Carrying out the city plan

by Flavel Shurtleff

LIMITATIONS ON THE DEGREE TO WHICH THE INTENSIVE USE OF LAND MAY BE CARRIED

1. LIMITATIONS ON THE HEIGHT AND SIZE OF BUILDINGS

Most modern building codes interfere with the use of land by provisions limiting the amount of the lot which can be occupied and the height to which certain classes of buildings can be erected. Some cities impose an absolute height limit beyond which no building of whatever class of construction can be erected.[128] Ordinances of this character are generally sustained by the courts on the theory that they provide a reasonable method of protecting the safety and health of the community. This is particularly true of some provisions which require a specific allowance of space between non-fireproof structures. The serious nature of the “conflagration risk” involved even in buildings of fireproof construction as established by the Baltimore and San Francisco fires would make this theory applicable even to non-combustible structures because of the combustible material which they contain. Thus the absolute height limitation of 125 feet imposed in Boston on buildings of all classes was sustained in Welch vs. Swasey, 193 Mass. 373:

“The erection of very high buildings in cities, especially upon narrow streets, may be carried so far as materially to exclude sunshine, light, and air and thus affect public health. It may also increase the danger to persons and property from fires and be a subject for legislation on that ground. These are proper subjects for consideration in determining whether in a given case rights of property in the use of land should be interfered with for the public good.... Merely because the commission has come to a conclusion different from that to which the court may come is not in itself sufficient to declare the result of the work unconstitutional.”

The decision of the state court was sustained by the supreme court of the United States in Welch vs. Swasey, 214 U. S. 91.

It is believed that this is the most extreme ordinance on the subject of height limitations of buildings in the United States which has received judicial approval by the highest courts.[129]

How much further an ordinance could go and still be held within the police power can be decided only by framing the ordinance and getting it tested. Any other answer to the question would be a guess which is likely to be wrong. City planners ask, “Can buildings be limited to a height not greater than the width of the street between property lines?” Building regulations in Washington, D. C., provide that no building shall exceed in height the width of the street or be constructed to a height over 90 feet on a residence street or 110 feet on a business street, except that buildings may be erected to 130 feet on avenues 160 feet wide. In New York the case of People vs. D’Oench, 111 N. Y. 359, indicates the probable answer to the question, if the kind of buildings is limited to those used or intended to be used for dwellings of more than one family. The question presented to the court in that case was whether the act of 1885 applied to hotels. The act provided that “the height of all dwelling houses and of all houses used or intended to be used as dwellings for more than one family shall not exceed 80 feet in streets and avenues exceeding 60 feet in width.” The court found that there was no doubt of the competency of the legislature in the exercise of the police power under the constitution to pass such an act, but that the act did not apply to hotels.

Can wooden buildings used for residence be limited to two stories? Building regulations of 1909 for Memphis contain just that provision and there is little doubt that the ordinance would be sustained.

Regulations governing the size of a building in relation to its lot are not so generally adopted and are much more limited in application. An examination of the building codes of the 51 cities of over 100,000 population shows that at least 18, and among them three of the 10 largest cities in the country, have no ordinances on the subject. In several others the regulation is of the mildest kind; as, for instance, in the tenement house act for cities of Massachusetts (Acts 1913, Chapter 786) which provides that no tenement house of third class construction shall be erected nearer than 5 feet to adjoining lot line; but it may be constructed to the lot line if protected by a fire wall. A provision found in several codes limits the size only of tenement houses and apartment houses by specifying the proportion of lot which may be built upon, varying in the case of a corner lot from 75 per cent to 95 per cent, and in the case of an interior lot from 60 per cent to 80 per cent. The building code of Baltimore provides that there shall not be less than 20 feet between frame buildings, and no other building of any kind shall be built within 20 feet of any existing frame building on the next lot.

A bill presented to the legislature of the state of Washington in 1911[130] proposed a considerable extension of the right to regulate the use of private property by requiring that in every newly developed area containing five acres or more there should be a reservation of 10 per cent of the land for public open space, after deducting such land as would be required for street purposes. It is clear that a most liberal interpretation of the police power would not justify a regulation which in reality amounts to a taking of private property without compensation.

That the courts will not sanction any and every legislative regulation is clear in several decisions in which the validity of ordinances specifying the degree of intensity with which property should be used have been successfully attacked. The supreme court of California in 1910, in the case of Wilson et al. vs. City of Alhambra, 158 Cal. 430, enjoined the enforcing of an ordinance which compelled the owner of six acres of land to lay out a street over his land not less than 50 feet wide. The street in this case was an extension of an existing street which was only 40 feet wide. The court held merely that to require an owner to build a street wider than many of the existing streets in the town was an unreasonable exercise of the police power.

2. DIFFERENTIATED ZONES OF HEIGHT LIMITATION

A most important question to the city planner is to what extent American municipalities may, in the exercise of the police power, copy regulations common in German cities and prescribe different building regulations for different districts of a city. The principle is not new in the United States. Many cities have at least two building districts from one of which non-fireproof buildings are excluded. The constitutionality of fire zone ordinances is universally upheld.

