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To carry out the comprehensive slum-clearance and low-cost housing program, the Government has resorted, in some instances, to the use of the right of eminent domain. Land for low-cost housing and slum-clearance projects has been acquired by the Federal Government through condemnation proceedings in the district courts for the northern district of Georgia, the middle district of Alabama, the southern district of Indiana, the northern district of Ohio, and the eastern district of Michigan.
In a proceeding brought by the Government in the western district of Kentucky, a landowner demurred to the petition filed by the United States for condemnation of property in Louisville, Ky. (United States v. Certain Lands in the City of Louisville.) The district court sustained the demurrer. That court, speaking through Judge Dawson, held that “no power resides in the National Government to condemn the property here involved for the purpose for which it is intended." (9 F. Supp. 137.)
The lower court's ruling was affirmed by the Circuit Court of Appeals for the Sixth Circuit, on the ground that the intended use of the land did not constitute a public purpose or use within the rule that private property cannot be taken in the exercise of the power of eminent domain for a purpose not constituting a public use. Circuit Judge Allen wrote a dissenting opinion. Petition for a writ of certiorari was filed in the United States Supreme Court on Sept. 12, 1935, and granted on October 28, 1935. However, on motion filed by the Federal Government, the case was dismissed by the Supreme Court on March 5.
In a statement issued by the Department of Justice on March 5, it was said:
"In view of the long period of relay, caused by court proceedings, the funds originally allocated have been diverted to other projects not involved in litigation and where it was possible to go forward with the work promptly.
“Even if the cases had been considered by the court, and the theory of the Government sustained, it would not have been possible to proceed with either of the undertakings notwithstanding the confirmation of the legal right to use the power of eminent domain in connection therewith. It was concluded, therefore, that it was not proper to submit to the court for decision cases which, as a practical matter, had become moot."
The dismissal of the Louisville case will affect in no way the low-rent housing projects which the Housing Division of the Public Works Administration now has under construction. However, such a dismissal leaves in force in Michigan, Kentucky, Ohio, and Tennessee, those States embraced in the Sixth Federal Circuit, the decision of the circut court of appeals of that circuit, supra, to the effect that the Federal Government has no right to acquire private property by eminent domain for purposes of slum clearance and low-rent housing. Low-rent housing projects, separate from slum clearance, undertaken by companies
which voluntarily limit profits In addition, efforts, separate and apart from the problem of slum clearance, have been made by individuals or groups, to provide housing accommodations for those of the middle economic strata. Such efforts have been exercised largely through private corporations which, in some instances, have voluntarily limited their dividend return.
Typical examples of housing companies in the United States with voluntarily limited profits are as follows:
City & Suburban Homes Co., of New York City, which house 3,540 families, restricts its rate of return on investments to from 3 to 6 percent. The housing projects, under the supervision of this company, were built between 1897 and 1932. Rentals per room per month ranged from $7.84 to $13.57, with the average rental per room per month being $9.68. These rentals include the cost of heating.
Metropolitan Life Insurance Co., of New York City, houses 2,125 families. These buildings had tax exemption under the New York law until 1932, which made it possible to amortize enough of the mortgage so that the rents could continue unchanged after taxes were resumed. This company restricted its rate of return on investments to 6 percent plus amortization until it began to pay taxes. The housing projects under the supervision of this company were built between 1922 and 1924. Rentals per room per month averaged $9 which includes the cost of heating.
Paul Laurence Dunbar Apartments, of New York City, constructed in 1927, houses 514 families. This company restricts its rate of return on investments to 542 percent. Rentals per room per month range from $11.50 to $17.50 with an average of $14.50. This average includes amortization for acquisition of cooperative ownership, which are excluded from present charges, which average $12.95, because of the depression. The present rate, therefore, is fairly equivalent to rent.
Sanitary Improvement Co., of Washington, which houses 713 families, restricts its rate of return on investments to from 5 to 6 percent. The housing projects, under the supervision of this company, were constructed between 1897 and 1934. Post-war rentals per room per month averaged $9.58 with heat while the present average rental per room per month without heat is $4.93.
Sanitary Housing Co., of Washington, which houses 245 families, was originally limited by charter to 4 percent dividends. However, at this rate of return on investment, the company was unable to secure additional capital for extending the development after the first row of buildings was constructed. Therefore, its charter was amended to permit 5 percent. The housing projects, under the supervision of this company, were constructed between 1904 and 1920. The rental per room per month averages $5.48, which does not include heating.
Model Homes Co., of Cincinnati, which houses 441 families, restricts its rate of return on investments to from 5 to 6 percent. The housing projects, under the supervision of this company, were constructed between 1912 and 1927. Rentals per room per month ranged from $4.25 to $6, not including heat. So far as these rents are for post-war buildings, they are not self-sustaining. Rents originally charged for post-war housing were $9 and $10 per room per month.
