Carrying out the city plan

by Flavel Shurtleff

Legislation of 1911 gives full recognition to the benefit theory by allowing the board of estimate and apportionment to determine what portions of the costs of park lands shall be paid by the city of New York, what proportion by one or more boroughs, or parts of one or more boroughs, and what proportions by owners whose land is particularly benefited.[43]

In Minneapolis the board of park commissioners determines what percentage, if any, of the amount required for the acquisition of land for park purposes shall be assessed on the land specially benefited. The fixing of the area of benefit and the determination of the amount which each lot benefited shall pay are the duty of the three park assessors appointed by the district court. After hearing evidence the assessors make findings and file them in the district court, which has power to hear objections and confirm or revise the assessment or send the case to new assessors.[44] It is the practice for the courts to confirm assessments, unless satisfied that the assessors have been governed by improper motives or have proceeded on erroneous principles, or have based their findings on a mistake of facts. The percentage which private land owners have paid under park takings has varied greatly under this procedure.

4. PARK DISTRICTS FOR ASSESSMENT PURPOSES

In the comparatively recent practice of some cities “park districts” have been laid out, each treated as a separate entity, both for the purpose of locating park areas and for assessing the cost of their acquisition.

Kansas City. In 1908 the entire city was divided into six park districts, administered as one system by three commissioners appointed by the mayor. The commissioners’ duties are to devise and adopt a system of parks, parkways, and boulevards, and to select such lands as are appropriate for these purposes within or without the city limits. They must provide at least one park in each park district. Responsibility for the selection of areas is left with the park commissioners, since only on their recommendation can the common council provide for the acquisition of the necessary land by ordinance, and it is made the duty of the common council to carry out the park commissioners’ recommendation.[45]

The cost of acquiring land outside of the city limits must be paid out of the general tax levy or by a bond issue which is a charge on future general tax levies; but within the city limits land for parks, parkways, public squares, and boulevards, whether acquired by purchase or condemnation, may be paid for by special assessment on the land specially benefited. Special assessments are also used to defray the cost of construction of boulevards and park roads on which private property abuts and are levied directly on such property, as in an ordinary street improvement. The remainder of the cost of construction and all the maintenance cost is met by a tax not to exceed 2½ mills levied over each park district in accordance with its valuation, and by a special maintenance tax of 10 cents a front foot on the property which fronts on parkways, boulevards, roads, or avenues.[46] The funds of each district are kept separate.[47]

Kansas City is fortunate in the provisions of its law regarding condemnation proceedings and special assessment for benefit. The ordinance of council following the recommendation of the park commission describes all the properties to be acquired for the proposed improvement or group of improvements and the area which is deemed specially benefited. This area may include one or more park districts or a part or parts of such district or districts. The proceedings are initiated by petition of the city in the circuit court, and when the parties have properly joined issues the case is heard by a jury of six which ascertains the compensation for property taken and for the damage sustained by property not actually taken. The same jury assesses the benefit of the improvement, first charging to the city that portion of the cost which represents the benefit that accrues to the city at large, and then distributing the balance of the cost by special assessment against the parcels of private property found specially benefited. The verdict of the jury is reviewed by the circuit court and may be appealed from to the court of appeals on any question; but, curiously, only corporations have a right to appeal to a common law jury and this right is almost never taken advantage of.[48]

In legal theory the assessments are approximately in proportion to and not exceeding the special benefit, and if the cost of land acquirement should exceed the estimated special benefit the difference would be paid by a general tax on the whole park district or on the whole city. As a matter of practice the assessing juries have with almost absolute unanimity found that the entire benefit from the acquisition of park land is to private property. The right to assess the entire cost of a “public improvement” on a specially benefited area—to find, in other words, that there has been no “public benefit”—has been declared constitutional in several cases.[49] The city, through its right to have the proceedings discontinued at any time before the first assessment is paid into the city treasury by repealing the ordinance of condemnation,[50] is protected against the finding of a jury that the benefit is entirely a public one and that no assessment shall be laid against the private property.

The special assessment method as applied in Kansas City makes unnecessary an appropriation by the council or a bond issue, both of which would increase the general tax rate. Payments for the purchase of land are met either directly by park fund certificates or these certificates are sold to provide purchase money at a price not less than the face value of the amount of special assessment, excluding interest. The payment of special assessments is usually by instalments, and distribution of the amount collected is made at least semi-annually to certificate holders who are entitled to the proportional share of the special assessment represented by their certificate with interest at 6 per cent.[51]

The Kansas City park system has not been secured any more cheaply than other park systems, with the exception that the simplicity of condemnation procedure has probably resulted in some saving in the cost of land, but the financial burden has been distributed with more fairness. Practically the entire amount of special assessments has been collected. From the beginning of the history of the park system in 1892 to April, 1911, its cost was $10,372,876. Of this sum, $500,000 was raised by a bond issue in 1903; $496,181 was appropriated for construction and maintenance in Swope Park, the city’s largest park; and $651,776 which was spent for miscellaneous items entirely separate from the expense of acquiring the land or improving it, was also appropriated out of the general tax levy. Deducting these three items, there is left $8,724,919, representing the funds raised by special assessment.[52]