116 F.2d 543 | D.C. Cir. | 1940
The appeal is from dismissal of a complaint for cancellation of special assessments totalling $2,989.72 levied against plaintiff’s property as a result of the repaving of South Capitol Street in Washington, D. C. The principal questions for decision are: (1) whether the assessments are so disproportionate to the benefits conferred on plaintiff’s property or so inequitable in relation to assessments on neighboring properties as to be invalid under former decisions of this court;
The assessed property, known as lot 802 in square 695, has a frontage of 908.07 feet on South Capitol Street and a total area of about 660,265 square feet, or about 15 acres. A government-owned lot has been carved out of its interior, and it is otherwise somewhat irregular in
By Act of February 25, 1929, 45 Stat. 1269, 1272, Congress authorized the repaving of South Capitol Street, together with many other specific projects, and provided: “That assessments in accordance with existing law shall be made.” Pursuant to this authority, the street was repaved in October, 1929, with 8-inch concrete, replacing a granite block paving originally laid in J.903. In September, 1930, plaintiff’s lot was assessed, on the basis of linear frontage, $2,964.13 for the paving,* and $383.81 for curbing.
The pertinent provisions of the statute are:
That half the cost of paving or repaving shall be assessed against abutting property “according to the linear frontage of said property.” (Id. § 90a.)
“The maximum linear front foot assessment levied hereunder shall not exceed $3.50 per linear front foot. The total assessment levied hereunder against any abutting property shall not exceed the number of square feet of area of said property multiplied by 1 per centum of the linear front foot assessment, and shall not exceed 20 per centum of the value of the said abutting property, exclusive of improvements thereon, as assessed for the purpose of taxation at the time of the paving or repairing of the street, avenue, or road for which said assessment is levied. In computing assessments hereunder against unsubdivided land by the square foot or according to the assessed valuation, there shall be excluded from the computation laud lying back more than one hundred feet from the street, avenue, or road being improved where the depth is even; where the depth is uneven, the average depth shall be taken in computation, but not to exceed one hundred feet.” (Id. § 90d.)
“Any property owner, aggrieved by any assessment levied under sections 90a-90m of this title, may, within sixty days after service of notice of such assessment, file with the Commissioners of the District of Columbia a protest in writing against such assessment, accompanied by affidavits if he so desires, and if said commissioners find that the property of such owner so protesting is not benefited by the improvement for which said assessment is levied, or
Under this statute the old assessments were cancelled, and new assessments of $2,964.13 for paving and $88.82 for curbing were made. The aggregate of these assessments was later reduced to $2,989.-72, the amount, here involved.
Plaintiff protested to the Commissioners against the assessment, and the protest was denied after hearing, July 26, 1935. Plaintiff then began this action. The trial court found that plaintiff’s property was presumptively benefited by the improvement, that plaintiff had failed to overcome this presumption, that its property was in fact benefited, and that the assessments were not unequal or inequitable.
I.
A question of first importance is whether the statutes authorizing the improvement of South Capitol Street and the levying of the present assessments amount to a determination by Congress that plaintiff’s property is benefited at least to the extent of the assessments. Where “within the scope of its power, the legislature itself has found that the lands * * * will be specially benefited by the improvements, prior appropriate and adequate inquiry is presumed, and the finding is conclusive.”
Where the statute clearly designates the property which will or may abut the improvement and specifies the rate of assessment, it is a -legislative finding of benefit to the extent of the rate. Withnell v. Ruecking Construction Co., 1919, 249 U. S. 63, 39 S.Ct. 200, 63 L.Ed. 479. Plaintiff seems to contend that the property must be within a small area and specifically described in the statute itself, and that the rate must be expressed in specific figures. Cf. Johnson v. Rudolph, 1926, 57 App.D.C. 29, 16 F.2d 525. The controlling authorities do not sustain this contention. Designation of the property to be benefited may be in terms of an entire city or perhaps an even larger geographical unit.
