Click here to be redirected to the APA Mobile Site optimized for mobile devices.
Historic PAS Report SeriesPAS published its first Information Report in 1949. To celebrate this history, each month we're presenting a new report from the archives. We hope you enjoy this month's fascinating snapshot of a planning issue of yesteryear.
Building Lines, Mapped Streets, Set Backs, Front YardsDownload original report (pdf) The American Society of Planning Officials in recent months has had many inquiries concerning the establishment of building lines. Building lines are utilized by communities principally to achieve planned street patterns. They help insure that buildings will not be erected in the bed of projected streets or of potential street widenings. There are few communities that are not concerned with the adjustment of their 18th and 19th century street patterns to 20th century community and traffic needs. However, this report does not discuss at length the necessity for determining community development needs, and the formulation of a comprehensive or "master" plan prior to the revision of street patterns. Nor does it discuss the limitations of street widening for the relief of traffic congestion, despite the importance of such considerations. Sometimes, there is confusion in the definitions and use of the terms "building lines" and "mapped streets". In this report, "building lines" refer to those special legal restrictions which may be established to prevent by the provision of setbacks, the building or rebuilding of structures on land required for the eventual widening of streets, or on land required for the establishment of projected streets. Building lines may also be established for the purpose of preserving residential and commercial front yards. The term "mapped streets" is frequently used to indicate any approved street shown on an official map, whether the street is in existence, or whether it is only projected. Thus, although "building lines" and "mapped streets" are not synonymous, when building lines establish an easement for future streets or widenings, they may be identical with "mapped street" lines. "Front yards" is the term usually applied in zoning ordinances to that area in front of structures, extending across the width of lots, and lying between the front line of the lot and the nearest line of the building, which is designed primarily to provide an air space. The "front yard" in the zoning ordinance has sometimes been employed as a building line to provide for the eventual widening of a street, When this has been done the purpose has often been concealed. Eminent Domain and Police Power Building lines can be established through the power of eminent domain or through the police power. When established under eminent domain, easements over the rights-of-way reserved for street purposes may be acquired, and compensation paid to the property owners damaged thereby. It is usually intended that the land actually needed for the widening shall be acquired at a later date and that compensation shall be paid for the land and those parts of any buildings which may have been constructed between the building line and the existing street line prior to the establishment of the building line. Extensive application of building lines under the power of eminent domain may be prohibitive in cost. By establishing building lines through the police power, no compensation is paid for easements; payment may be made however when the property is actually taken for the street widening or opening. The decision of the community to enforce these building lines is indicated by the withholding of building permits, and no new buildings may be erected or alterations made in existing buildings which do not conform to these building lines. Court Interpretation The courts are rather evenly divided as to the constitutionality of building lines, although in recent years the tendency has been to uphold them. However, many attorneys hold that building lines established to provide for future street widening through the police power are not constitutional. They claim that this is a deprivation of property on the part of the municipality. No generalizations should be made. What might be an unconstitutional or unfair taking of property in the case of a street with highly developed abutting properties, might be considered a reasonable regulation in the interest of public health, safety, and general welfare, if the abutting property is not built upon, if the lots are deep, or if no damage will actually accrue to the property or the property owner through a reduction in the depth of the lot. It must be cautioned that this is an exceedingly complicated process and that the experience in one state will not necessarily apply to another state. It has been customary to point to the Pennsylvania procedure and to suggest that since the courts have upheld the Pennsylvania laws, other courts will do likewise. It is important to understand that street openings and widenings have been authorized by means of a city plan and building lines by Pennsylvania legislation. There are separate acts for cities of the first class, cities of the second class, cities of the third class, boroughs and townships. An act of the assembly approved in May 1891 (amended in July 1913), required that "every municipality SHALL have a general plan of its streets and alleys, parks and playgrounds, including those which have been or may be laid out but not open; which plans SHALL be filed in the office of the engineer or other proper office of the municipality, and all subdivisions of property thereafter made SHALL conform thereto. No person shall hereafter be entitled to recover any damages for the taking for public use of any building or improvements of any kind which may be placed or constructed upon or within the lines of any located street, or alley, park or playground, after the same shall have been located or ordained by councils." There is additional Pennsylvania legislation which strengthens the powers of communities with respect to the establishment of street lines. There are many judicial decisions of the Pennsylvania courts relating to city planning and the protection of streets from encroachment. When the case of Harrison's Estate (250 Pennsylvania 129) was argued in 1915, the court said,
Then the court goes on to make this significant comment:
