the case of the Copley Square restrictions (Attorney General vs. Williams, 174 Mass. 476, 478), has laid down the principle that “the uses which should be deemed public in reference to the right of the Legislature to compel an individual to part with his property for a compensation, and to authorize or direct taxation to pay for it, are being enlarged and extended with the progress of the people in education and refinement. Many things which a century ago were luxuries or were altogether unknown have now become necessaries.” And these principles are widely recognized today.
The union of such remnants or remainders to the adjoining properties, either by their sale to the owners of such properties or by the taking of so much of such properties as when added to such remainders will make lots which are suitable for the erection of proper or wholesome buildings, would seem to be essential, if the public ends for which such remainders are taken are to be accomplished; and the right to authorize such takings of adjoining properties would seem to follow, if the taking of the remnants is considered a taking for a public use.
There are doubtless cases in which the Legislature might authorize the taking of the whole of the land comprised within a certain area, and its subsequent resale. It seems to be clear that the right exists, whenever such a course is desirable in order to abate a nuisance or remedy conditions inimical to public health; and that the Legislature may authorize the municipality, after having abated the nuisance or remedied such conditions, to resell the whole or any part of the property as acquired. This power has been frequently exercised, the most notable instance perhaps having been chapter 308 of the Acts of 1867, relating to the Church Street district in Boston, the constitutionality of which enactment was upheld in the case of Dingley vs. Boston, 100 Mass. 554.
There may be other cases in which such extended takings would be upheld, but, for the purposes of the legislation which we have recommended, the consideration of such cases would not seem to be necessary.
MUNICIPAL REAL ESTATE OPERATIONS IN CONNECTION WITH STREET IMPROVEMENTS IN PARIS AND LONDON, House Doc. 288 (pp. 53-56)
The experience of Paris and London teaches that it is unwise for a city to attempt to recover a part of the cost of street improvements by taking more land than is required for the streets themselves, with a view to intercepting the increases in value which the improvements may give to the adjoining land. In this respect the experience of the provincial towns of England has not differed materially from that of London and Paris.
Experience teaches that, while the effect of street improvements upon land values often is uncertain, there is, upon the whole, an increase of values that would lessen materially the cost of street improvements, if cities could collect that increase by means of so-called “recoupment.” But thus far “failure of administration” has defeated the efforts of cities to collect the so-called unearned increment arising from street improvements.
That failure of administration has resulted from the persistent failure of public opinion to correct the practice of juries of giving awards “contrary to the facts and the law” to the persons whose lands are taken for public use; and from the persistent failure of the Legislature to correct the obvious shortcomings of the law. For this failure of public opinion and of the Legislature there are various reasons. In the first place, it has been entirely impossible to overcome the public sympathy with the private individual against whom the city was proceeding. That sympathy is based largely upon the notion, ineradicable from the mind of the average citizen, that the city, like the State, has large resources upon which it can draw, and which it can replenish without in any way affecting the citizen. This sympathy with the individual and this optimism as to the city’s resources acted with all the more freedom from check, since the laws which authorized the cities to go into real estate speculations for the purpose of recovering a part of the cost of street improvements were not enacted in response to any general or compelling conviction of the body of the citizens, that the cost of street improvements must be reduced. The average man takes no permanent interest in the question of the cost of public improvements; and laws of the kind here discussed are enacted only in consequence of the activity of a small body of citizens, who appreciate keenly the necessity of husbanding the city’s resources. When such laws, which have been enacted without the support of an intelligent and compelling public spirit, come to be administered by the average juror, the city’s interests inevitably are lost sight of, in the desire to do ample justice to the individual whose property the city takes by compulsory powers.
Turning next to the question whether the cities whose operations have been examined have been able to sell to the best advantage the lands acquired, the answer once more is in the negative. Baron Haussmann, summing up his vast experience with city activity and private activity in Paris in 1852 to 1869, said that private enterprise had innumerable ways of nursing and developing real estate that the city neither could invent nor imitate.
In conclusion, it may be added that in Paris there has been since 1876 an exceedingly intelligent minority which has held that the city should not itself execute any more street improvements, but should leave such operations to private enterprise, subsidizing the latter for that purpose.
