Carrying out the city plan

by Flavel Shurtleff

THE CONTROL OF STREET LAY-OUT BY ADMINISTRATIVE PRESSURE

In a growing community, even if the public authorities are utterly supine in the matter, private initiative will constantly increase the number of house lots and bring about the creation of streets necessary to give access to them. These streets may promptly become public ways or they may remain private ways for a long time; but in the aggregate they form the most important single element in the city plan, largely controlling every other feature. The most obvious and perhaps the most important step in the wise guidance of a city’s growth is the endeavor to make the streets thus brought into existence through private initiative serve not merely the immediate selfish purpose of the dealer in real estate but the permanent interests of the whole community. The attempt to control private development is made through the supervision of all plans offered for record, supplemented in a few cities by the establishment of an official street plan to which all private plattings are expected to conform.

The right in a municipality to supervise all plans of subdivisions is well recognized in the United States, but the exercise of the right is by no means general. It varies from a purely formal supervision, to a real attempt to control private development. A street which is to be a public highway is frequently required to conform to standard specifications as to width, sidewalk space, surfacing, and so forth. In some cities a considerable measure of co-operation is secured and owners of property are induced to change even the number and direction of proposed streets at the suggestion of the municipal authorities.

The method of enforcing the right of supervision in most general use is to refuse for record any plan of proposed streets and lots which has not been approved by the proper municipal authorities. Owners who persist in their plan are prevented from describing lots by a short reference to a recorded plan and must in each transfer describe by metes and bounds. The inconvenience is considerable, although the burden of this falls rather on the title examiner who is paid for his labor and on the purchaser than on the vendor. In cities where the custom of dealing in lots by reference to a recorded plat instead of by metes and bounds is nearly universal, a prospective purchaser may balk at buying a lot that fails to conform to the customary standard in this respect.

Another method of control, also in pretty general use, is the refusal to accept a non-conforming street as a public highway. Instead of having the benefit of the co-operation of the municipality in the construction of water mains, sewer pipes, and other municipal services, and instead of being entirely relieved of their upkeep, the cost of both construction and maintenance of the highway and of the various conduits for public service falls on the owners of lots abutting on the private street. Unfortunately, these owners are rarely the offending developers of the property; they usually are innocent purchasers who have bought lots, relying on the supposition that they were on an accepted or acceptable street. Rather than pursue their rights against the land company which made the sale, they are more likely to prevail on the municipal authorities to waive the requirements and accept the street as a public highway.

The experience of at least one town has worked out a variation of these methods of pressure. Massachusetts towns, by the acceptance of Chapter 191 of the acts of 1907, may authorize the board of selectmen to act as a board of survey with power to compel the submission of all plans for the location of streets or highways for their approval.[147] It was found that while development companies were usually quite willing to submit plans and accept suggestions, when the land was cut up into streets and lots the plans which had been accepted by the board of survey frequently had not been followed. Consequently the town adopted the following regulation:

Whenever application is made to the selectmen acting as the board of survey, by the owner or owners of a parcel of land for the approval of a plan showing the layout of streets in said land, such owner or owners shall furnish a bond conditioned for the prompt construction of said street or streets in accordance with the grades and layout approved by the board of survey....

This practice seems effective at least in cases where the developer desires the approval of the board of survey, but the situation is still left without remedy where the developer is willing to subdivide his land without submitting his plans to the municipal authorities and to construct and maintain streets at his own expense.

The possibilities of official supervision have not been fully realized, partly because of the too frequent use of political influence and partly because of an adherence to old methods, and of an utter lack of scientific handling of the problem and the absence of a well considered city plan. The property owner often objects with justice to the arbitrary specifications required both for the width of a street and the allotments of space for sidewalk and parking strips. Even in cities where most has been accomplished in the planning of a street system there has not been a sufficient regard for the difference in the use of streets as affecting their width and cross section. Many cities require all streets to have a certain minimum width, either 40, 50, or 60 feet between property lines, whereas in some cases a width less than this standard minimum would be much more suitable. Often a street is made 70 feet wide because it is the extension of a street 70 feet wide, although this width both for the old street and the new may be too great or too little. Sidewalks in many cities are given a fixed width in proportion to the width of the entire street, although that width may be excessive or inadequate for sidewalk purposes in special cases.

But at best, supervision by these means will fail of great effectiveness because too much depends on persuasion and there is too little opportunity for legal pressure. The property owner can block the best laid plans of the municipality. To obtain positive control of property development land or rights in land must be taken, and for this the city must pay.

