Carrying out the city plan

by Flavel Shurtleff

In early times special assessments were most frequently used only to defray the cost of construction of improvements, but the language of the first Massachusetts act is broad enough to allow also an assessment to cover the cost of land acquirement. It is only the use of special assessments to defray the cost of land acquirement with which we are concerned in the present survey, although a special assessment for a more restricted purpose is based on the same principle.

3. SPECIAL ASSESSMENTS IN ACQUIRING LAND FOR PARK PURPOSES

It is generally agreed that parks judiciously acquired in a city are a benefit to the whole community, but the use of some of them, especially of small parks, is confined almost wholly to the people of the locality in which they occur, while other parks, especially the large ones, may be used by people from all parts of the city.

It is also a real estate axiom that residence property contiguous to parks commands a higher price, other things being equal, than similar property several blocks away. We should therefore expect the cost of park acquisition to be distributed, first, by an assessment on such property as really receives a special increase in value because of the nearness of the park; and second, either by assessment on a much larger area assumed to include practically the whole public served by the park as a local institution, or else by general taxation on the whole city.

In the case of small parks, it is logical and fair to subdivide a large city into local “park districts” or “improvement districts” and to make each district pay for its own local park. This practice is not only fair but extremely salutary. It forces a clearer understanding of what each dollar of the tax payer’s money has gone to secure, thus checking a loose extravagance in the acquirement of park lands, and at the same time makes it possible for a progressive and prosperous locality which is in need of parks to proceed with their acquirement unhampered by the resistance of other parts of the city which are satisfied with the existing situation or are really unable to afford further taxation for park purposes. The principle is the same as that which justifies the subdivision of a state into municipalities for the localization of taxes required for local purposes, and it becomes more and more important, as the size of municipal units is increased, for dealing with affairs that affect large groups of contiguous communities having many conflicting interests.

But although the amount and kind of benefit resulting from large and small parks is about the same in all cities similarly situated, the practice in paying for the cost of park areas shows the greatest divergence. It is usual in the United States to assess no part of the cost of acquiring park lands on property specially benefited. In some cities the law does not permit such assessment. In other cities the assessment is made in so limited a way as to give the community little relief from the financial burden. In several cities, notably Seattle and Portland of the western cities, and Baltimore in the east, which assess private property very liberally for street improvement, including the cost of land takings, there is no assessment for the acquisition of land for parks.

In the cities of Ohio, it was illegal up to 1912 to raise the cost of land acquired by condemnation by a special assessment. The case that establishes this law in Ohio is City of Dayton vs. Bauman, 66 Ohio St. 379. In that case the city appropriated land for the extension of two streets and assessed the cost on abutting lots. In deciding against the validity of the assessment the court based its decision entirely on Section 19, Article I of the Ohio constitution, holding that a special assessment was an indirect method of evading that constitutional limitation. This section provides:

“Private property shall ever be held inviolate, but subservient to the public welfare ... where private property shall be taken for a public use, a compensation therefor shall first be made in money, or first secured by deposit of money, and such compensation shall be assessed by a jury without deduction for benefits to any property of the owner.”

The court said:

“The limitation of Section 19 goes to the full extent of prohibiting the assessment of compensation, damages and costs of land appropriated upon any real estate whatever. In short, money cannot be raised by assessment to pay such compensation, damage and costs, but such money must be raised by taxation. The public appropriate land for public use, and the public must pay. Nothing less than the public can appropriate lands by legal process for public use. If an assessment district should be formed and a petition filed by such district to appropriate private property for the use of such district, or the public, a demurrer to such petition would be sustained on the ground that the constitution gives no power of appropriation of private property to such assessment district, such district not being the public and the power of appropriation being given by Section 19 by the public only.