Bayonne Housing Corporation (Rockefeller), of Bayonne, N. J., which houses 149 families constructed its projects in 1924. Rentals per room per month range from $9 to $10.25, which include heating.
Prudential Insurance Co., Chellis Austin Apartments, Newark, N. J., built in 1931, house 406 families. Rentals per room per month average $10.80 to $12.60, which include heating.
Prudential Insurance Co., Douglass Apartments, Newark, N. J., constructed in 1934, house 374 families. This organization restricts its rate of return on investments to 342 percent. Rentals per room per month ranged from $8 to $10 with an average of $9 including heating. These comparatively low rentals were made possible by the cooperation of the city of Newark in purchasing a wide strip for a public park through the center of the two blocks occupied by the development.
Marshall Field Garden Apartments Harris, Chicago, constructed in 1929, houses 628 families. The original rate of return on the investment was 2.37 percent, but dropped to 0.38 percent in 1933. However, in 1914 a small positive return was shown. Originally, the rental per room per month ranged from $12 to $15 with an average of $13.55, which included heating. The present average rental per room per month is $9.50, which includes heating.
Rosenwald Fund Michigan Boulevard Garden Apartments, Chicago, constructed in 1929, houses 421 families. The original rate of return on the investment was 4.21 percent, but showed a deficit of 0.35 in 1933. However, in 1934, a small positive return was shown. The original rental range per room per month was $11.50 to $14, with an average of $12.65, including heat. Rents also included gas and electricity for cooking, light, and refrigeration.
The above compilation of housing companies in the United States which voluntarily limit profits is taken from a table which appears on page 106 of the booklet, "Slums and Blighted Areas in the United States", by Edith Elmer Wood, published by the Federal Emergency Administraton of Public Works, Housing Division, as Housing Division Bulletin No. 1. With regard to the limited dividend housing companies omitted from this compilation, it is said in a footnote
“Aside from the omission of companies with dividends limited by the New York State housing law and the National Recovery Acts, this table omits such limited-profit projects as Sunnyside and Phipps Garden Apartments, New York, Radburn, N. J., Mariemont, Cincinnati, and Chatham Village, Pittsburgh, because they were built for still higher income groups. Some very small projects were omitted as showing nothing different from the ones chosen, others because of their unfavorable financial condition. Some very old ones are omitted, because standards and building costs have changed so much that they have only historic interest. Employers housing does not belong here. When intended for rank-and-file workers, it is either very old, very poor, or run at a loss. Lavanburg Homes is omitted because built by a foundation, with no return sought.”
BUILDING REQUIREMENTS, ZONING AND PLANNING
INDIRECT METHODS WHEREBY THE RECURRENCE OF SLUM AREAS MAY BE
Status of building regulations in United States. Some sixteen hundred municipalities in this country have building codes. Others have fire-limit ordinances containing somewhat indefinite requirements. Through attention focused on the subject during the last 15 years by organizations of building officials and fire underwriters and by the Federal Government, a marked gain has been made in the extent and quality of these regulations. Many still lag behind current practice, however, as is evidenced by the fact that 325 codes were reported to be 15 years old last year. Occasional amendments make this age less serious in some cases than would at first appear, but the need for constant vigilance in keeping codes abreast of modern knowledge is apparent.
Federal Government's efforts to improve municipal building regulations.-Since 1921, the Federal Government has shown particular interest in improved building regulations. A building code committee was set up in the Department of Commerce in that year, functioning in connection with the National Bureau of Standards. A report embodying its recommendations for building exits was issued by the National Bureau of Standards in 1935. This committee also undertook, among other things, the task of drafting basic requirements for general use by municipalities in their formulation of building codes. Considerable progress was made; but, due to insufficient appropriation, this work was discontinued. However, recommendations issued periodically by this body have had wide influence. They have included reports on small dwelling construction, plumbing, assumed live loads, code arrangement, masonry construction, working stresses in building materials, and fire resistance. Utilization of new materials and methods has been encouraged in the interest of efficiency and economy through the adoption of the so-called performance basis, under which the object to be attained is emphasized rather than specified materials or types of construction. The committee was discontinued in 1934.
At present, work in the development of improved building regulations is carried on by the American Standards Association, which provides a medium for gathering the composite judgment of architects, engineers, building officials, Government experts, and others, and for publishing their conclusions for general use. The National Bureau of Standards is cooperating in this work and continues to advise States and municipalities with regard to their building code problems.
