CHAPTER IV. Excess Condemnation

EXCESS CONDEMNATION

Excess condemnation, or the taking by a public agency under the power of eminent domain of more land and property than are needed for the actual construction of a contemplated public improvement with a view to selling the excess at such increase of value as may result from the improvement, offers, as suggested in the last chapter, a method of relieving the burden of the tax payers at large, and it is this feature that is likely to be emphasized in any discussion of the merits of the excess condemnation principle; but, entirely apart from its financial aspect, it has an importance in the execution of plans which is too little considered. We have seen in the first chapter that a serious obstacle to the realization of plans for improvement is the universal constitutional limitation on the power of eminent domain through the provision that land can not be taken unless it is “necessary for the public use.” The usual narrow construction of this phrase allows a public agency to take only the land or rights in land required for the actual use of the public. When a comprehensive plan of reconstruction involves the widening of a built-up street or the opening of a new street cutting through improved property, the municipality is allowed to take just enough land for the actual construction of the street irrespective of the size or shape of the lots left on either side of the improvement.

The disadvantage to the municipality is both physical and financial. The land owner receives as compensation both the value of land actually taken and the damage to his remaining land, and consequently often gets as much for a part of his lot as he would for the whole of it. Even where special assessment laws work effectively it is often impossible to show ground for such an assessment against a remnant that is distinctly inferior to the customary marketable lot in size or shape. In the absence of any effective control over remnants left by the construction of the improvement, the new highway is likely to be bordered by ugly vacant lots of irregular shape and size which are totally unsuited for use and likely to remain vacant until they can be brought under the same ownership with parts of adjacent lands so as to provide adequate building lots. One of the most marked instances of this was in the widening of Delancey Street to make a proper approach for the Williamsburg Bridge in New York City, where lots were left in some cases less than 10 feet deep. The plan for the establishment of a new traffic thoroughfare between the north and south terminal stations in Boston shows remnants, the entire length amounting to 48,274 feet, absolutely unsuited for independent development.

In so far as remnants are unsuited for proper development a use of them is induced which robs an improvement of much of its effectiveness. Financially the city loses because the sort of development which will increase assessed valuations is prevented. Esthetically the city suffers because it can not protect its streets, its parks, and boulevards by an effective control over the abutting land, and its show places are disfigured by a use of this land not in keeping with the character of the surroundings. It is for this reason that cities have been forced to see approaches to public buildings lined with ill-assorted structures, and park areas surrounded by unsightly dumps and bill-boards. The net benefit to the city of a given expenditure for park purposes may easily be reduced by these means to a small fraction of what was reasonably expected when the investment was made. To overcome these disadvantages and to secure the maximum of benefit from an improvement appears to be the primary aim of excess condemnation legislation in the United States.

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 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.

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: