CHAPTER V. Use of the Police Power in the Execution of a City Plan

USE OF THE POLICE POWER IN THE EXECUTION OF A CITY PLAN

The control over city building by reason of land ownership is not peculiar to a governmental agency, nor does it depend on legislative authority. Possession of land is the only essential, whether that possession be in a municipal corporation, or in a private corporation organized as a land company for the sole purpose of directing the development of the whole or parts of a city in accordance with a plan.

The type of control over city building which we are now to consider, however, is peculiar to a governmental agency. It grows out of the duty of the administrative body representing all the people to protect the rights of all from individual aggression. Through the process of acquiring lands and rights in land, the city merely by wise use of its possessions and without the exercise of governmental authority may induce the kind of development which is desirable. This process is gradual and may escape public notice. But in acting as the guardian of the community the city says to the individual, “Thou shalt not,” and by ordinance it restrains him from doing things on his own land which would damage the health, safety, or morals of the community.

In exercising this power the city council passes an ordinance, and the court determines whether the purpose of the ordinance is confined to those matters which have a real and substantial relation to the public welfare and whether the ordinance is reasonably calculated to carry out this purpose. These are the only tests applied. In a limited field this power of restraint is exercised without question, and ordinances have the strength of custom and legal decision behind them. In a still larger field it is assumed that restraint can not be exercised. But the doubtful ground between is constantly being encroached upon either by ordinances restraining the power of the individual or by decisions denying the power of the community. The law as made and as interpreted by the courts is constantly changing as the sentiment of the community changes.

A too intensive use of land is the chief contributing cause to poor housing, and shares with poor street planning the responsibility for economic losses consequent on every kind of street congestion. A use of land either for buildings unfit structurally for habitation or for other purposes offensive to the occupants of surrounding land reacts upon the use of the latter, tends to instability in values, and may blight a district otherwise adapted to a higher economic use, as for residence or retail trade. A well built city would control by means of segregation the use of land for purposes that would seriously conflict with those of other owners, and would insist on sanitary and structural excellence for its homes. Public control of all such matters on private land is accomplished directly under the police power. A complete catalogue of municipal regulations which limit the use of private land is not within the scope of this chapter, since many such regulations have little or no influence on the physical development of the city; but those which most affect the city plan will be considered under (1) limitations on the degree to which the intensive use of land may be carried, and (2) limitations on the degree to which the offensive use of land may be carried.

LIMITATIONS ON THE DEGREE TO WHICH THE INTENSIVE USE OF LAND MAY BE CARRIED

1. LIMITATIONS ON THE HEIGHT AND SIZE OF BUILDINGS

Most modern building codes interfere with the use of land by provisions limiting the amount of the lot which can be occupied and the height to which certain classes of buildings can be erected. Some cities impose an absolute height limit beyond which no building of whatever class of construction can be erected. Ordinances of this character are generally sustained by the courts on the theory that they provide a reasonable method of protecting the safety and health of the community. This is particularly true of some provisions which require a specific allowance of space between non-fireproof structures. The serious nature of the “conflagration risk” involved even in buildings of fireproof construction as established by the Baltimore and San Francisco fires would make this theory applicable even to non-combustible structures because of the combustible material which they contain. Thus the absolute height limitation of 125 feet imposed in Boston on buildings of all classes was sustained in Welch vs. Swasey, 193 Mass. 373:

“The erection of very high buildings in cities, especially upon narrow streets, may be carried so far as materially to exclude sunshine, light, and air and thus affect public health. It may also increase the danger to persons and property from fires and be a subject for legislation on that ground. These are proper subjects for consideration in determining whether in a given case rights of property in the use of land should be interfered with for the public good.... Merely because the commission has come to a conclusion different from that to which the court may come is not in itself sufficient to declare the result of the work unconstitutional.”

The decision of the state court was sustained by the supreme court of the United States in Welch vs. Swasey, 214 U. S. 91.

It is believed that this is the most extreme ordinance on the subject of height limitations of buildings in the United States which has received judicial approval by the highest courts.

How much further an ordinance could go and still be held within the police power can be decided only by framing the ordinance and getting it tested. Any other answer to the question would be a guess which is likely to be wrong. City planners ask, “Can buildings be limited to a height not greater than the width of the street between property lines?” Building regulations in Washington, D. C., provide that no building shall exceed in height the width of the street or be constructed to a height over 90 feet on a residence street or 110 feet on a business street, except that buildings may be erected to 130 feet on avenues 160 feet wide. In New York the case of People vs. D’Oench, 111 N. Y. 359, indicates the probable answer to the question, if the kind of buildings is limited to those used or intended to be used for dwellings of more than one family. The question presented to the court in that case was whether the act of 1885 applied to hotels. The act provided that “the height of all dwelling houses and of all houses used or intended to be used as dwellings for more than one family shall not exceed 80 feet in streets and avenues exceeding 60 feet in width.” The court found that there was no doubt of the competency of the legislature in the exercise of the police power under the constitution to pass such an act, but that the act did not apply to hotels.

Can wooden buildings used for residence be limited to two stories? Building regulations of 1909 for Memphis contain just that provision and there is little doubt that the ordinance would be sustained.

Regulations governing the size of a building in relation to its lot are not so generally adopted and are much more limited in application. An examination of the building codes of the 51 cities of over 100,000 population shows that at least 18, and among them three of the 10 largest cities in the country, have no ordinances on the subject. In several others the regulation is of the mildest kind; as, for instance, in the tenement house act for cities of Massachusetts (Acts 1913,