One question therefore which must be determined is whether Congress has defined or designated in the statutes the district or area within which the improvements in question were to be made. We think there can be no question that it has done so. The Act of February 25, 1929, 45 Stat. 1269, 1272, authorized the repaving of specified portions of South Capitol Street, together with many other specific projects, and provided that “assessments in .accordance with existing law shall be made.” The effect of the statute was to
The definiteness and sufficiency of the Congressional designation are not affected by the fact that the “existing law” in 1929 regarding assessments, known commonly as the Borland Amendments, was replaced by the Act of February 20, 1931, 46 Stat. 1197, §§ 90a-90m, D.C.Code (Supp. V) tit. 12, §§ 90a-90m. This Act, among other things, directed the Commissioners of the District to cancel all assessments for roadway improvements completed within three years prior to the date of approval of the Act and to reassess the cost of such improvements in accordance with the provisions of the new law. The improvements in question came within the statutory direction and accordingly the assessments made under the previous statutes were can-celled, and new assessments were made upon plaintiffs property in accordance with the new law. The Act of 1931, by directing the cancellation of the assessments under the previous law and the making of new ones, adopted and carried forward into the new assessments the description of the property contained in the previously existing statutes and the assessments made thereunder. The Act of 1931 was intended primarily to make changes in the methods and amounts of the assessments, not in the identity of the property to be assessed.
Furthermore, Congress has set up a method of assessment which requires only mathematical computation for its application.
The provision for “protest” to the Commissioners does not contradict or negative the finding. It is merely a recognition that in unusual situations application of the general method of assessment may be inequitable. It is to this extent a safeguard against conclusive operation of the statute without regard to abnormal circumstances which may affect particular property. It clearly places the burden upon the owner of property assessed to show that such circumstances exist in respect to his property. That could rarely occur so as to relieve the property entirely from assessment, in view of the nature of the improvement, the fact that the property assessed is limited to abutting property and the legislative declaration that such property is benefited at least to the extent of the maximum assessment fixed by the statute. Obviously the instances in which the protest procedure would be successful would be more numerous when used to secure reduction in the assessment because of inequality than when employed to nullify it. Rarely would a situation arise in which property abutting a street improvement of this character could be found to receive no benefit whatever, although the amount of benefit might vary considerably among parcels of irregular shape and not of uniform size.
It remains to decide whether the application of the statutory method of assessment to plaintiff’s property is so arbitrary or unreasonable as to require the court to set aside the assessment and the Commissioners’ finding that it is proper, assuming that the court has such power. We agree with the Commissioners and the trial court that plaintiff has failed to prove that its property was not benefited. Plaintiff’s chief reliance seems to be on the theory that property now used largely ás a freight yard cannot be benefited by improving the pavement on which it abuts. It is argued that the old granite block pavement was adequate for the trucks which .travelled to plaintiff’s freight yard over South Capitol Street, and that therefore substitution of concrete paving conferred no benefit. We do not think that the court may “weigh the consideration” with such nicety as plaintiff requests. Cf. Louisville & N. R. R. v. Barber Asphalt Paving Co., 1905, 197 U.S. 430, 433, 25 S.Ct. 466, 49 L.Ed. 819. It is settled that railroad property may be benefited by improving a street on which it abuts even though its present use may not be facilitated.
“The plea plainly means that the improvement will not benefit the lot, because the lot is occupied for railroad purposes and will continue so to be occupied. * * That, apart from the specific use to which this land is devoted, land in a good-sized city generally will get a benefit from having the streets .about it paved, and that this benefit generally will be more than the cost, are propositions which * * * a legislature is warranted in adopting. But, if so, we are of opinion that the legislature is warranted in going one step further and saying that on the question of benefit or no benefit the land shall be considered simply in its general relations and apart from its particular use. * * * On the question of benefits the present use is simply a prognostic, and the plea a prophecy. If an occupant could not escape by professing his desire for solitude and silence, the legislature may make a similar desire fortified by structures equally ineffective. It may say that it is enough that the land could be turned to purposes for which the paving would increase its value.” 197 U.S. at pages 434, 435, 25 S.Ct. at page 467, 49 L.Ed. 819.
