Carrying out the city plan

by Flavel Shurtleff

The right to levy a special assessment for such street improvements as do not involve the taking of land, such as grading, paving, curbing, and sidewalk construction, is almost universally granted to municipalities by legislation in the United States. But the use of the special assessment, although common in New York, New Jersey, Pennsylvania, and the central and western states, is most limited in the cities of the South and in New England. It is practically unknown in New Hampshire; and in the other New England states only the cost or a portion of the cost of some one improvement, very often the construction of sewers, is assessed specially on private property. There is, to be sure, in Massachusetts, a rather general practice of accepting streets as public highways only after they have been brought by the abutters to an established grade.

Speaking generally, in street improvements which require the taking of land, as in openings, widenings, or extensions, more often than in takings for parks, the cost of the land is defrayed by a special assessment. The practice in this regard is likely to follow the practice in defraying merely construction cost. We have already seen that the cities of Ohio are prohibited from employing such assessment; in other cities, of which Philadelphia and Boston are the best examples, although the right to levy a special assessment is given to the municipality, in practice little if any of the cost of land taking gets assessed, because in Philadelphia juries are averse to finding a benefit, and in Boston the right to assess specially is limited and the procedure ineffective. Where assessments are made, the practice is as varied as in assessments for the acquisition of land for parks.

Agency which Assesses the Benefits. Ordinarily the same agency which awards damages for land taking determines the amount of the special assessment which is to be levied for the special benefit resulting from the improvement, whether that agency be a small board of appraisers, commissioners, or viewers, as in New York, Chicago, St. Louis, Kansas City, Portland (Oregon), and other cities; or a department of the city administration, as in Milwaukee, Indianapolis, Los Angeles, and Boston. The usual practice is to assess the benefits at the same time that the damages are awarded and thus offset the benefits against the damages wherever possible. In cases where the damages awarded are increased or assessments are decreased on appeal, either the city must assume the deficiency or the assessing board must find more benefited territory on which to spread the required amount.

The street commissioners of Boston, however, and boards with like powers in the other cities of Massachusetts, are compelled by statute to postpone the assessment of benefit until the completion of the improvement,[62] a practice the disadvantage of which is evidenced by the difficulty in collecting the assessments, as will be seen later.

In Seattle and other cities of Washington, the special assessments are apportioned by eminent domain assessors, a different tribunal from that which awards damages.[63] Sometimes a year elapses from the time of the final award for damages to the appointment of assessors, and during this year the amounts of the award are bearing interest. The eminent domain assessors review the same evidence that was heard by the jury in the land damage cases. An amendment has already been proposed which will allow the board of eminent domain assessors to award damages and apportion assessments at one hearing.

The Proportion Assessed. It is the general practice to leave the proportion of the cost of land which is to be assessed on the municipality and the proportion which is to be assessed on property specially benefited to the discretion of the board which levies the assessment, limited only by the provision that the special assessment shall not exceed special benefit and shall not exceed a certain percentage of valuation of the property assessed. But in New York the board of estimate and apportionment is given this duty in all cases,[64] and in Boston[65] the proportion which private property shall pay is fixed by law, not to exceed 50 per cent of the cost of improvement,[66] which cost includes both the amount awarded for land damage and the cost of construction. Theoretically, the proportion assessed on the municipality at large and on private property should depend on the extent to which the improvement, as, for instance, the widening or opening of a street, serves a general or a purely local purpose. Practice does not follow theory. Some jurisdictions assess specially the whole or a large portion of the cost of all ordinary street openings on the property particularly benefited. In Milwaukee it is the unwritten rule to assess two-thirds of the cost on private property. In Kansas City it is the exception for the city to pay any part of the cost of street improvement out of its general revenue.

The history of special assessments for street purposes in New York and Boston furnishes an interesting comparison. Previous to 1902 the policy of the board of estimate and apportionment in New York City was to assess the entire cost of opening proceedings on the property specially benefited, and subsequently to grant relief, depending usually on the skill with which property owners were represented at the hearing. The result was that almost all the expense of opening streets over 50 feet wide was borne by the city.[67] The city’s bonded indebtedness was greatly increased and it became impossible to execute important improvements.

From 1902 to 1907 the opening and widening of streets 60 feet wide and under was regarded as a purely local benefit and the entire cost assessed on property benefited; but for streets over 60 feet in width[68] there was a different distribution of cost. In the case of new streets the city assumed one-third of the cost due to the excess in width over 60 feet. Where the streets were old and were widened to over 60 feet, the city assumed one-half of the cost due to the excess width. During these years the city was called upon for a contribution of $9,471,550 toward the cost of widening and opening streets, which put upon the city a greater burden than the old method where assessments were reduced on a plea for relief. The board of estimate and apportionment found also that this method was inequitable to the owners of land abutting on the 60-foot street. A street over 60 feet in width was held to be of more general benefit than one of narrower width, and the area over which the assessment could be spread was bounded by a line midway between the widened street and the nearest street of the same or greater width. Thus in widening a street to 80 feet, after the payment out of the general municipal revenue of one-third of the cost due to excess width and after the assessment on property in the benefit zone not abutting on the widened street, it was found that abutting property was paying only the equivalent of the cost of a street 51 feet wide. For this reason, therefore, and because of the greater burden on the municipality, the rule adopted in 1907 was to assess the entire cost of the acquisition of land for street purposes on the property specially benefited, in so far as a special benefit could be established, provided that the amount assessed would not result in confiscation of the property.[69]

In Boston previous to 1891 special assessments to defray the cost of street improvements were levied entirely according to the discretion of the board of street commissioners, whose practice was to assess private property only in the case of improvements which had more than a local character and to pay for strictly local street improvements out of the general appropriation. In 1891 a board of survey was created and that board in its discretion was allowed to assess on abutting property the entire cost of improvement.[70] In practice the board used this right only on purely local streets, applying the theory that on such streets the general public received no appreciable benefit. In 1902 large land holders and their representatives insisted on changing the law and were helped by the decision in Lorden vs. Coffey, 178 Mass. 489, which declared unconstitutional that part of the board of survey act which allowed the assessment of the entire cost of improvements, holding that a special assessment might exceed the special benefit to property under the provision of the act. There was no finding that the entire cost could not be assessed on a benefited area, and had the board of survey act included the words “but no assessment shall be levied in excess of the actual special benefit to the property” the law would probably have been declared constitutional. The statute of 1902[71] limited the amount of a special assessment to 50 per cent of the cost of an improvement, no matter what the width or the use of a street.

The evolution in New York is toward a proper rule of apportionment, and in Boston, away from it. Either the assessing board should be given discretion in the matter of assessments, with the usual limitation that there should be no special assessment exceeding special benefit, or a system of apportionment should be adopted based on the width of streets as evidence of their character and use and as a measure of their public and private benefit.[72]