CHAPTER II

EXCESS AND ZONE CONDEMNATION AND REPLOTTING IN EUROPE

Excess condemnation, zone condemnation and replotting are related extensions of the power of eminent domain and of the police power. Only one of these extensions, excess condemnation, has been employed in this country; but the others have proved so useful in Europe that it is well worth our while to examine them in the light of their history and consider to what extent they would be serviceable and legal here.

Excess Condemnation.-Excess condemnation is the somewhat unfortunate name in the United States for a development of the power of eminent domain exercised under various names in most European countries. There, as here, private land can be condemned only for a public use. It follows that land only in an amount sufficient for that use can be so taken. The advocates of excess condemnation, so called, claim that there are many cases in which land just outside the physical limits of the principal enterprise should be appropriated for purposes incidental to, and thus a part of it. To call this "excess" condemnation, is to admit that the claim is unfounded and the taking illegal. A better name would be "incidental" condemnation; but it is probably too late to make the change.

An illustration of excess condemnation is the laying out of a new street and the possible taking of land on each side of it, outside the proposed street lines. For what reasons would the city planner wish this extra land; would a taking of it be so related to the construction of the street as to be for street use? If so, this land may be obtained by eminent domain.

Excess condemnation is most often urged either for the cutting of a new business street, or the widening of an old one

through a low class development in the center of the city; or for the laying out of a boulevard in the outskirts through unimproved land. In either case one or more of three effects may be expected:

First, the adjacent land may be raised in value. In this event the building of the street and the taking of the extra land to sell again in order to help pay for the street may well be regarded as included in the one business enterprise. The increased value is produced not by the local land owner but by the city. If the city does not obtain the profits resulting from this and similar enterprises which it undertakes, the net cost of these enterprises will be increased. No private business could long neglect such incidental gains and escape bankruptcy. Cities which adopt such a policy must either lack needed facilities or be burdened with ever increasing debts.

Secondly, the cutting of the new street may leave remnants of lots on each side of it not large enough for independent improvement, which shut off the land immediately back of it from the street and preclude the possibility of its development. If proper building on the street is delayed until private initiative unites the remnant and the land back of it in common ownership, the delay will be a long one. The result will be that the city will lose much in taxes, and the new street, by reason of its ugly appearance for so many years, will be given perhaps a character that will permanently impair its usefulness and lower values on it.

A third effect may be that the use of the adjacent land, even if not cut into remnants, may lessen the usefulness of the principal improvement. A boulevard with cheap houses bordering it is no longer the beautiful boulevard that the city spent its money to create; a view which the boulevard was planned to exhibit to those using it may be spoiled by a solid row of tall buildings or by buildings at wrong points. If the adjacent land is taken wherever necessary and resold with covenants against such uses of it, the boulevard is improved for the purposes for which it was built.

Street construction is not the only connection in which ex

cess condemnation may be employed. On the contrary, it is expedient in carrying out most public improvements. A new municipal building of any pretension raises neighboring land values, and if the city does not appropriate the resulting profit, an asset of value is neglected. An inappropriate use of adjacent land mars the effect of the building on which public money was spent. This is bad business as well as bad taste. For the same reasons condemnation of land adjacent to a new park or similar public undertaking may be in the public interest. For much the same reason, land bordering on a public or quasi public industrial enterprise should generally be publicly controlled.1 Thus the location of appropriate industries on land bordering on a municipally owned railroad would raise the value of that land; and the related development of road and industries would increase the efficiency and profits of both, or, with governmental control, would lower transportation rates and the prices of goods to the consumer. If the road were built and run by private capital, the city or state could obtain its profits by the sale or taxation of the franchise given for such a quasi public enterprise, or enforce lower rates and prices by control in the public interest. In the same way most if not all industrial improvements, public in their nature, could be made to serve the public more efficiently or yield additional public revenue. In fact, it is difficult to conceive of a wisely planned and executed public or quasi public work in which the improvement and the land near it, whether that land is ultimately in public or private ownership, should not be used in harmony and, therefore, developed under common control with that end in view.