In London, the Metropolitan Board of Works was succeeded in 1889 by the London County Council. The latter body in 1890 asked Parliament for permission to supplement the practice of “recoupment” by the so-called American practice of assessing a betterment tax upon property enhanced in value by public improvements. One may, perhaps, go farther, and say that the London County Council was ready to place its main reliance upon the practice of assessing a betterment tax, and to relegate to a subsidiary position the practice of recoupment. Be that as it may, the London County Council, from 1890 to 1898, declined to proceed with any large improvement schemes, because Parliament refused to give it power to employ the betterment system as extensively as it desired to employ it. In 1898, or 1899, Parliament yielded, and the London County Council proceeded with the Strand improvement scheme.
REPORT ON THE FRENCH SYSTEM FOR TAKING LAND BY RIGHT OF EMINENT DOMAIN. House Doc. 288, pp. 44-52
In order to appreciate the system which obtains in France for taking land by right of eminent domain, it should be understood at the outset that the initiative for the construction of public works is rarely taken by the local deliberative body, the municipal council, for instance, but almost always by the executive, or, as they would term it, the administration, the head of which is the chief of the State, with his various ministers, while the prefect in each department and the under prefects and other officers represent the lower ranks of the administrative hierarchy.
This fact explains why the preliminary procedure, which has for its object to determine with careful regard for private interests the exact limits of the land required to be taken, is, even when deliberative in character, considered a part of executive rather than of legislative functions.
Provisions for compulsory taking of land outside the limits of the proposed public work:—
By a decree of March 26, 1852, it was enacted that: “In any plan for taking land for widening, relocating or laying out streets in Paris, the administration may include the whole of each lot affected, whenever it shall consider that the residue will not be of such size or shape as to allow the erection of wholesome constructions. It may also include in the taking lots outside of the street lines, whenever it is necessary to acquire them in order to discontinue former public streets which have been deemed useless. The portions of lots which have been taken outside of street lines and which are not capable of receiving wholesome constructions shall be united to the adjoining properties either by agreement or by the taking of those properties.”
In order to include in the taking any portion of a lot outside of the street lines, it is necessary, whenever this is practicable, that it should be included in the plan submitted to the preliminary inquiry; and in all cases such proposed takings must be shown on the detailed plan submitted to the second inquiry above referred to, and if the owners opposed the taking, and since 1876, even in the absence of opposition, the decree which determines the limits of such takings is rendered, not by the prefect, as in the case of the property included in the street lines, but by the council of State.
The provisions of law for uniting these portions of lots acquired outside of the street lines to the adjoining properties contemplate a careful appraisal of such portion, to determine its value to the adjoining owner under all the circumstances of the case, the offering of it to such owner at the appraisal value; and if he fails to accept the offer within a week from its receipt, the administration may proceed to take his property for the purpose of uniting the remnant to it, and then reselling the whole.
The provisions of this decree of March, 1852, originally passed for Paris only, have since been applied to most of the important cities of France.
Attention should be called to the fact that under the provisions of the law of April 13, 1850, all the land within fixed limits may be taken whenever required in order to abate a nuisance, or in the interest of works for the improvement of the public health, and the surplus, after completion of the works, sold at public auction.
It is stated, however, that in comparison with the law of March, 1852, that of April 13, 1850, has been rarely applied.
The law of Sept. 16, 1807, contains provisions for the assessment of betterments, according to which private property which has received a marked increase in value from the opening of new streets or squares, the construction of quais and other public works, may be assessed a betterment to the amount of one-half of such increase in value; but this can only be done by an order of the head of the State, passed in State council.
The amount of the tax is determined by a special commission formed for the purpose.
The power to assess such tax seems rarely to have been employed; it is said that not more than twenty instances of its exercise can be found in all France from the passage of the law up to 1886; and, although formerly applied in some instances to cases of street improvements in cities, it seems for the last fifty years, or since the enactment of March, 1852, above referred to, to have been employed only in cases where the special benefit was of an exceptional character, as when arising from the construction of levees, dikes or a series of quais.