Legal validity building regulations.—Building regulations have an established place as a valid exercise of the police power in the interest of public safety and health. They provide minimum standards through which States and municipalities may control the ignorant, the careless, and the unscrupulous.
3 This section on building requirements was prepared by Mr. George N. Thompson, Chief of Building Codes Section, National Bureau of Standards.
Zoning Scope of municipal zoning.- A comprehensive municipal zoning ordinance usually provides regulation of (1) the use to which the land and structures are put; (2) the height or number of stories of buildings; and (3) the area of the lot to be occupied by the building.
Under such comprehensive ordinances, a municipality is divided into use, height, and area districts which may or may not be conterminous. Provisions are made uniform for each class or kind of buildings throughout each district but the regulations in one district may differ from those in other districts.
Development of zoning in the United States.—Zoning legislation has been under development in the United States during the past 30 years. Prior to 1916, zoning efforts consisted of limiting the height of buildings in certain sections of the city of Boston and other eastern cities and the control of the use to which buildings were put in California and Wisconsin. These simple limitations in turn gave way to more complex regulations as to height and area of buildings and grounds, and as to the use to which the property might be put in certain restrictive areas. However, it was not until 1916, when legislation was enacted to carry out a comprehensive zoning plan for New York City, that zoning, as we understand it today, was instituted.
By the end of 1916, 8 zoning ordinances were in effect; and this total was increased to 35 by 1920. Beside cities in the States already mentioned, those in the States of Massachusetts, Michigan, Missouri, Ohio, Wisconsin, Indiana, and Pennsylvania followed the lead before the end of 1924 and many others had begun consideration of such a measure which resulted in ordinances during the following years.
Today comprehensive zoning legislation, providing for the control of the use, height, and area of buildings in cities, towns, and counties is in effect in 46 States and the District of Columbia.
And in the other two, Washington and Vermont, zoning is in practical effect. In the former the general home-rule provision of the constitution has been construed to permit cities of the first-class to adopt zoning regulations; while in the latter, the legislatures follows the policy of conferring ch zoning authority on those cities which desire to pass such ordinances.
State enabling acts passed to enable municipalities to zone.-To enable municipalities to pass zoning ordinances, it was necessary in most cases for the States to enact enabling acts, whereby the cities and towns were authorized to create zoning authorities and adopt municipal zoning ordinances in the interest of the public health, safety, and welfare. A standard State enabling act, prepared by the Advisory Committee on Zoning of the Department of Commerce, has been adopted by the following 35 States: Alabama, Arizona, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Iowa, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, West Virginia, Wyoming.
Extent of zoning in the United States.- Pursuant to such enabling legislation, zoning ordinances are now in effect in 1,236 municipalities, counties, townships, and unincorporated areas, representing a population of approximately 50,000,000 people, or 70 percent of the urban population of the United States. Among these zoned municipalities are 83 of the 93 cities having more than 100,000 population each, 470 cities ranging from 10,000 to 100,000 in population, and 563 ranging from 1,000 to 10,000 in population.
New York has the greatest number of zoned cities, i. e., 215, representing a population of more than 10,300,000 people. New Jersey follows with 132. Then comes California with 113 and Illinois with 93.
Federal assistance in zoning.-The Federal Government recently has shown a particular interest in the adoption by municipalities of carefully drawn zoning ordinances. In 1921 the Division of Building and Housing of the Bureau of
4 Statistics presented in this section of this report are taken from the following mimeographed bulletins of the Division of Building and Housing, Bureau of Standards, Department of Commerce: Zoning Progress in the United States, compiled by Norman L. Knauss (April 1930); Zoned Municipalities in the United States, prepared by Norman L. Knauss (May 5, 1933); Zoned Municipalities by Population Groups (May 19, 1933); Municipal Zoning Ordinances, a Brief Comparison of the Use and Height Regulations in Sixteen Cities, by the Advisory Committee on Zoning (1924); Supplement to Municipal Zoning Ordinances-Notes on Recent Zoning Ordinances, by the Advisory Committee on Zoning (1925); Zoning Height Regulations, a Comparison of 38 Zoning Ordinances Adopted 1926–28 by the Advisory Committee on City Planning and Zoning (November 1928); and a printed pamphlet of the Division of Building and Housing, Bureau of Standards, Department of Commerce, entitled "Ā Zoning Primer" (1926).