With the purpose of forestalling private development several cities have established bureaus to prepare an official plan of streets to which private platting is expected to conform. A device included in the legislation creating some of these street planning bureaus, which aims to place the location and design of streets absolutely in the control of the municipality, is contained in the provision that owners who erect buildings within the limits of a proposed street as laid down on the official plan will receive no compensation for damage to their buildings when the street is constructed.[148]

But in every state which has enacted this provision except Pennsylvania this interference with private property is regarded as a taking of property without compensation, therefore unconstitutional, or has been expressly so held by the supreme court.[149] From early times Pennsylvania statutes have given the properly constituted municipal authorities power to determine in advance the location of all streets without compensation for the interference with the rights of property owners. By act of June, 1836, commissioners were authorized to set off a certain tract of land and plot it with streets and squares. Notice was then given to property owners concerned, and after a hearing of objections the plan with or without amendments was recorded and became official “and the streets, lanes, and alleys so approved shall forever after be deemed, adjudged and taken to be public highways.” In 1841 the court of general sessions refused to grant a petition establishing this plan on the ground of the unconstitutionality of the statute. The case on a writ of certiorari went to the supreme court which reversed the decision of the lower court and found that

The mere laying out of the streets can not be said of itself to be the taking of the property of individuals upon which they are laid out for public use at some future day, but rather a designation of what may be required for that purpose thereafter, so that the owners of the property may in due time be fully apprised of what is anticipated and regulate the subsequent improvements which they shall make thereon accordingly.... Until the actual opening the owners thereof continue not only to hold the same interest in them but likewise to have the right to enjoy them and in the same manner as they did previously.[150]

Thirty years later, in 1871, the supreme court further extended the principle by holding that if buildings were erected within the line of the street after notice of the plan was given to the owners, the damage to such building on the opening of such street could not be paid for, “otherwise the map or plan would be entirely nugatory.”[151] The same question was considered in 1893 and the principle was held well established.[152] Curiously enough, the first Pennsylvania case was decided on the reasoning in a New York case decided in 1836, Furman St., 17 Wend. 649,[153] but this New York decision was reversed in 1892 by the case of Forster vs. Scott, 136 N. Y. App. 577,[154] the court holding that

Whenever a law deprives the owner of the benefit, use and free enjoyment of his property or imposes restraint upon such use or enjoyment that materially affects its value without legal process or compensation, it deprives him of the property within the meaning of the constitution.

This power of determining the lines of a street without immediate construction of the street has allowed a widening of some of Philadelphia’s narrow business streets in a way impossible in a city of any other state. In 1870 it was determined to increase the width of Chestnut Street from 40 to 50 feet by an addition of five feet on either side. Land abutting on this street has great value and was occupied by costly buildings, and if condemnation proceedings had been instituted for acquiring the additional 10 feet the expense of the improvement would have been perhaps prohibitive. But the act of 1870 provided that compensation should not be paid till a building was reconstructed and set back to the new building line, and thus the expense for getting a 50-foot street was distributed over many years and nothing was paid for buildings. The same process has been adopted for at least two other downtown streets of Philadelphia, but this power has not been employed to increase the width of streets in built-up areas in any other city of Pennsylvania.

PLATTING BOARDS IN VARIOUS CITIES

Philadelphia. Official planning in Philadelphia is done by the bureau of surveys. The board is composed of fourteen district surveyors presided over by the chief engineer and surveyor of the city. Each district surveyor has charge of a particular section of the city, with a corps of engineers and assistants under his immediate direction. He is the only person having the authority to make an official survey of public or private property in his district. All fees for work done for private parties are paid into the city treasury by the individual for whom the work is done. Such a system gives each district surveyor a practical knowledge of the land and of the land owners, and the confidence which is had in the district surveyor has done more to prevent violations of the street plan than the penalties contained in the legislation. The city has a plan of streets ready for each district before the land owners are ready to subdivide their land. When any one or more of the land owners begin to consider platting their land the district surveyor must be consulted, and the city is in a strategic position to carry through its own officially adopted plan.

Boston. The board of survey in Boston was created in 1891[155] with power to make plans of such territory “as the board may deem advisable, showing thereon the location of such streets or ways, whether already laid out or not as the board shall be of opinion that the present or future interests of the public require or will require.” For five years the activity of the board resulted in planning 6,000 acres of comparatively unoccupied territory. The board of survey was succeeded and its duties were taken over by the long established and conservative board of street commissioners in 1896. Since this time there has been much less activity, if the amount of territory covered by a street plan is an accurate measure. The fifteen years of the work of the street commission resulted in the platting of about the same amount of territory as was covered by the board of survey in five years. The difference may be due to a lack of sufficient appropriation. The act of 1891 carried with it a special appropriation for the work of platting new streets, and the city council during the life of the board of survey was very liberal with appropriations for this purpose. During the subsequent history of the street commissioners the only amount available for purposes of platting was what could be spared out of the total appropriation for street work. It is also a fair conclusion that there was less enthusiasm for platting under the board of street commissioners than under the board of survey, which was created for that specific purpose.