House Doc. No. 1096, Supplemental Report pp. 4-10
The effect of these provisions and of those of the French law, which place all administrative matters under the control of the administrative courts of which the Council of State is the highest, and remove them from the jurisdiction of the regular courts, is to make the Council of State practically the sole judge of the extent to which these powers should be exercised, and of the size of the remnants which may be taken, and hence the extent to which such takings may be made under the law is almost entirely dependent on the attitude of the Council of State.
There appears to be no question that at present, and indeed for many years past, substantially since the establishment of the present Republic, the attitude of the Council of State has been to limit as far as possible the application of the law which authorizes the taking of such remnants, and to permit any owner who desired to retain the ownership of the remnant of his estate to do so, provided it were in any way possible to erect on such remnant a building which would comply with the requirements of the building law regarding light and air.
This attitude appears to be taken through solicitude for the wishes of the individual owner, and to a theoretical assumption that, as takings by eminent domain are in derogation of common right, they should be restricted, as far as possible, and is doubtless due in large measure to the reaction from the former régime, when private and personal rights were subordinated to the wishes of the administrative government.
The contrast between the position now taken by the Council of State regarding these matters and that taken under the empire may be gathered from a comparison of the size of the remnants the taking of which was formerly authorized by the Council of State, and of those the taking of which it now refuses to authorize.
In 1896 and 1897 there was constructed that portion of the Rue Reaumur connecting the Place de la Bourse with the Boulevard Sebastopol, which lies between the Place de la Bourse and the Rue St. Denis. Although the actual taking of the land occurred in 1894-95, shortly before the construction, the decree which authorized the taking and determined its limits had been made thirty years before, viz., in August, 1864, under the second empire, and that decree authorized the taking of remnants as large, in some instances, as 5,000 square feet in area.
These remnants were resold for building lots, and in some cases the remnant, which had been taken as being too small to allow the erection of a wholesome building thereon, was divided into two lots, each of which was sold by itself for a building lot.
In contrast with this somewhat extralegal method of procedure, should be set the following example of the present application of the law.
The city of Paris has lately, in connection with the development of the land formerly occupied by the Trousseau Hospital, found it necessary to construct some new streets, the laying out of which left certain remnants of estates which the city desired authority to take.
In this case the Council of State refused to approve the taking of those remnants whose area exceeded 650 square feet, while it authorized the taking of those whose area was less than this.
These two instances may fairly be considered as typical of the difference between the former régime, under which the takings in connection with street improvements were often made without regard to the fact that the law only authorized the taking of those remnants which were unsuited for building purposes, and the present régime, where the application of that law is so limited as, in the opinion of some, to defeat in certain cases the purpose for which it was enacted, viz., to ensure that all the lots abutting on the new street should be suited to the erection of proper buildings.
It is important to note that in the case last mentioned (that of the Hospital Trousseau), the request of the city for authority to take those remnants which the Council of State declined to authorize it to take did not appear to have been made for the purpose of securing the profit from the resale of those remnants; nor was the request refused because it was thought to have been so prompted.
That purpose was neither avowed by the representatives of the city, nor would it be inferred from examination of the plan, nor were the members of the Council of State inclined to attribute it to the city or to its representatives.
The difference between the city and the Council of State was rather one of opinion as to the size of the remnant which should or should not be deemed suitable for building, the Council being inclined to place the limit of size lower than were the officials of the city; and it seemed probable that were an opportunity offered to the officials of the city to present their views on this matter before the Council of State, which is not done under the present practice, the standard desired by the city might be adopted.
However this may be, and it would seem that in certain cases at least the limit of the size of a remnant which an owner should be permitted to retain had been placed too low, there appears to be no doubt as to the general consensus of opinion today among those most conversant with such matters in Paris, whether members of the city administration or of the Council of State, that extended takings of land outside of the lines of proposed new streets solely for the purpose of securing for the city the profit from the resale of the land so acquired are neither proper nor desirable.
