it is unjust to deprive him of the only use he can make of that land for many years. It is no answer to his claim of damage that when the rear street is built his land will be benefited, for under proper laws he must pay for that benefit when it comes. And the city may change its mind and never build the street; in spite of the fact that for years it has kept it on the map.

A New Method of Protecting the Plan. As a method under the police power, of making a city plan of streets and perhaps a few other features binding upon property owners which, it is submitted, would be just to them and valid under our constitutions, it is suggested 15 that municipalities shall be authorized by state law to adopt plans binding upon them until amended in due form. If a land owner desires to locate an improvement in the bed of a mapped street or within mapped building lines (or perhaps on land destined, by the plan, for a small park or playground, or the site of a public building) he shall apply, in the building permit, for permission to locate an improvement contrary to the provisions of the city plan; and when, ultimately, the land is condemned he shall recover no damages for the improvement if it is so located without permission. The city, through its building department or other proper authority, shall grant this permission only when its refusal will unavoidably do the land owner substantial economic injury and in this connection shall take into consideration the possible uses of other land in the neighborhood belonging to the same owner and the possibility, in whole or in part, of changing the improvement or its location.

From the decision of the building department refusing permission to locate contrary to the city plan, there shall be an appeal to a board of appeals, who shall have the power to grant the permission with conditions calculated to lessen or altogether to avoid the expense to the city due to improvements when, later, the city condemns the land; no appeal to the courts

15 The suggestion was first made by the author at the session of the National Conference on City Planning held at Pittsburgh in 1921; at which time Edward M. Bassett, Esq., suggested valuable improvements which, with his permission, are here adopted; see the Proceedings of the Conference, and an article by the author in the National Municipal Review for July, 1921, entitled "Enforcing the City Plan."

being allowed until after resort to the board of appeals. This provision would both mitigate most if not all the hardship which the law might otherwise cause the land owner in special cases and make the law less vulnerable before the courts.16 In

"A draft of a statute along the lines suggested in the text was drawn up by Mr. Bassett, and is given below. For the sake of definiteness it was made as an amendment to the New York Charter. It should be noted that this charter provides that in the construction of all the features legally a part of the city map the city shall follow that map, except as amended in due form. For a reference to these provisions, see p. 154, 185 of this work.

The suggested act is as follows:

AN ACT

To amend the Greater New York charter in relation to the official map and plan, to prevent buildings in streets shown on such map and plan, and to empower the board of appeals to grant building permits in certain cases.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Sec. 1. Chapter VI of the Greater New York charter is hereby amended by adding after section 442 a new section to be known as section 442a, as follows:

Sec. 442a. Such map and plan is established to conserve and promote the public health, safety and general welfare. Accordingly for the purpose of preserving the integrity of such map and plan no permit shall hereafter be issued for any building in any street laid out in such map and plan, provided however that, if the land within such mapped street is not yielding a fair return to the owner, the board of appeals shall have power in a specific case to grant a permit for a building or buildings which will as little as possible increase the cost of opening such street or tend to cause a change of such map, and such board may impose reasonable requirements as a condition of granting such permit, which requirements shall inure to the benefit of the city. Before taking any action authorized in this section the board of appeals shall give public notice and hearing.

Sec. 2. Section 718d of Chapter XIV-A of the Greater New York charter is hereby amended so that it will read as follows:

Board of Appeals. Sec. 718d. The appointed members of the board of standards and appeals and the chief of the uniformed force of the fire department, exclusive of the other members, shall hear and decide appeals from and review any rule, regulation, amendment or repeal thereof, order, requirement, decision or determination of a superintendent of buildings made under the authority of title two of chapter nine of this act or of any ordinance or of the fire commissioner under the authority of title three of chapter fifteen of this act or of any ordinance, or of the labor law. They shall also hear and decide all matters referred to them or upon which they are required to pass under any resolution of the board of estimate and apportionment adopted pursuant to sections two hundred and forty-two-a and two hundred and fortytwo-b of this chapter. They shall also hear and decide applications for permits for buildings in streets laid out in the official map and plan of the city as provided in section 442a of chapter VI hereof. No member of the board shall pass upon any question in which he or any corporation in which he is a stockholder or security holder is interested.

both these respects a board of appeals would in this connection render a service analogous to that which it has so admirably performed under zoning laws.17

Hearings on appeals shall be before at least five members of the board of appeals, and the concurring vote of five members of the board of appeals shall be necessary to a decision.

The words board of appeals when used in this chapter refer to the said appointed members of the board of standards and appeals and the chief of the uniformed force of the fire department, when acting under the powers conferred by this section.

NOTE:-New matter in section 718d is in italics.

"In support of legislation for the establishment and protection of the city plan under the police power the late case of Windsor v. Whitney (95 Conn. 357; 1920) may be cited. In 1917 the State of Connecticut passed passed an act (Special Laws, 1917, No. 133; p. 827) for the planning of outlying parts of the town of Windsor, in the outskirts of the City of Hartford. The act provides for the creation of a planning commission with power to establish a street and building line plan for this territory; gives the land owner an appeal to the courts if he considers the plan for his land unreasonable, and forbids land development, the sale of lots and the erection of buildings not in conformity with the officially adopted or sanctioned plan. No compensation for the establishment of the plan is provided for.

In his brief in support of this act the attorney for the town of Windsor says:

"We anticipate that the defendants will claim that a man has a right to build and use private ways on his own land, that that is all that the present scheme amounts to, and that the State cannot interfere with this right without compensation. Without denying the right of a land owner to maintain private ways on his own land which do not affect other property, directly or indirectly, we shall show that this is not the situation involved in the present case.

