Carrying out the city plan

by Flavel Shurtleff

It will clear the way for a discussion of the subject to point out the nearest substitute for the excess condemnation method which is ordinarily available in America today. The absorption by the public of the increase of property values directly resulting from an improvement made at public expense, at least up to an amount equal to the cost of the improvement, may be more or less successfully accomplished by special assessments as set forth in Chapter III. The control over property adjacent to a public improvement just in so far as that control is needed to enable the public to get the full use and enjoyment of the public property, may be obtained without acquiring title by the purchase or condemnation of easements. The combination of the two is believed by the more conservative thinkers on the subject to afford all the power that is necessary without the dangers of excess condemnation.

THE HISTORY OF EXCESS CONDEMNATION IN THE UNITED STATES

The Massachusetts legislature of 1903[86] provided for an examination and report upon legislation needed to enable a city, town, or state commission to take in fee, to purchase, or otherwise to acquire for public purposes and in connection with any public work all or any part of the land within certain defined limits, and after appropriating as much of the land as necessary to sell or lease the remainder. The commission subsequently appointed by the governor did a thoroughgoing piece of work and their conclusions, embodied in two reports to the legislature of 1904, both now out of print, contained very valuable contributions on a subject on which there is scant literature.[87]

The commission found no precedent and little of value on the subject of excess condemnation in this country, and in the cities of Europe they found the principle applied in two very different ways. In France, according to the letter of the law, only remnants of such size and shape as to be unsuited to the erection of buildings could be taken in addition to the land actually needed for the construction of the improvement. In England, Belgium, Switzerland, and Italy, municipalities were allowed to take all the property within certain bounds in the neighborhood of a proposed work, to use what was necessary, and to dispose of the remainder by sale or lease. In the bill which was submitted by the Massachusetts commission, the French method was adopted as sufficiently broad to carry out the purposes of the municipality and as being more fair than the other method cited to the property owner whose land would be taken. The draft of the bill was passed with modifications by the Massachusetts legislature of 1904 and is known as the “Remnant Act,” the principle of which is contained in the following clauses:

Section 2. The Commonwealth, or any city in the Commonwealth ... may take in fee by right of eminent domain the whole of any estate, part of which is actually required for the laying out, alteration or location by it of any public work, if the remnant left after taking such part would from its size or shape be unsuited for the erection of suitable and appropriate buildings, and if public convenience and necessity require such taking.

Section 15. The Commonwealth or the city, as the case may be, shall determine within six months after the completion of any public work for which land is taken under this act, or within six months after the filing of a final decree on an appeal taken under this act, whichever shall happen later, with which of the adjoining properties the public interests require that each parcel of land, if any, taken outside the boundaries of the public work should be united; and shall, within said six months, notify the owner of such adjoining property, if his address is known, of this decision by registered letter mailed to such owner, and shall annex to the notice a copy of this section.

Section 16. If such owner or some person on his behalf shall within two weeks from the mailing of such notice notify in writing the Commonwealth or the city that such owner wishes for an appraisal of such parcel, the Commonwealth or the city shall cause such parcel to be appraised by three competent and disinterested persons, one of whom shall be appointed by the Commonwealth or the city, one by said owner, and one by the superior court for the county: Provided, however, that the Commonwealth or the city and said owner may in writing appoint a sole appraiser. Said appraiser or appraisers shall forthwith after his or their appointment view the property and determine the fair value of such parcel, and shall make written report to the Commonwealth or the city of the same. The reasonable fees and expenses of the appraiser or appraisers shall be paid by the Commonwealth or the city. The Commonwealth or the city shall forthwith by writing mailed to such owner offer such parcel to such owner at the value as determined by the report of a majority of such appraisers, or by that of the sole appraiser in case of the appointment of one appraiser.

Section 17. If such owner shall in writing accept said offer within two weeks after the date when the same is mailed to such owner, the Commonwealth or the city shall convey such parcel to such owner on payment of the purchase money to the Commonwealth or the city, as the case may be, within thirty days after the acceptance of the offer. The conveyance shall be by deed, with or without covenants of title and warranty, executed and acknowledged in the name and behalf of the Commonwealth or the city by the officers or board which have or has taken such parcel, or by their or its successors or successor, and may be made subject to such restrictions as the Commonwealth or city may in writing have notified the appraisers or appraiser at the time of their or his appointment would be imposed on such parcel.

Section 18. If such owner fails to accept the offer within the time limited, or having accepted it fails to make payment or tender of the purchase money within one month thereafter, the Commonwealth or the city, if it does not take said adjoining property under the provisions of section twenty-nine[88] may at any time thereafter sell such parcel at public auction.

Section 29. If the owner of property adjoining a parcel taken under this act and outside the boundaries of a public work fails to accept an offer to sell such parcel to such owner made under the provisions of section sixteen, or, having accepted such offer, fails to make payment or tender of the purchase money within thirty days thereafter, the Commonwealth or city shall cause such parcel to be sold by public auction, subject to such restrictions as the Commonwealth or city may impose. Land sold under this section shall be conveyed to the purchaser in the same manner as land conveyed under the provisions of section seventeen.[90]