Chapter 333 of the Statutes of 1904, Was Empowered Merely to Divide the

city of Boston into districts of two classes in such manner that the parts of the city in which the greater part of the buildings were used for business or commercial purposes should be included in District A and the rest of the city in District B. The statute itself prescribed the limit of 125 feet for buildings in District A and further provided that in District B no buildings should be over 80 feet. Under a later act, chapter 383 of the statutes of 1905, the commission was empowered to designate that part of District B where buildings exceeding 80 feet and not exceeding 100 feet could be erected; and there was a further provision in this act which limited the height of buildings in certain designated districts to 70 feet. The commission’s first report fixed the boundaries of District A, and the second report regulated the height of buildings in District B in accordance with the width of the street and the width of the building. On all streets over 64 feet wide the buildings could be erected to one and one-half times the width of the street up to 100 feet, provided that their height did not exceed twice their narrowest width.

Boston’s several zones are more highly differentiated than even those of Köln, but the Köln regulations are much more severe than the most drastic of the Boston provisions. Thus Boston has a narrowly limited business zone and several other zones differing, not in accordance with the distance from the business center, but in accordance with the width of the street and width of the buildings. The commission’s report and the decisions of both the state and federal courts sustaining it are unique in the United States. The court held that in the exercise of the police power the legislature could determine an absolute height limitation for all buildings in the city, and could delegate to a commission the right to fix the boundaries of building districts and to establish varying height limitations in one of these districts.

This decision has been generally accepted as of great importance in working out some of the details of city planning. There is not involved in it the question of the amount of space which can be occupied by buildings in the different building districts, and for this reason the decision is not a complete precedent for the introduction of the zoning system of Germany in the United States, but it is likely that the Massachusetts court would uphold an ordinance framed to include all the details of the Köln system.

If the legislature can establish two building districts it certainly can establish three or even four. If its authority to delegate to a commission power to regulate the height of buildings in each district is sustained by the courts on the ground that it is a reasonable way of securing an adequate amount of light and air, it should follow that the power to regulate the amount of space that each building may occupy in a horizontal direction can also be delegated. Building codes prescribe the distance between buildings or the open space which must attach to each building, and this regulation is sanctioned by the decisions. It is as logical to provide a larger proportion of open space in districts where the demand for land is less as it is to provide less height for buildings in such districts. An ordinance which prescribes for different building districts varying amounts of land which may be occupied, as well as varying heights of buildings, is much more calculated to lessen the fire risk and to safeguard the health of the community than one which is operative only in the area of greatest land values and most congested occupancy. The burden is on the private owner to show that the legislative act is unreasonable. That the courts will be slow to declare unreasonable the legislative finding has been established in numerous decisions, and applying this test of reasonableness to an ordinance which would include the principle of the zone system of Köln it is difficult to see how it could be successfully questioned.

It is quite another question whether it would be expedient to introduce such an ordinance. Local conditions might be such that property owners would be right in refusing to entrust so important a question to a municipal administration or to a commission appointed by that administration. In purchasing lots they may cheerfully submit to the restrictions imposed by a land company, no matter how much their rights are curtailed. They may agree to set back their buildings 20 feet from the line of their property; they may agree to build nothing on the land except a dwelling house of certain value and to have the rest of it set out in gardens, and even to submit the position and design of their houses, hedges, fences, and gates for approval to a small committee representing the vendors of the tract. Such restrictions, when drawn to meet the conditions of the real estate market, attract buyers rather than repel them, because these restrictions upon the liberty of individual lot owners protect each against the danger of certain injurious actions by any neighbors. Yet a suggestion of control from municipal authorities might raise a strong protest. It is an interesting speculation whether some form of district building regulations subject to a referendum within each district will not meet American conditions successfully.

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

The right of the municipality in any given case to suppress uses of land depends on the language of its charter, but under a universal charter provision a municipality may protect the general welfare of its people, and many uses of land are enjoined under this general power.

1. USES OF LAND WHICH IMPAIR THE FREE USE OF A PUBLIC HIGHWAY

Encroachments on the highway of signs, awnings, posts, porches, stoops, stands, and so forth, are generally included among those offensive uses of land which are prohibited in the exercise of the police power. If their use obstructs the street or diminishes the space available for walking, or impedes traffic, they may be abated or indicted as nuisances, and it is not necessary that the comfort of the public should be interfered with materially.