"Section II of this act provides that the provisions of the act shall not apply to the Windsor Fire District, in other words, to the village of Windsor. The growth of the City of Hartford toward the North is extending into the southerly part of the Town of Windsor and land development schemes like the one engineered by these defendants are now in progress and probably will be more numerous in the immediate future. The present act is intended to properly provide for the conditions which prevail in the outskirts of a city.

"The complaint states that the defendants are endeavoring to sell a large number of building lots. The two parallel streets are 800 feet long. If the building lots are 50 feet wide, the usual width, there will be 16 building lots on each side of each of these streets, a total of 64. In addition there will be building lots on the cross street. It is obvious that in the natural course of events there will be a large number of houses erected on this tract within a few years and that a considerable number of people will live in them. This is not only probable but is the result which the defendants contemplate and are trying to bring about. It is respectfully submitted that this enterprise is one in which the State of Connecticut has a legitimate interest.

"If within the next few years this tract contains numerous dwellings and a considerable population, it will become the duty of the State of Connecticut and its agent, the Town of Windsor, to provide fire pro

Illustrations, of the service which a board of appeals could render in the administration of this provision of the planning law are numerous and varied; and of these illustrations I will cite three.

tection and police protection. In the interest of safety and morality lights must be provided. In the interest of health a sewer must be installed. Water must be furnished. The children must be provided with school facilities. In caring for all these essentials the State must use streets. We all know from experience that the normal result of such an enterprise is that the town sooner or later takes over such streets as public highways. If it does, grading, curbing, drainage, etc., become necessary and expensive. But whether these streets become public highways or not, the above public duties and many others will be eventually thrown on the Town of Windsor if the project of the defendants becomes

a success.

"We think further that the State and its agent, the town, are fairly entitled to take into consideration the relation of the tract in question to the general lay-out of highways in the town, both those already existing and such highways as the future is likely to call for in the neighborhood. It is obvious that if one land owner lays out streets according to his notions and the adjoining owner adopts an entirely different scheme, when the town eventually takes both groups of streets, the performance of its public functions will be greatly complicated. Wide, straight streets are not merely beautiful-they are the best streets for practical purposes. It is certainly not unreasonable that the town should have some control over the matter in advance.

"It may be contended that the time for the town to take a hand in the matter is when the necessity for actual public care arises. But we respectfully maintain that the State is fairly entitled to look forward to probable conditions contemplated by the parties in interest with proper foresight for its future duties and that this is supported by common sense and by the authorities which we have cited above. It is ridiculous to say that the State must stand by and watch the defendants and their vendees build up a considerable community and then step in and straighten out the street problems at greatly increased expense to both the State and the parties then concerned. The prudent and sensible thing for the State to do is to have its say now. This is what the present act seeks to accomplish. It is clear from the above citations that the police power of the State would enable it to handle the situation when the community has once come into existence and we think it equally clear that the police power of the State is broad enough to enable it to anticipate the future conditions indicated by the situation."

In sustaining the Act, the Court says:

"Unless this regulation can be supported as a legitimate exercise of the police power, the Act must fall. A town commission plan such as this Act contemplates is distinctly for the public welfare. Its theory is to lay out streets when and where the public need them, and of adequate width to meet the requirements of the community and of transportation. In such a plan each street will be properly related to every other street. Building lines will be established where the demands of the public require. Adequate space for light and air will be given. Such a plan is wise provision for the future. It betters the health and safety of the community; it betters the transportation facilities; and it adds to the appearance and wholesomeness of the place, and as a consequence it

If a land owner desires to erect a brick structure in the bed of a mapped street, the board of appeals could offer to authorize a wooden building, pointing out that such a building could be amortized in a given number of years, with a fair return to the land owner on the value of his land. No court could hold that (in the absence of other complications) the land owner was rightly aggrieved to whom such an offer was made, even if he could obtain a larger amount by violating the city plan, contrary to the general interest; for if the return is a fair one he is not unjustly deprived of his property.

If a building were proposed a part of which only would project into the future street, the board of appeals could offer to consent to a building of which the projecting portion was only one story high; backing up the proposal by plans showing the suitability and yield of such a building in such a location. reacts upon the morals and spiritual power of the people who live under such surroundings. The demands of a large city may excuse congestion, but in a small city or a country town there is no excuse for such living conditions. But unless some authority controls and regulates the land development, we may look for too narrow streets, too few or no building lines, and buildings erected, unstable in character, unsuitable in material, and inappropriate in construction. Our large communities all have their examples of the unregulated layout of streets and building lines and buildings; of instances of land development so as to yield the last penny to its promoters regardless of the public welfare; of community eyesores; of streets made over, whole sections changed, because at the beginning no reasonable provision was made for the safety, health or welfare of the community.

"Such an Act as this is conceived in public wisdom and serves great public ends. Courts will be reluctant to destroy it and with it its beneficent purposes." 95 Conn. 362-3.

It should be noted that there is a material difference between the Connecticut statute and the statutes for the establishment of city plans sustained by the courts of Pennsylvania and held invalid in all the other states in which the question has been raised. The Connecticut statute, unlike the others, provides for a modification of the plan to suit special circumstances and remove special hardships, granting the land owner feeling himself aggrieved an appeal to the regular courts for the purpose; and it is for this reason that the Connecticut judges, in the case under examination, in which the owner did not avail himself of this method of relief, are justified in assuming that "the regulations as to the lay out of the streets and building lines, and as to the issuance of building permits, are reasonable for that section and location." It may well be that, under Connecticut law and procedure, provisions for modification of the plan by appeal to the regular courts, especially in administering an act which applies only to outlying territory, would work well; whereas under acts to be made applicable also to city land, provisions for a board of appeal, more or less as suggested in the draft act given above, would be more appropriate.