The increased initial expense involved in such takings was an important reason given for this opinion, and the uncertain length of time required for the disposal of the property another. The taking of remnants properly so called, that is, of such residues of lots as were by themselves unsuited for building purposes, was not considered as open either to these or to the other objections urged against the taking of land solely for the purpose of resale.
The increased expense caused by taking such remnants was, especially where the land had been built upon, but slight.
In any event the land taken for the street had to be paid for, and where part of a building was taken the city was invariably obliged to pay for the whole, the damages to the tenants were the same practically whether the whole estate or only a part was taken, and thus the sole difference in expense between taking the whole estate or leaving a remnant was the difference between the value of the remnant at the time of taking and the damages caused it by the taking for the street, which must be paid if the remnant was not taken, and this difference was not great.
Furthermore, such remnants were found to be readily salable, the adjoining owner almost always being desirous of securing the frontage they afforded on the new street and ready to purchase them at a fair price, which more than compensated for the increased cost of taking them; so that only in rare instances had it been necessary to have recourse to the power of taking the adjoining estate for the purpose of completing a remnant.
It seems clear that much of the effort which Paris has made to reduce the expense of street improvements by taking additional land in the hope of profiting by its resale has been due to the lack of a satisfactory betterment law, and now that the attitude of the Council of State is opposed to further takings simply for the purpose of resale the attention of the municipal authorities is more and more directed to securing a satisfactory method for the assessment and collection of betterments.
The present attitude of the Council of State as to permitting the taking of land outside the limits of the street simply for the purpose of profiting by its resale has had a marked effect on the proposals made to the city for the completion of the Boulevard Haussmann, to which reference is so often made.
Until the fact that the Council of State would no longer permit extended takings for the purpose of profiting by the resale of the land so acquired was generally understood, the proposals made to the city contemplated that in addition to the 88,888 square feet required for the street it should take abutting estates of 99,457 square feet in area, the whole at an expense of $10,000,000, for which the city would have become liable in the hope that it might recoup itself by the revenue to be derived from long leases of the surplus land and from its resale at the expiration of those leases. The city was either to advance the bulk of the money required for the new buildings to be erected on those lots or to permit them to be mortgaged for that purpose.
If the expected rents were realized during the period anticipated, the burden on the city would have been little or nothing, while if they were not, the city might have been obliged to bear the burden of the interest and sinking fund charges on the whole $10,000,000, and those on the mortgage also.
It being now recognized that such a taking will not be permitted, the latest proposition made to the city was to the effect that the owners of the most important of the abutting estates were prepared to give to the city 50,783 square feet of the land required for the street, considerably more than one-half, provided the city would build the street, pay the damages to their tenants and release them from any betterment assessment.
The expense to the city was thus reduced from $10,000,000 to about $4,000,000 (the tenants’ damages in each case being estimated at about $2,000,000), and though all expectation of profit except from increased receipts of taxes was abandoned, this material reduction rendered it much more possible for the city to undertake the work; and were an assessment of betterments to be made on those estates which did not contribute to the street the expense could be further reduced.
In what has been said above, the present and the past attitude of the authorities of Paris, and of the Council of State, toward takings of land outside the limits of proposed new streets solely for the purpose of securing the profit from the resale of such land has been considered; but it must not be inferred therefrom that the only purpose for which extended takings of land have been made in Paris in connection with street improvements has been that of securing the profit from the resale of the land taken.
There are many cases where such takings have been made in whole or in part for the purpose of improving the sanitary conditions in the area taken, and where the best method of securing such improvement was by the razing of every structure in the area to be improved and the rebuilding of that area according to modern requirements.
Only actual acquaintance with the conditions which obtain in some of the more ancient quarters of the cities of the Continent can give an adequate idea of how essential such improvement was and in many cases still is, and how impossible of attainment it is by any method short of the total destruction of all the buildings within such area.
The same holds true frequently of small groups of buildings on the line of or in the neighborhood of a projected street improvement.