Present use therefore is not an exclusive or conclusive criterion of benefit. It is merely a factor to be considered, in connection with other factors including possible uses present and future, primarily to determine whether an assessment is confiscatory. This appears not only from the Supreme Court decisions but from our own. Stress is placed in argument in this respect upon Johnson v. Rudolph, 1926, 57 App.D.C. 29, 16 F.2d 525. That case involved farm lands which were assessed for paving appropriate for urban streets. But other factors were equally, if not more, important in the decision, including the irregular shapes of particular tracts when the whole was regarded as subdivided property. The decision was based upon several grounds and cannot be regarded as requiring that benefit be determined only in rélation to present actual use, without regard to other possible use present or future, increment in value of the property without reference to any specific use, and other factors. So to regard the decision would bring it squarely in conflict with the Supreme Court decisions to which we have referred and require that it be disapproved to’ that extent. But that it is not so interpreted appears clearly from Willner v. Hazen, 1940, 71 App.D.C. 373, 111 F.2d 511. In reversing an order dismissing a complaint to cancel an assessment for alley paving against abutting property as unreasonably disproportionate and greater than the benefit derived, we referred both to the fact that the assessment was 222% higher than the average assessment against other lots bounding on the alleys, and also to the provisions of the zoning law, under which “appellants cannot use their land for commercial enterprise, and it is not possible for them to recoup the excess of the assessment by changing the nature of the improvement.” We further said, “the amount of the assessment is wholly disproportionate to any use to which the lot is susceptible by reason of the improvement,” and distinguished the case on this ground from Carusi v. Hazen, 1935, 64 App.D.C. 194, 76 F.2d 444. These decisions, as well as our discussion of Rudolph v. Johnson in the
Furthermore, entirely aside from the possible future use of plaintiff’s lot, we cannot say that the property is not benefited by the improved means of transportation to and from the freight yard. Certainly we cannot overturn the findings of the Commissioners and the trial court that the property was benefited. It can make no difference that the benefit may not be reflected immediately in the market value of the land. That fact alone, if existent, would not overcome the strong statutory presumption of benefit.
The evidence shows that streets are required for access to plaintiff’s property which can withstand the heavy hauling of freight in trucks to and from the yards. The new paving is of that type, whereas the old was of granite blocks set in a sand base, laid in 1903 and designed for horse-drawn traffic. Under the impact of the heavy hauling required by motor-driven traffic, the old pavement created the necessity for constant repair and upkeep at excessive expense to the District. The net effect was that the public was supplying the plaintiff with means of ingress and egress at no cost to itself and at excessive cost to the public. On these facts, considered in connection with the statutory presumption and other evidence, the trial court’s finding of benefit, and that of the Commissioners, were adequately sustained. Plaintiff did not overcome the statutory finding or this evidence by showing that trucks had succeeded in negotiating the bumps in the old paving and that the District could keep it in passable condition by constant repairs at great expense. Nor was it sufficient to do so that real estate experts testified there was no benefit for the present railroad usage. Their testimony was based upon the fallacy which plaintiff has advanced here, that only present, actual use can be considered, and it disregarded the necessities of heavy motorized traffic, which has developed since the original paving was laid.
Plaintiff’s property is not “unequally or inequitably assessed with relation to other property abutting” the improvement. Because other lots adjacent to South Capitol Street belonged to the Government or were found to abut on another street, only one lot other than plaintiff’s was assessed for the improvement. This was a lot owned by Standard Oil Company, having a frontage of 235 feet and a depth of 351.33 feet. It is not seriously suggested that the other lots should have been assessed or that failure to assess them placed an unjust burden on plaintiff’s property. Therefore plaintiff must fail unless it can show that its assessment is inequitable as compared with that made upon the Standard Oil lot. We cannot speculate as to what inequalities might have existed had the other lots been assessable; plaintiff’s case must rest on the facts, not on speculations. In total area plaintiff’s lot is over eight times as large as the Standard Oil lot, whereas its frontage is less than four times as great. Since the assessment was according to frontage, the discrimination, if any, would seem to favor plaintiff if, as plaintiff contends, area must be considered in determining relative benefit.