It must be remembered that the attitude of the courts has been changing in recent years, and that needs may be recognized as reasonable today which would not have been so recognized some years ago. There has been a vast increase in the movement of traffic. Courts are aware that the public safety requires wider streets than were needed in the days of the horse and buggy. Again it must be emphasized, however, that provisions must be reasonable, and that what might be a reasonable application of a building line on one street and in a particular community, might not justify a building line on a built up street in another community. For example, there is an unreported case in Ohio, namely, State ex rel. the Lucas Building Company v. Arnold De France, Commissioner of Inspection of the City of Toledo, Court of Appeals, July 1935. The property in question was at the intersection of two major streets, near but not in the central part of the main business district. Intensive business development had reached the vicinity of plaintiff's lot, but that lot still had the old small buildings, and plaintiff wished to proceed with the construction of a large commercial building. The intersection had heavy and increasing traffic on both streets. The original zone plan and ordinance placed the lot in a zone called "light industrial.'' After the enactment of the zoning ordinance, the planning commission made a major street plan designating future widths of many streets, including the two streets at the intersection, and this plan was incorporated by council into the zoning ordinance. It is fair to assume that although this line was established as part of the zoning ordinance, it was intended to provide for a future street widening. The property owner brought a suit in mandamus to compel the issuance of a building permit. The court upheld the ordinance and enforced the building lines on the ground that the 7 ft. setback in commercial districts was a reasonable police power regulation. Attention also ought to be called to the so-called Headley case. (Headley v. City of Rochester, Court of Appeals of State of New York, 272 New York 197, 5 N. E. (2d) 198, 1936). A leading case tried in the U. S. Supreme Court is that of Gorieb v. Fox et al. 274 U. S. 603 (1927) upholding a building line ordinance of Roanoke, Virginia. In this case, the court said:
The tendency in the state courts in recent years has been to uphold building lines, thus, there are some decisions upholding building lines established in various cities in Ohio. In view of the increasing need for street space and in view of the congestion of traffic and accidents being caused by inadequate streets, it is entirely likely that the tendency in the future will be to uphold reasonable regulations. Widening Existing Streets Much of the previous discussion relates to planned streets. What about building lines that have been established on existing streets? What experiences have there been? What methods have been employed? In the City of Detroit where a very extensive street-widening program was carried out some years ago, it was the custom of the building department, after a street had been ordered condemned by the Common Council, to stamp each permit with a statement indicating that the street was about to be widened, and that the owner was building at his own risk. It was generally agreed that this warning was of doubtful legal force, but as a result of it, more than 100 buildings were set back to the new line of the street on a single street (Livernois Avenue) thus saving the city considerable money, which might otherwise have been paid for buildings, when the land was finally acquired by the city. In the widening of Woodward Avenue, an important new hotel set its main structure back of the new street line, but placing a one-story structure out to the old street line. The owner of the property was compensated for the one-story structure. Subsequently, the charter of the City of Detroit was amended to permit the establishment of building lines. We have no record, however, of the utilization of the charter amendment for this purpose. In recent years, the city of Miami, Florida has imposed a series of 5 ft. building lines on downtown streets to provide for their eventual widening. Some new buildings have honored the new street lines, and have set back. A crisis arose recently, however, when an important downtown building was being thoroughly remodeled. The city insisted that the remodeling was of such a nature that the building ought to be set back to the new line. The property owner refused. Apparently, the legislative body in recent months has been permitting buildings to come out to the old line of the street, thus effectively destroying the building line plan. Abandonment of Building Lines Let us assume that a police power building line regulation has been imposed by the municipality, and that some of the property owners have conformed thereto. Let us assume in particular that a property owner is situated between two existing buildings, has set a new building back to the new line. Let us assume further that after some years, the legislative body changes its mind, with respect to this particular street, and decides that it shall not be widened. What is its responsibility to the property owner who has voluntarily set his building back, and is now in a pocket? One city attorney has ruled that there is no legal responsibility on the part of the community, but that there is a moral responsibility. In at least one community, a property owner who set his building back, has been compensated for the cost of moving his building forward up to the re-established former line, or building an addition up to this line. Standard City Planning Enabling Act The Standard City Planning Enabling Act prepared by the Advisory Committee on City Planning and Zoning of the U. S. Department of Commerce, and adopted in modified form by many states, devoted Title III to "Buildings in Mapped Streets,"
Section 22 provides for compensation and for the appointment of a Board of Appraisers to fix the amounts of compensation to be paid to the owners of lands reserved. Section 24 provides for an appeal from compensation awards, while Section 25 deals with compensation for buildings in reserved street location. Model City Charter The model city charter, prepared by the National Municipal League, in its section on Planning, Zoning, and Housing, has a paragraph dealing with lines of mapped streets. There is another section dealing with Buildings in Mapped Streets, which says in part.
Legislation Some states, such as Illinois, Indiana, Iowa, Kansas, Michigan, Nebraska, North Carolina, Ohio, Oklahoma, Tennessee and Texas, have had enabling legislation for land subdivision control which would permit the protection of street reservations by requiring the location of streets in accordance with the locality's street plan prior to the approval of land subdivision plats. One of the major means of establishing building lines has been through legislation which includes provisions for the protection of mapped streets. The following states, in addition to Pennsylvania which has been previously mentioned, are among those having such legislation:
Source Book: The best source of information on the subject, is the book entitled Building Lines and Reservations for Future Streets, by Russell V. Black, which 15 Volume VII in the Harvard City Planning Series. Although published in 1935, it is still the major source of information on this subject. The book contains chapters dealing with legislative and administrative aspects of building lines and local procedure and experience. It has a chapter dealing with court decisions, a section on eminent domain vs. the police power, a number of city and county ordinances in the appendix, an appendix on state legislation, and one containing model legislative forms. Future Planning Advisory Service Bulletins now in preparation include:
| My APA
ID or E-mail
Password Remember My ID JOIN APABecome a member and connect with thousands of people who share your dedication to building vibrant communities. Join | ||||||||||||||||||||||||||||||
