aesthetics alone has not thus far been considered by the courts to be a sufficient basis for zoning when done under the police power. (5) Before enacting zoning regulations a city should have obtained the power to do so from the state legislature. The essential statement in such grant of power is that the city may impose different regulations for structures and for the uses of land and structures in different districts. (6) Zoning is part of the city plan and should be applied to land as early as possible and where practicable at the time the street layout is adopted. Studies for zoning in undeveloped districts should be accompanied by studies for at least main and secondary thoroughfares. (7) Zoning when applied to existing cities should be adapted generally to existing conditions but should endeavor to check undesirable tendencies. (8) In the same city, localities having substantially a like character and situation should be zoned in the same manner. This principle should prevent arbitrary, piecemeal or partial zoning, which is dangerous and may be illegal. (9) Zoning should be sufficiently stable to protect those who comply with the law, but at the same time should be susceptible of change by the municipal authority under strict checks prescribed by state law, so that it can be altered to meet changing conditions or conditions not adequately recognized. (10) Provision should be made that interested property owners may initiate the consideration of changes, but the actual application of the zoning regulations to the land and any changes therein should rest with the municipal authority and not with the property owners. It is a wise expedient to require more than a majority vote or even a unanimous vote, of the municipal authority to changes unless a substantial majority of the property owners affected thereby have given their consent thereto. (11) Zoning regulations may properly be supplemented by restrictions in deeds based upon purely aesthetic reasons or for the purpose of creating a uniform residential development or for other purposes. (12) Regulations applicable to all buildings of a class regardless of location, such as relate to plumbing, strength of material, safety devices, or protection of employes against fire should not be placed in a zoning law. They are properly part of a housing law, factory law or building law. Only those requirements which differ in different districts enter into a zoning law. (13) Use districts normally comprise residence, business, light industry and heavy industry districts. The kinds of industries prohibited in light industry districts should be enumerated. Residences should be permitted in business districts and both residences and business should be permitted in light industry districts. It is a moot question whether and under what conditions residences should be prohibited in heavy industry districts. Classes of use districts should be few. The more minute adaptation to local needs should as a rule be provided for in the area and height zoning and by permitting special uses under conditions stated in the ordinance or under the administration of a board of appeals empowered to make building exceptions. There is lack of agreement as to the desirability and legality of prohibiting apartment houses, flats, tenement houses and other multiple dwellings in certain districts limited to single family dwellings. (14) Where zoning regulations apply only to new buildings (as is the safer practice) buildings occupied for non-conforming uses should be placed under constant pressure to become conforming through changes with the lapse of time. (a) Structural alterations made in a nonconforming building should not during its life exceed one-half its value, nor should the building be enlarged, unless its use is changed to a conforming use. (b) No non-conforming use should be extended by displacing a conforming use. (c) In a residence district no non-conforming building or premises devoted to a use permitted in a business district should be changed into a use not permitted in a business district. (d) In a residence or business district no nonconforming building or premises devoted to a use permitted in a light industry district should be changed into a use not permitted in a light industry district. (e) In a residence, business or light industry district no building devoted to a use excluded from a light industry district should be structur ally altered if its use shall have been changed since the time of the passage of the ordinance to another use also excluded from a light industry district. (f) In a residence, business or light industry district no building devoted to a use excluded from a light industry district should have its use changed to another use which is also excluded from a light industry district if the