But the right of suppression is as well put on other grounds. The municipality either owns the land in the highway or possesses an easement in the land for highway purposes, and can prohibit by virtue of this ownership any use inconsistent with those purposes. The case of the Fifth Avenue Coach Co. vs. City of New York, 111 N. Y. Supp. 759, is in point. The action was brought by the plaintiff coach company to enjoin New York City from interfering with advertising signs displayed on the outside of their auto stages which travel on Fifth Avenue. The court denied the injunction on the ground that the plaintiff did not show a clear right to warrant the interference of the court, since the ordinance of the city under which the advertising of the plaintiff company was prohibited was a reasonable regulation of the use of the street and did not operate to impair the plaintiff’s franchise. In discussing the nature of the plaintiff’s advertising business, however, the court said:

“It is along the entrance to parks and along the parks themselves preserved to attract lovers of nature and the beautiful that these unnatural and inartistic moving picture signs are displayed. But out of place, disagreeable and offensive though they are both to the civic pride and esthetic taste, and although the tendency of equitable jurisprudence is to extend its jurisdiction to include this situation, the fact remains that no authority now exists which will justify the legal conclusion that the plaintiff’s signs now constitute a nuisance.”

The decision shows a tendency to give increasing regard to esthetic considerations, since it holds the ordinance a reasonable street regulation. In the same way, without resorting to the police power, the municipality may regulate the use of streets for poles and wires, and may compel the placing of wires underground as a condition of the franchise.

2. USES OF LAND WHICH CONSTITUTE A NUISANCE

A use of land which is inherently unlawful and unprofitable and dangerous to the safety and health or offensive to the morals of a community may be treated as a nuisance, per se. Rotten or decayed food or meat, infected bedding or clothing, mad dogs, animals affected with contagious diseases, and imminently dangerous structures, are conspicuous instances of nuisances per se. Such conditions may be summarily abated without previous notice. A use of land which does not in itself constitute a nuisance, but may become so by reason of its locality or the conditions surrounding its maintenance, may be prohibited altogether or confined to certain parts of a municipality.

Certain occupations are so generally recognized as belonging to the objectionable class, either because of the odors or noises which are inseparable from them, although conducted in the most careful manner, that they are specifically named in municipal charters as nuisances which the municipality may abate. Thus, slaughter houses, glue factories, soap factories, canning factories, smelting works, rendering establishments, stables, and fertilizer factories are generally included in this class. Some of these ordinances have been tested by the courts and found to be a reasonable exercise of the police power:

Rendering establishments: Grand Rapids vs. Weiden, 97 Mich. 82 Meigs vs. Lister, 23 N. J. Eq. 199 Slaughterhouses: Harmison et al. vs. City of Lewiston, 46 Ill. App. 164 Ex parte Heilbron, 65 Cal. 609 Beiling vs. City of Evanston, 144 Ind. 644 Smelting works: Appeal of Pa. Lead Co., 96 Pa. 116 Stables: Shiras vs. Olinger, 50 Ia. 571 Fertilizer factories: Evans vs. Fertilizer Co., 160 Pa. 209 The emission of dense smoke: People vs. Lewis, 86 Mich. 273 Atlantic City vs. France, 74 N. J. Law 389 Harmon vs. Chicago, 110 Ill. 400

Other courts have come to different conclusions with the same or very similar ordinances applied under different conditions, the courts holding that a declaration by municipal authorities that an occupation is a nuisance does not make it so in fact:

Slaughter houses: Wreford vs. People, 14 Mich. 41 Stables: Phillips vs. City of Denver, 19 Col. 179 The emission of dense smoke: St. Louis vs. Heitzeberg Packing Co., 141 Mo. 375 St. Paul vs. Gilfillan, 36 Minn. 298

3. DIFFERENTIATED DISTRICT REGULATIONS

Legislation in Massachusetts gives a further right by authorizing boards of health of cities or towns “to assign certain places for the exercise of any trade or employment which is a nuisance or hurtful to the inhabitants, injurious to their estates, dangerous to the public health, or is attended by noisome and injurious odors.” They may also prohibit “the exercise thereof with the limits of the city or town or in places not so assigned.”

It does not seem to have been the practice of Massachusetts boards of health to exercise the right of assigning offensive occupations to certain parts of the city, and therefore the question of the right of the community to impair the value of private property by assigning objectionable occupations to certain districts has not been tested. The practical answer to this objection to segregating offensive occupations within defined limits is that they would be located only in those portions of the city where the value of the land or the character of occupation showed that legal actions by property owners included in the district would be unlikely, and, if brought, would be either dismissed or a nominal amount of damages be awarded.

Los Angeles has largely applied the principle of separating industrial districts from residential districts. By an ordinance adopted in 1909 seven industrial districts were established in the city, and by an ordinance of the next year all the rest of the city, with unimportant exceptions, was declared to be a residential district. The ordinance further provides that industrial occupations may be permitted in certain excepted portions of the residence district, and the right is reserved to except other portions as conditions warrant. It is made unlawful for any person, firm, or corporation “to erect, establish, maintain or carry on within the residential district described in