Where such a case presents itself, the Council of State does not hesitate today to authorize the taking of all the land and buildings in the area to be improved or of the groups of buildings, the demolition of which is required for sanitary reasons, and of the land on which they stand. While in such cases whatever is realized from the sale of such land goes in reduction of the cost of the improvement, the taking of the land is not primarily made for the purpose of effecting that saving, though it would be natural for the authorities, wherever such a saving had been made, to lay stress upon the fact as justifying the method adopted.
In considering the extended takings which have been made in European cities it is important in each case to ascertain whether or not the considerations which prompted the taking of more land than was apparently required for the proposed new streets did not relate primarily to the remedying of unsanitary conditions, as the opportunity which their laws afford of combining in one taking lands required for street purposes and those taken to remedy conditions inimical to public health is often availed of, and in such cases the actual importance of the sanitary considerations does not always clearly appear on the record.
EXCESS TAKING IN BRUSSELS, House Doc. No. 1096, pp. 10-16
In Belgium since 1867 cities have been permitted to take land by zones, as it is termed, either for the purpose of improving sanitary conditions or of improving the appearance of the city, and some of the most notable instances of the exercise of this power are found in Brussels, to satisfy whose needs the law was originally passed.
No limit is fixed by the law for the extent of these zones, and the city is not restricted to taking land within a certain distance of the new highway, as is the case in the Swiss and Italian laws for instance, but may take whatever seems advisable in order to accomplish the purposes for which the taking is made; but, again, the city is not permitted to be the sole judge of how extensive a taking shall be made.
After the city authorities have adopted the plan, the matter is submitted to the Council of the Province, which makes a separate examination of the question by an independent commission, and after both the city and provincial authorities have approved the plan, a royal decree, generally rendered on the report of the Ministers of Public Works and of the Interior, is necessary to authorize the taking.
It is evident that in the Belgian law two matters are united which with us have usually been kept entirely distinct, viz., takings in the interest of public health and takings for public improvement, in the sense of improving the appearance of the city; and a brief statement of the conditions which obtained in Brussels forty years ago will show how this naturally came to pass. (See pp. [122] ff. of this volume.)
So far from Brussels having concluded by reason of her trying experience that the taking of land by zones was an error, it is stated by those in authority that since she has had authority to take land in this way she has employed no other method; but, as has already been stated, it would appear that the objects she has in view in her takings, viz., the improvement not only of her highways but of the appearance and sanitary conditions of the city, can be attained in no other way.
Other cities of Belgium, notably Liege, have also employed this method of taking by zones, and, acting under wiser guidance or more favorable conditions, have succeeded in carrying out their improvements without having to pass through the period of “storm and stress” which Brussels experienced, and in the case of Liege especially certain improvements carried out by this method have shown a substantial profit.
It is of interest to note in this connection that the power of taking land by zones conferred on the cities of Belgium is not possessed by the State, one reason for this distinction being that the approval of the Provincial Government required in the case of takings by cities affords a check against the abuse of this power which would be lacking in the case of the State.
As a result of this situation, the State has requested the city of Brussels to make such takings on a large scale in the vicinity of the new central railway station which the State is about to build in Brussels, and has made a contract with the city under which the State agrees to advance the money necessary for the operation and to assume the risk of any loss resulting therefrom.
I am informed that Belgium has no law for the assessment of betterments.
Note as to Certain Differences Regarding Damages in Case of Takings by Eminent Domain
In France in the case of takings by right of eminent domain the damages are assessed by a jury, in Belgium, by the judges.
In France it is not the practice to receive the testimony of experts regarding the value of the land.
(It is said that in the last thirty years there has been but one case in Paris in which such testimony was given.)
In Belgium such testimony in the form of written reports is customarily received.
In both countries the awards for damages to land and buildings, i. e., the damages awarded to the owner, are considered by the city authorities to be somewhat in excess of the market value, but not greatly so.
The law of each country gives damages to tenants in addition to the value of the land and buildings, and permits such damages to be given for loss of goodwill, business or custom consequent on being obliged to move to another locality.
It is in connection with the awards of damages for this latter class of injury that complaint as to excessive awards is made, it being considered that the juries in the one country and the judges in the other are more likely to err or be misled regarding the damages claimed for loss of business or custom than as to those which relate to the value of land or buildings.