Carrying out the city plan

by Flavel Shurtleff

THE RELATION OF SPECIAL ASSESSMENTS TO AWARDS FOR LAND TAKINGS

In our review of the practice in special assessments we have seen that in some jurisdictions the determination of awards for land takings and the apportionment of the special assessment are distinct functions performed either by the same body or by different bodies at times which may be widely separated. Thus in Denver the park commissioners spread the assessment which is based on their estimate of the land cost before the appraisers who determine the land awards are appointed; in Boston the street commissioners have both functions, but assessments can not be levied until the completion of the improvement. In Seattle three assessors, or three eminent domain commissioners, levy the special assessment at least a year from the time when the jury’s awards for land takings have been finally confirmed; under the Minneapolis park procedure assessors are not appointed by the court until the cost of land is finally determined by confirmation of the appraisers’ report. In other jurisdictions both the awards for land and the assessment for its cost are functions performed in the same proceeding by the same body. Thus in Kansas City a jury of six, and in Indianapolis commissioners, have these duties.

The disadvantage of deferring the time of levying the assessment is generally considered to outweigh the advantage of a more certain knowledge of the amount of the land awards, which is the largest item of the cost to be assessed. But the necessity of keeping separate the items of awards for damages and of assessment for special benefit, though they may be best fixed at the same time, appears from the methods in very general use of offsetting benefits against damages in arriving at verdicts in condemnation cases.

In Pennsylvania the jury in condemnation cases must find:

1. The value of the premises before the taking.

2. The value of the premises after the taking, which includes the benefit to the premises by the taking. The difference is the compensation to the owner.

In Portland, Oregon, a verdict is made up of:

1. How much, if any, less valuable the land will be rendered by the taking.

2. The damage to the improvements; that is, to buildings, and so forth.

Both of these rules of damage are open to either of two objections: First, in some jurisdictions juries are averse to finding any benefit, in which case a much greater sum than is just is spread over a benefit district, and owners who have justly received as damages large sums for land taken or damaged pay entirely inadequate assessments for the special benefit which they have received. Second, if the jury gives full consideration to the benefit which a piece of property receives and subtracts the full amount of benefit from the compensation awarded for damages to the property, the owner has a decided grievance because he may be paying $100 for one hundred dollars’ worth of special benefit, but his neighbor on the other side of the street whose property has not been taken is paying in a special assessment only 25 per cent or 30 per cent of the special benefit to his property.

The commissioners appointed in street cases in Minneapolis are directed to find:

1. The value of land taken.

2. The damage to the land or buildings not taken.

3. The special benefit which accrues to each parcel.

The owner of the property receives as compensation the excess of compensation for damages over the special benefit. This rule is open to the second objection which we have discussed above and only in a less degree is the code of California objectionable which requires the finding of:

1. The value of the land and buildings taken.

2. The damage to the land and buildings not taken.

3. The benefit to the remainder, which must be deducted from (2).

Thus in California the owner of property taken will have as damages at least the value of the land taken, whereas in the Minneapolis street procedure it is conceivable that the owner might not receive as compensation the value of the land taken.

The better rule in these cases is illustrated by the Kansas City procedure where the jury must find:

1. The actual value of land or easement taken.

2. The actual damage to land or buildings remaining.

3. The assessment which is to be levied against the city at large.

4. Special assessment against each parcel of land found specially benefited.

Only this special assessment (4) may be deducted from the owner’s compensation for damage (1) and (2).