The Area of Special Benefit. The determination of the specially benefited area is left to the discretion of the assessing board, with very few exceptions. In Philadelphia this area is limited to such properties as abut on the improvement; in Boston[73] it is fixed by the statute of 1902 to 125 feet on either side of the improvement;[74] in Milwaukee it is limited in practice to 1,000 feet on either side of the improvement. Under the boulevard law in St. Louis only the properties abutting on boulevards can be assessed specially for their cost.[75] The improvement known as the “King’s Highway” was assessed under this law with the result that the city would have had to pay 80 per cent of the total cost of improvement, and was forced either to abandon it or to repeal the law. Subsequently the King’s Highway was opened as an ordinary street with the same assessment provision as in street openings, which leaves the benefit area to the discretion of the commissioners.
Though it may be generally stated that the size of the benefit district and the amount of the special assessment levied are both legislative questions which are finally determined by the body to which is delegated this duty, and that in the absence of special constitutional limitation the legislative finding will not be reviewed by a court unless there is evidence of gross error or fraud, judicial decisions in several states have held that this legislative authority is not unlimited. Courts on appeal have asserted the right to review the apportionment of the assessment and declare it invalid.
(1) Where the benefit of an improvement is entirely general: Hammett vs. Philadelphia, 65 Pa. St. 146; Thomas vs. Gain, 35 Mich. 155; Detroit vs. Daly, 68 Mich. 503.
(2) Where the rule of assessment would be inequitable for any reason: In re Washington Av. 69 Pa. St. 352; Scranton vs. Pa. Coal Co. 105 Pa. St. 445; Chicago vs. Learned, 34 Ill. 203; White vs. Gove, 183 Mass. 333.
(3) Where the special assessment exceeds the special benefit: Seely vs. Pittsburgh, 82 Pa. St. 360; Lorden vs. Coffey, 178 Mass. 489; Norwood vs. Baker, 172 U. S. 269.
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.