But even if there were some inequalities in the respective areas of the assessed properties we could not conclude that the assessments are invalid. Plaintiff seems to think there is something inherently unconstitutional about the so-called “front foot rule.” The contrary is the law. Assessment according to frontage has been upheld repeatedly by the Supreme Court,
III.
Plaintiff suggests that the paving of South Capitol Street is a “public improvement,” not a “local improvement,” and that' therefore assessing its property is taking “private property * * * for public use without just compensation.” The contention is so patently unsound as to require no discussion. Obviously the improvement of any public street benefits the public, but it does not follow that the abutting landowner is not also specially benefited. Otherwise, no assessment against abutting property could be sustained. The language in Johnson v. Rudolph, 1926, 57 App.D.C. 29, 16 F.2d 525, relied on by plaintiff, must be considered in the light of the decision in that case, which was that
Finally, we may add that in the absence of clear showing of inequality and inequity, we have been unable to find confiscation in an assessment of less than $3,000 against property assessed for general taxation at a value in one recent"year of $660,-26S and in another of $792,318, for an improvement so obviously beneficial, if not necessary, to the extensive commercial operations conducted upon it.
We conclude that plaintiff’s property has been benefited by the improvement, that the benefit has not been shown to be less than equivalent to the assessment, and that the assessment is not unequal or inequitable, In this view we need not decide to what extent, if at all, the court may interfere to set aside conclusions of the Commissioners of the District in these respects, now that Congress has created a specific administrative remedy by “protest” to them,
The judgment of the trial court is affirmed,
Johnson v. Rudolph, 1926, 57 App.D.C. 29, 16 F.2d 525; Taliaferro v. Railway Terminal Warehouse Co., 1930, 59 App.D.C. 376, 43 F.2d 271; Dougherty v. American Security & Trust Co., 1930, 59 App.D.C. 301, 40 F.2d 813; Dougherty v. Heurich, 1930, 59 App.D.C. 303, 40 F.2d 815; Crosby v. Dodge, 1931, 60 App.D.C. 36, 46 F.2d 727; Gotwals v. Miller, 1932, 61 App.D.C. 402, 59 F.2d 1051; Willner v. Hazen, 1940, 71 App.D.C. 373, 111 F.2d 511.
Pursuant to D.C.Code (1929) tit. 12, §§ SO, 81.
Pursuant to D.C.Code (1929) tit. 12, § 70.
Chesebro v. Los Angeles County Flood Control District, 1939, 306 U.S. 459, 464, 59 S.Ct. 622, 624, 83 L.Ed. 921.
Parsons v. District of Columbia, 1898, 170 U.S. 45, 18 S.Ct. 521, 42 L.Ed. 943; French v. Barber Asphalt Paving Co.,
Houck v. Little River Drainage District, 1915, 239 U.S. 254, 262, 36 S.Ct. 58, 60 L.Ed. 266; Gast Realty & Investment Co. v. Schneider Granite Co., 1916, 240 U.S. 55, 36 S.Ct. 254, 60 L.Ed. 523; Withnell v. Ruecking Construction Co., 1919, 249 U.S. 63, 39 S.Ct. 200, 63 L.Ed. 479; Hancock v. Muskogee, 1919, 250 U. S. 454, 39 S.Ct. 528, 63 L.Ed. 1081; Valley Farms Co. v. Westchester, 1923, 261 U.S. 155, 43 S.Ct. 261, 67 L.Ed. 585; Chesebro v. Los Angeles County Flood Control District, 1939, 306 U.S. 459, 59 S.Ct. 622, 83 L.Ed. 921.
Parsons v. District of Columbia, 1898, 170 U.S. 45, 18 S.Ct. 521, 42 L.Ed. 943; French v. Barber Asphalt Paving Co., 1901, 181 U.S. 324, 21 S.Ct. 625, 45 L.Ed. 879; Wagner v. Leser, 1915, 239 U.S. 207, 36 S.Ct. 66, 60 L.Ed. 230. Cf. Louisville & N. R. R. v. Barber Asphalt Paving Co., 1905, 197 U.S. 430, 25 S.Ct. 466, 49 L.Ed. 819.