Zone Condemnation.-Zone condemnation is the condemnation of an entire zone or district. It is usually employed in the built up parts of cities where the tract in question consists partly of private land, partly of public areas, and is especially useful in the elimination of slums. In such cases it is

In Prussia (Gesetz Sammlung, or Collection of Laws, for 1905, p. 179, No. 13, Sec. 16) under the "Law with regard to Construction of Canals, of April 1, 1905," the State is given the right to condemn land on each side of certain state canals within a zone on each side not to exceed one kilometer in width.

not one street with the land abutting on it as in excess condemnation, but a network of streets with the included land that is taken.

In zone condemnation the land in the district selected is taken with all its improvements, public and private, the private owners are paid the value of their property at the time of its condemnation, the improvements, so far as necessary, destroyed, all the land thrown into a common mass, the land for public uses withdrawn, the tract replanned and re-subdivided, and the land destined for private uses resold. The destruction of buildings, streets and similar improvements is expensive but necessary. The bad conditions are usually due not alone to the state of the buildings, but to the fact that buildings as a whole occupy so large a percentage of the area as to leave insufficient space for light and air; that block and lot divisions are faulty; and that streets and other public open spaces are badly planned and located, or insufficient for local needs. Complete replanning in such cases is essential.

Replanning of this sort must be done under the power of eminent domain because the only practical way of financing it is by condemnation and resale. The heavy cost of such a proceeding cannot be imposed upon the private owners. Often the increment is slow in accruing and, when it comes, is too small to pay all the costs; sometimes the land is better suited to new uses with lots of different sizes and shapes, and cannot profitably be so subdivided as to be returned to the former owners. It is only the state that can recoup, and it is only by recoupment that the state can recover what can be thus saved.

Replotting. Replotting is the re-subdivision of building land. The size and shape of building lots and their relation to each other and to neighboring streets and other public features, greatly affect the character of buildings erected on these lots. It is for the public interest that the plotting should be such as to encourage the construction of healthful dwellings and convenient stores and factories. Proper subdivision is also essential to economical real estate development; and such development, tending to make building lots cheap and abundant, is a

public advantage. It is, therefore, proper that it should be done under public supervision.

In publicly guided replotting, the land is thrown into a common mass, replanned and re-subdivided, as in zone condemnation; but the authorities, instead of paying for and reselling the land destined for private uses, return it to the original owners in the proportions, so far as possible, in which it was contributed. The expenses of the improvement are charged to the land.

Replotting, like zone condemnation, is re-subdivision; but while zone condemnation is a use of the power of eminent domain under which the land must be taken and paid for, thus tying up public funds for a considerable period and involving the public in complicated real estate transactions, compulsory replotting is accomplished by means of the police power, without either of these disadvantages. This difference of procedure is rendered possible by the difference in the task to be accomp lished. Where land is highly improved, the costs and losses of re-subdivision, involving the destruction of expensive improvements, met slowly and perhaps only partially by the accrual of increment in value from replanning, would be an intolerable burden upon the private owners; whereas if the land in question is only slightly improved, the cost is small and the increment immediate. It is the absence of costly structures to be demolished which makes re-subdivision by replotting, under the police power, appropriate and fair.

The object sought to be attained by the use of the power of eminent domain in excess and zone condemnation and of the police power in compulsory replotting, is the proper development of the territory involved. To the city planner this result, whether achieved with or without the consent of the owners of the land in question, is equally acceptable. The practical planner recognizes the fact, however, that without compulsion this can seldom be accomplished with the same promptness, fullness and economy, since almost invariably a few of these owners do not realize that the enterprise is in the interest of all, or they see in it opportunity to seize an unfair advantage; and a resort to compulsion is, therefore, necessary to avoid