A provision in the board of survey act, like those in the Pennsylvania acts, withholds compensation to property owners who erect structures in the streets proposed for new areas, but the supreme court held that this no-damage provision was an interference with the use of property and that since no compensation was given the owner it was an unconstitutional interference.[156] Although this opinion was not necessary for a decision of the case there is little question that the dictum would be followed in Massachusetts, and in accordance with this dictum the street commissioners have been advised by the city of Boston law department that building lines can not been forced without payment of compensation.

It is conjectural just how much this decision has weakened the effectiveness of the board of survey acts as instruments for building up an adequate street system, since no record is kept of the violation of the lines which the board of survey has laid down. The official plan has standing among respectable property owners who recognize a real economy in a planned street system. Conservative banks in Boston refuse to loan on property subject to a board of survey line unless the building plans show the observance of these lines. Careful conveyancers in examining a Boston title inquire whether there is a board of survey line on the property. The practice in Boston is to issue from the city hall a certificate showing all municipal claims against any given parcel of property, and the existence of a board of survey line is noted on this certificate. Pressure can still be brought to bear on non-conforming owners by refusal on the part of the city to co-operate with them in the construction and maintenance of the water, sewer, and lighting systems. It is the general impression among those who are most closely acquainted with the work of the laying-out of the streets that violations of the street lines are of infrequent occurrence.

Under Chapter 191 of the acts of 1907, Massachusetts towns may authorize their selectmen to act as a board of survey with the same power to lay out official streets as the Boston street commissioners. Several towns of the state have accepted the act and in a very few cases survey lines have been imposed on particular streets, but there has been no general extension of the street plan into unoccupied areas.

New York. New York had a topographical bureau for four years, dating from the first Greater New York charter, January 1, 1898, but during these formative years there was little or no progress with official plans. On January 1, 1902, the amended charter placed the topographical work in each of the five boroughs under the control of the borough president, and since then five separate bureaus have had charge of the completion of the map of the city and the drainage plan. The disadvantage of separate planning bureaus, particularly where the territory of two boroughs is contiguous, is obvious. There is, however, one opportunity for securing co-ordination in street planning. All plans must be submitted by the presidents of the boroughs to the board of estimate and apportionment, and they do not become official without the approval of that board. In Manhattan and Brooklyn the plans submitted consist almost entirely in changes in the official map which is practically complete for both boroughs. The following table shows the work of the topographical bureaus in the other boroughs since 1902:

TABLE 7.—PROGRESS MADE IN MAPPING THE BOROUGHS OF THE BRONX, QUEENS, AND RICHMOND, NEW YORK CITY, TO JANUARY 1, 1913[157]

	BOROUGH
	The Bronx	Queens	Richmond
Total area in acres	26,523	75,111	36,600
Acres approved for mapping prior to Jan. 1, 1902
Tentative	—	—	—
Final	14,430	5,402	60
Total	14,430	5,402	60
Between Jan. 1, 1902, and Jan. 1, 1912
Tentative[158]	956	3,416	7,940
Final	10,004	14,476	964
Total	10,960	17,892	8,904
During 1912
Tentative	—	12,984	2,540
Final	234	3,070	—
Total	234	16,054	2,540
Total area in acres mapped to Jan. 1, 1913
Tentative[158]	956	16,168	10,480
Final	24,668	22,948	1,024
Total	25,624	39,116	11,504
Per cent of borough area in acres mapped to Jan. 1, 1913
Tentative[158]	3.6	21.5	28.6
Final	93.0	30.6	2.8
Total	96.6	52.1	31.4

Baltimore. The Baltimore topographical survey commission was created by ordinance in 1893 for the purpose of making a complete survey of the city, including about seventeen square miles of undeveloped territory, rural in character, which had become a part of the city in 1888. With the completion of the survey an official plan was adopted for the annexed territory in 1893 by the mayor and city council, and subsequently by act of the general assembly of Maryland, Baltimore was prohibited from accepting a deed of dedication or the opening in any manner of a street which did not conform to the general plan or the plan duly amended. Amendments of the official plan must be approved by the topographical survey commission and adopted by the city council before they can be incorporated.

In spite of the legislation in Maryland which seems to put the control of city planning in the hands of the city, and in spite of the activity of topographical bureaus of New York City, the limitations on municipal control of street planning in both Baltimore and New York are the same as in Boston. Official streets in both cities have been blocked by the owners of the land or speculative builders, and cases of successive house planting in New York City are notorious. And yet, the advantages of official street plans are considered to offset these limitations and street planning bureaus have passed the experimental stage.

Their success furnishes a precedent for many cities in the United States which still exercise little or no control over a phase of planning where the interest of the private owner is so often opposed to the public good. The possibilities of administrative pressure in the solution of other city planning problems now determined on the initiative of private or corporate interests suggest themselves. The development of the water front, the location of railroad terminals, the transit problem, have all been distinctly recognized as requiring the permanent attention of a special planning board representing the public interest. But in those fields where the public interest is apt to conflict with the advantage of private or corporate owners, the value of expert suggestion and study can never be as fully realized as where the execution of a plan is entirely in the control of the municipality.