The building regulations in the city of Köln are taken as illustrating the German system, because they are simple compared with the regulations in some other German cities. The city is divided into four building districts, the first of which comprises the area inside the old city walls and contains the central business district. In this district buildings may have four stories and a height of 66½ feet, and may occupy 75 per cent of an inner lot and 80 per cent of a corner lot. The second district is made up of the more closely built suburbs of urban character, and here buildings may have not more than three stories, a height of not more than 52½ feet, and may occupy 75 per cent of the lot if the building does not exceed 26 feet in height, but only 65 per cent otherwise. In the third district the buildings are limited to two stories, a height of 38 feet, and may occupy 65 per cent of the lot if they do not exceed 20 feet in height, and only 50 per cent otherwise. The fourth district is devoted to detached buildings or villas of two stories and 52½ feet in height. Only 40 per cent of the site may be covered by buildings, or 50 per cent if the site is a corner lot. In this district also there must be at least 33 feet between buildings and 16½ feet from the boundary of the lots to the buildings. Reference to the map of Köln will show that the districts have been so located that just outside the old walls of the city is a broad band of open villa buildings, and that the more closely built suburban districts are also separated by the same open style of construction.

An approach to the German system is found in Boston and in Washington. The Massachusetts commission on height of buildings authorized under chapter 333 of the statutes of 1904, was empowered merely to divide the city of Boston into districts of two classes in such manner that the parts of the city in which the greater part of the buildings were used for business or commercial purposes should be included in District A and the rest of the city in District B. The statute itself prescribed the limit of 125 feet for buildings in District A and further provided that in District B no buildings should be over 80 feet. Under a later act, chapter 383 of the statutes of 1905, the commission was empowered to designate that part of District B where buildings exceeding 80 feet and not exceeding 100 feet could be erected; and there was a further provision in this act which limited the height of buildings in certain designated districts to 70 feet. The commission’s first report fixed the boundaries of District A, and the second report regulated the height of buildings in District B in accordance with the width of the street and the width of the building. On all streets over 64 feet wide the buildings could be erected to one and one-half times the width of the street up to 100 feet, provided that their height did not exceed twice their narrowest width.

Boston’s several zones are more highly differentiated than even those of Köln, but the Köln regulations are much more severe than the most drastic of the Boston provisions. Thus Boston has a narrowly limited business zone and several other zones differing, not in accordance with the distance from the business center, but in accordance with the width of the street and width of the buildings. The commission’s report and the decisions of both the state and federal courts sustaining it are unique in the United States. The court held that in the exercise of the police power the legislature could determine an absolute height limitation for all buildings in the city, and could delegate to a commission the right to fix the boundaries of building districts and to establish varying height limitations in one of these districts.[131]

This decision has been generally accepted as of great importance in working out some of the details of city planning. There is not involved in it the question of the amount of space which can be occupied by buildings in the different building districts, and for this reason the decision is not a complete precedent for the introduction of the zoning system of Germany in the United States, but it is likely that the Massachusetts court would uphold an ordinance framed to include all the details of the Köln system.

If the legislature can establish two building districts it certainly can establish three or even four. If its authority to delegate to a commission power to regulate the height of buildings in each district is sustained by the courts on the ground that it is a reasonable way of securing an adequate amount of light and air, it should follow that the power to regulate the amount of space that each building may occupy in a horizontal direction can also be delegated. Building codes prescribe the distance between buildings or the open space which must attach to each building, and this regulation is sanctioned by the decisions. It is as logical to provide a larger proportion of open space in districts where the demand for land is less as it is to provide less height for buildings in such districts. An ordinance which prescribes for different building districts varying amounts of land which may be occupied, as well as varying heights of buildings, is much more calculated to lessen the fire risk and to safeguard the health of the community than one which is operative only in the area of greatest land values and most congested occupancy. The burden is on the private owner to show that the legislative act is unreasonable. That the courts will be slow to declare unreasonable the legislative finding has been established in numerous decisions, and applying this test of reasonableness to an ordinance which would include the principle of the zone system of Köln it is difficult to see how it could be successfully questioned.

It is quite another question whether it would be expedient to introduce such an ordinance. Local conditions might be such that property owners would be right in refusing to entrust so important a question to a municipal administration or to a commission appointed by that administration. In purchasing lots they may cheerfully submit to the restrictions imposed by a land company, no matter how much their rights are curtailed. They may agree to set back their buildings 20 feet from the line of their property; they may agree to build nothing on the land except a dwelling house of certain value and to have the rest of it set out in gardens, and even to submit the position and design of their houses, hedges, fences, and gates for approval to a small committee representing the vendors of the tract. Such restrictions, when drawn to meet the conditions of the real estate market, attract buyers rather than repel them, because these restrictions upon the liberty of individual lot owners protect each against the danger of certain injurious actions by any neighbors. Yet a suggestion of control from municipal authorities might raise a strong protest. It is an interesting speculation whether some form of district building regulations subject to a referendum within each district will not meet American conditions successfully.