Standards was established in the Department of Commerce. In connection with the work of this Division, an Advisory Committee on Zoning was appointed This committee made an intensive study of the status and extent of zoning ordinances in the United States, the legal validity of such ordinances and the types of ordinances which best met the needs of the large metropolitan areas as well as those for the small municipalities. This committee drafted a standard State zoning enabling act, referred to above, and had published a pamphlet on the basic requirements which should be contained in municipal zoning ordinances. In addition, the Division of Building and Housing and the Advisory Committee on Zoning cooperated with States and municipalities in the drafting of State enabling legislation and municipal zoning ordinances. The Department of Commerce failed to receive sufficient appropriation to carry on the work of the Division of Building and Housing in 1933. Therefore, this Division was discontinued and the Advisory Committee on Zoning was dissolved in 1934, the records on zoning being transferred to the National Resources Committee.
Legal validity of zoning ordinances.5– Under the system of written constitustitutions which we have in the United States, the regulation of property rights must be by due process of law, otherwise the courts will declare such regulations void. Therefore, zoning ordinances, based on the police power of the States, must be reasonable and impartial, and based on the health, safety, morals, and general welfare of the community. (Lincoln Trust Co. v. William Bldg. Corp., 229 N. Y. 313 (1920).)
Courts uphold municipal zoning ordinances which regulate height, area, and bulk of buildings and size of courts and yards.-So far, the courts have upheld the legal validity or constitutionality of municipal zoning ordinances which regulate the height, area, and bulk of buildings and the size of courts and yards, when such regulations are so empowered by the State. This is not to say that every case relating to height and area has been decided by the courts favorably to the municipality. Sometimes a city zones before the State has passed an enabling act for zoning. (People ex rel. Friend v. City of Chicago, 103 N. E. 609 (1913); Matter of Barker v. Switzer, 209 App. Div. 151 (N. Y., 1924); State ex rel. Shad v. City of Jacksonville, 105 So. 733 (Fla. 1925).) Sometimes the height zoning is for a particular preferential locality that it is desired to beautify. (Piper v. Ekern, 194 N. W. 159 (Wis., 1923).) Sometimes the regulation is not related to the health, safety, and general welfare of the community as where an ordinance tries to prohibit one-story stores and force all stores to have two stories or more. (Romar Realty Co. v. Board of Commissioners of Haddonfield, 114 Atl. 248 (N. J., 1921); Dorison v. Saul, 118 Atl. 691 (N. J., 1922).) Sometimes the regulation is deliberately intended to protect obsolete one-family houses at the expense of the normal development of a multifamily house or business district. , (Matter of Verplanck, Supreme Court, Westchester County, White plains, N. Y., order of Mr. Justice Morschauser, May 4, 1923; Matter of Isenbarth v. Barinett, 206 App. Div. 546 (N. Y., 1923).
But in every case where the municipality has been empowered to zone for height or area and has framed its regulations with some relation to access of light and air, fire protection, or facilitv for fighting fire, the courts have upheld the ordinance. (Welch v. Swasey, 214 U. S. 91 (1909); Cliffside Park Realty Co. v. Borough of Cliffside Park, 114 Atl. 797 (N. J., 1921); State ex rel. Klefisch v. Wisconsin Telephone Co., 195 N. W. 544 (Wis., 1923).)
Courts also uphold municipal zoning ordinances which restrict use to which property may be put.-In addition, with the exception of the State of Maryland, the courts uniformly uphold zoning ordinances which restrict the use to which the property may be put. (See Hadacheck v. Sebastian, 239 U. S. 394 (1915); City of Des Moines v. Manhattan Oil Co., 184 N. W. 823 (Iowa, 1921); Ware v. City of Wichita, 214 Pac. 99 (Kans., 1923); State ex rel. Civello v. City of New Orleans, 97 So. 440 (La., 1923); State ex rel. Carter v. Harper, 196 N. W. 451 (Wis., 1923); State of Ohio ex rel. Dantzig v. Durant, 21 Ohio Law Bull. and Rep. (No. 43) 395 (Court of Appeals, 1923); Motor Home, Inc., v. Hedden, Superior Court, Los Angeles County, Calif., Nov. 14, 1923; City of Memphis v. Gianotti, Supreme Court, Tennessee, Western Division, Mar. 29, 1924; Santangelo v. City of Cincinnati, 25 Ohio N. P. (N. S.) 49; State ex rel. Beery v. Houghton, 204 N. W. 569 (Minn., 1925); City of Youngstown v. Kahn Brothers, 148 N. E. 842 (Ohio, 1925); City of Wilmington v. Turk, 129 Atl. 512 (Del. 1925); U. S. ex rel. Steerman v. Oehmann, Supreme Court, District of Columbia, July 6, 1925; Spector v. Town of Milton, 145 N. E. 265 5 This section of the report is a digest of an article, Zoning
and the Courts, by Edward M. Bassett, mimeographed by the Division of Building and Housing of the Bureau of Standards of the Department of Com. merce April 1931.