building has been structurally altered since the time of the passage of the ordinance. (15) In business and industry districts towers within a prescribed height limit should be permitted but should not occupy over one-quarter of the lot area. They should be allowed on the street line all the way up, but should stand away from side lines according to a suitable rule. (16) Height limitations should be determined primarily by widths of streets and the use of the property. There should also be flat maximum limitations irrespective of street widths which should be fixed with due regard to local conditions. (17) Included in area limitations there should be a provision for the percentage of lot that can be covered and a limitation of families per acre or of the minimum square feet of lot area per family. (18) There should be an administrative board with power under state law: (a) To rectify on appeals the errors of building superintendents in passing on applications for building permits. (b) To decide borderline and exceptional cases of buildings where specified in the ordinance. (c) To vary the literal requirement of the law in individual cases of buildings where unnecessary and excessive hardship is caused and the intention of the law is equally accomplished by an alternative method to be prescribed. Not only should the powers of such a board be specified in the ordinance, but the state legislature should authorize the municipal authority to create such a board and to provide in the ordinance what borderline and exceptional cases it may decide. A larger vote than a mere majority should be required for an affirmative decision. Proceedings and records of the board should be public and members of the board should be removable for cause. Decisions of the board should be subject to court review. VII. SUGGESTIONS FOR FORMS OF LEGISLATIVE ENACTMENTS The acts of the legislature of the state of New York probably cover the subject of zoning more completely than those of any other state. Reference to these enactments is more confidently made by the author because they have been worked out from the ground up in the most painstaking manner, and have stood the test of court construction in New York city. The statutes applicable to New York city will be found in Chapter IX "Statutes and Ordinances." They are embodied in the charter of the city of New York. An Act to amend the general city law, in relation to the regulation of buildings and the location of trades and industries, passed May 15, 1917. (Section 20. Grant of specific powers. Subject to the constitution and general laws of this state, every city is empowered): 24. To regulate and limit the height and bulk of buildings hereafter erected and to regulate and determine the area of yards, courts and other open spaces, and for said purposes to divide the city into districts. Such regulations shall be uniform for each class of buildings throughout any district, but the regulations in one or more districts may differ from those in other districts. Such regulations shall be designed to secure safety from fire and other dangers and to pro mote the public health and welfare, including, so far as conditions may permit, provision for adequate light, air and convenience of access, and shall be made with reasonable regard to the character of buildings erected in each district, the value of land and the use to which it may be put, to the end that such regulations may promote public health, safety and welfare and the most desirable use for which the land of each district may be adapted and may tend to conserve the value of buildings and enhance the value of land throughout the city. 25. To regulate and restrict the location of trades and industries and the location of buildings, designed for specified uses, and for said purposes to divide the city into districts and to prescribe for each such district the trades and industries that shall be excluded or subjected to special regulation and the uses for which buildings may not be erected or altered. Such regulations shall be designed to promote the public health, safety and general welfare and shall be made with reasonable consideration, among other things, to the character of the district, its peculiar suitability for particular uses, the conservation of property values and the direction of building development, in accord with a well considered plan. PENDING AMENDMENT An Act to amend the general city law in relation to the regulation of buildings and the location of trades and industries. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Chapter twenty-six of the laws of nineteen hundred and nine, entitled "An Act in relation to cities constituting Chapter twentyone of the consolidated laws," as amended, is hereby amended by adding after Article 5, a new article to be Article 5-a, to read as follows: BUILDING AND USE DISTRICTS $81. Board of Appeals. 