Parsons v. District of Columbia, 1898, 170 U.S. 45, 18 S.Ct. 521, 42 L.Ed. 943; Wagner v. Leser, 1915, 239 U.S. 207, 36 S.Ct. 66, 60 L.Ed. 230.
French v. Barber Asphalt Paving Co., 1901, 181 U.S. 324, 21 S.Ct. 625, 45 L.Ed. 879; Wight v. Davidson, 1901, 181 U.S. 371, 21 S.Ct. 616, 45 L.Ed. 900; Louisville & N. R. R. v. Barber Asphalt Paving Co., 1905, 197 U.S. 430, 25 S. Ct. 466, 49 L.Ed. 819; Valley Farms Co. v. Westchester, 1923, 261 U.S. 155, 43 S.Ct. 261, 67 L.Ed. 585; Chesebro v. Los Angeles County Flood Control District, 1939, 306 U.S. 459, 59 S.Ct. 622, 83 L.Ed. 921.
Parsons v. District of Coulmbia, 1898, 170 U.S. 45, 18 S.Ct. 521, 42 L.Ed. 943; and see the cases cited supra notes 7, 9.
Cf. note 9 supra, and Houck v. Little River Drainage District, 1915, 239 U. S. 254, 36 S.Ct. 58, 60 L.Ed. 266.
Louisville & N. R. R. v. Barber Asphalt Paving Co., 1905, 197 U.S. 430, 25 S.Ct. 466, 49 L.Ed. 819. Cf. Valley Farms Co. v. Westchester, 1923, 261 U.S. 155, 43 S.Ct. 261, 67 L.Ed. 585.
Cf. the cases cited supra note 1. But cf. tile opinion on petition for rehearing in Willner v. Hazen, 1940, 71 App.D.C. 373, 111 F.2d 511.
Cf. Withnell v. Ruecking Construction Co., 1919, 249 U.S. 63, 71, 72, 39 S.Ct. 200, 63 L.Ed. 479, with Crosby v. Dodge, 1931, 60 App.D.C. 36, 46 F.23 727.
This is illustrated by plaintiff’s calculation that the first maximum (1% of the front foot assessment times the, area in square feet) would have permitted an assessment of $23,109.28 in the instant case, and that the second maximum (20% of the assessed valuation) would have permitted an assessment of $158,463.60. As a matter of fact, it would appear that the first maximum never could be effective except where a lot is less than 100 feet in average depth, 100 feet being the exact point at which it loses its remedial power. This further emphasizes the conclusion that Congress means the benefit to extend primarily for 100 feet in the normal case, for only where the property is of extremely low valuation can the second maximum lower the assessment on a lot over 100 feet in average depth.
Parsons v. District of Columbia, 1898, 170 U.S. 45, 18 S.Ct. 521, 42 L.Ed. 943; French v. Barber Asphalt Paving Co., 1901, 181 U.S. 324, 21 S.Ct. 625, 45 L.Ed. 879; Gast Realty & Investment Co. v. Schneider Granite Co., 1916, 240 U.S. 55, 36 S.Ct. 254, 60 L.Ed. 523; Schneider Granite Co. v. Gast Realty & Investment Co., 1917, 245 U.S. 288, 38 S.Ct. 125, 62 L.Ed. 292; Withnell v. Ruecking Construction Co., 1919, 249 U. S. 63, 39 S.Ct. 200, 63 L.Ed. 479.
Gast Realty & Investment Co. v. Schneider Granite Co., 1916, 240 U.S. 55, 36 S.Ct. 254, 60 L.Ed. 523; Schneider Granite Co. v. Gast Realty & Investment Co., 1917, 245 U.S. 288, 38 S.Ct. 125, 62 L.Ed. 292.
Withnell v. Ruecking Construction Co., 1919, 249 U.S. 63, 72, 39 S.Ct. 200, 63 L.Ed. 479.
Gast Realty & Investment Co. v. Schneider Granite Co., 1916, 240 U.S. 55, 36 S.Ct. 254, 60 L.Ed. 523; Withnell v. Ruecking Construction Co., 1919, 249 U.S. 63, 39 S.Ct. 200, 63 L.Ed. 479.
Cited supra note 1.