1. The mayor of any city may appoint a board of appeals consisting of five members, each to be appointed for three years. Such board of appeals shall hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to paragraphs twenty-four and twenty-five of section 20 of this act. They shall also hear and decide all matters referred to them or upon which they are required to pass under any ordinance of the common council adopted pursuant to such two paragraphs. The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant any matter upon which they are required to pass under any such ordinance or to effect any variation in such ordinance. Every decision of such board shall, however, be subject to review by certiorari. Such appeal may be taken by any person aggrieved or by any officer, department, board or bureau of the city. 2. Appeal how taken. Such appeal shall be taken within such time as shall be prescribed by the board of appeals by general rule, by filing with the officer from whom the appeal is taken and with the board of appeals of a notice of appeal, specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken. 3. Stay. An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of appeals after the notice of appeal shall have been filed with him that by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of appeals or by the supreme court, on application, on notice to the officer from whom the appeal is taken and on due cause shown. 4. Hearing of and decision upon appeal. The board of appeals shall fix a reasonable time for the hearing of the appeal and give due notice thereof to the parties, and decide the same within a reasonable time. Upon the hearing, any party may appear in person or by agent or by attorney. The board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and shall make such order, requirement, decision or determination as in its opinion ought to be made in the premises, and to that end shall have all the powers of the officer from whom the appeal is taken. Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, the board of appeals shall have power in passing upon appeals, to vary or modify any of its rules, regulations or provisions relating to the construction, structural changes in, equipment, or alteration of buildings or structures, so that the spirit of the ordinance shall be observed, public safety secured and substantial justice done. $82. Certiorari to review decision of board of appeals. 1. Petition. Any person or persons, jointly or severally aggrieved by any decision of the board of appeals, or any officer, department, board or bureau of the city, may present to the supreme court a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition must be presented to a justice of the supreme court or at a special term of the supreme court within thirty days after the filing of the decision in the office of the board. 2. Writ of certiorari. Upon the presentation of such petition, the justice or court may allow a writ of certiorari directed to the board of appeals to review such decision of the board of appeals and shall prescribe therein the time within which a return thereto must be made and served upon the relator or his attorney, which shall not be less than ten days and may be extended by the court or a justice thereof. Such writ shall be returnable to a special term of the supreme court of the judicial district in which the property affected, or a portion thereof, is situated. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order. 3. Return to writ. The board of appeals shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return must concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and must be verified. 4. Proceedings upon return. If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. 5. Costs. Costs shall not be allowed against the board, unless it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from. 6. Preferences. All issues in any proceeding under this section shall have preference over all other civil actions and proceedings. §83. Amendments, alterations and changes in district lines. The common council may from time to time on its own motion or on petition, after public notice and hearing, amend, supplement or change the regulations and districts established under any ordinance adopted pursuant to paragraphs twenty-four and twentyfive of section 20 of this act. Whenever the owners of 50 per cent or more of the frontage in any district or part thereof shall present a petition duly signed and acknowledged to the common council requesting an amendment, supplement, change or repeal of the regulations prescribed for such district or part thereof, it shall be the duty of the council to vote upon said petition within 90 days after the filing of the same by the petitioners with the secretary of the council. If, however, a protest against such amendment, supplement or change be presented, duly signed and acknowledged by the owners of 20 per cent or more of any frontage proposed to be altered, or by the owners of 20 per cent of the frontage immediately in the rear thereof, or by the owners of 20 per cent of the frontage directly opposite the frontage proposed to be altered, such amendment shall not be passed except by the unanimous vote of the council. §84. Article limited. This article shall not apply to the city of New York. Section 2. This Act shall take effect immediately. SCOPE OF THE POLICE POWER C., B. & Q. Railway v. Drainage Commissioners, 200 U. S., 561 City of Rochester v. West, 164 N. Y. 510 Watertown v. Mayo, 109 Mass. 315 Commonwealth v. Tewksbury, 11 Met. 55 City of Chicago v. Stratton, 162 Ill. 494, 35 Shea v. City of Muncie, 148 Ind. 14, 46 N. E. 138 Ill. 368, 105 N. E. 315, L. R. A. 1915 D 607 People ex rel. Keller v. Village ofOak Park (1915), 266 Ill. 365, 107 N. E. 636 People ex rel. Huntley Dairy Co. v. Village of Oak Park, Supreme Court of Illinois, April 22, 1915, 268 Ill. 256 People ex rel. Lincoln Ice Co. v. City of Chicago, Supreme Court of Illinois, October 28, 1913, 260 Ill. 150 Evans v. Reading Chemical Co., Supreme Court of Pennsylvania, March 12, 1894, 28 Atl. Rep. 702. People v. Lewis, Supreme Court of Michigan, 902 People ex rel. Corn Hill Realty Co. v. Stroebel, N. Y. Court of Appeals, November 18, 1913, 103 N. E. Rep. 735, 209 N. Y. 434 City of Spokane v. Camp, Supreme Court of Washington, October 15, 1908, 97 Pac. Rep. 770 People ex rel. Kemp v. D'Oench, 111 N. Y. 359 Tenement House Dept. v. Moeschen, 179 N. Y. 325 Welch v. Swasey, 193 Mass. 364. Affirmed: 214 U. S. 91 Gundling v. Chicago, 177 U. S. 183, 188 Cochran v. Preston, 108 Md. 220, 23 L. R. A. (N. S.), 1163 Ex Parte Quong Wo, 161 Cal. 20, 118 Pac. 714 In re Montgomery, 163 Cal. 457, Ann. Cas. 1914 A, 130, 125 Pac. 1070 Nahser v. City of Chicago, 271 Ill. 288, L. R. A. (1916), 95 People ex rel. Ormsby v. Bell, 218 N. Y. 212 Willison v. Cooke, 54 Colo. 320, 44 L. R. A. (N.S.) 1030 Spann v. City of Dallas, 189 S. W. 999 Bacon v. Walker, 204 U. S. 811 State v. Taubert (1914), 126 Minn. 371, 148 N. W. 281 State v. Withnell (1912), 91 Neb. 101, 135 N. W. 376, 40 L. R. A. (N. S.) 898 Horton v. Old Colony Bill Posting Co. (1914), 36 R. I. 507 In the Matter of the Application of Richard Russell, New York Supreme Court, Niagara Co., April 6, 1916 Quintini v. City of Bay St. Louis, 64 Miss. 483, 1 South 625, 60 Am. Rep. 62 State v. Gurry, Court of Appeals of Maryland, October 7, 1913, 121 Md. 534, 88 Atl. 546, 47 L. R. A. (N. S.) 1087, Ann. Cas. 1915 B, 957 Stubbs r. Scott, 127 Maryland 86 Bostock v. Sams, 95 Md. 400 Shepard v. City of Seattle, July 16, 1910, Supreme Hadacheck v. Sebastian, 239 U. S. 394 Rep. 1017. A valuable discussion of this and other cases by R. S. Wiggin in Minnesota Law Review, February, 1917. Lake Shore and Mich. So. Ry. Co. v. Ohio, 173 U.S. 285 Noble State Bank v. Haskell, 31 Sup. Ct. 186 (Va.) Bonnett v. Vallier, 116 N. W. Rep. 885 Calvo v. City of New Orleans, 67 S. W. Rep. 338 Edwards v. Bruorton, 184 Mass., 529 Curran v. Guilfoyle, 38 App. Div. 82 (N. Y.) Matter of Clinton Ave., 57 App. Div. 167 (N. Y.) 160 App. Div. 31 (N. Y.) People ex rel. Dilzer v. Calder, 89 (N. Y.) App. St. Louis Hill, 116 Mo. 527 (1893) AESTHETICS ALONE NOT A PROPER BASIS FOR EMPLOYMENT OF THE POLICE POWER People v. Wineburg Adv. Co., 195 N. Y. 126 People ex rel. Publicity Leasing Co. v. Ludwig, 218 N. Y. 540 People v. Green, 85 (N. Y.) App. Div. 400 School, 249 Ill., 436, 34 L. R. A. (N. S.) 998 Passaic v. Paterson Bill Posting, Advertising & Sign Painting Company, 72 N. J. L. 285 Varney v. Williams, Supreme Court of California, City of St. Louis v. Dorr, 145 Mo. 466, 42 Lawton v. Steel, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385 State ex rel. Omaha Gas Co. v. Withnell, Supreme Court of Nebraska, January 5, 1907, 110 N. W. Rep. 680 Parker v. Commonwealth, 178 Mass. 199 PROCEDURE UNDER ZONING ORDINANCES Whitridge v. Park, N. Y. Law Journal, February 19, 1917 Anderson v. Steinway, N. Y. Law Journal, January 23, 1917; N. Y. Law Journal, June 19, 1917 Albany Heights Realty Co. v. Vogt, N. Y. Law Journal, July 19, 1919 People ex rel. Beinert v. Miller, 165 N. Y. Supp. 602; 188 A. D. 113 People ex rel. Cotton v. Leo, N. Y. Law Journal, February 27, 1920 People ex rel. Flegenheimer v. Leo, N. Y. Law Journal, May 8, 1918 People ex rel. Sondern v. Walsh, N. Y. Law Journal, July 25, 1919 People ex rel. N. Y. Central R. R. v. Leo, N. Y. Law Journal, December 19, 1918 West Side Mortgage Co. v. Leo, N. Y. Law Journal, February 20, 1919 Whitridge v. Calestock, 165 N. Y. Supp. 640 |