Land Use: Instant Pall

Until Tuesday the United States had two rock-ribbed legal traditions regarding property rights. One, going back nearly 200 years, was that if a government took a person’s property--for a highway, for instance--the government had to compensate the owner at a fair price. The second was that government could use its police powers to restrict property use in certain ways for the public benefit without having to compensate the owner for potential economic losses.

For example, cities routinely prohibit citizens from raising livestock in their backyards or from running businesses in residential areas. The U.S. Supreme Court has ruled that it may be appropriate for a city to zone property so that a developer can build only one house for every acre, or two acres or five acres. What of the developer who bought the land with the idea of building 10 houses and discovered that the zoners were saying he could build only one? Too bad. The developer could go to court to try to have the zoning law overturned, but, short of total deprivation of use of the property, he could not get compensation for the potential loss of income from the other nine houses even if he ultimately won the case.

Now, however, there is a somewhat different standard. In a case arising in Glendale, the U.S. Supreme Court said Tuesday that, in certain egregious instances, landowners could seek damages from government for compensation for land-use restrictions that produced an undue burden on the owner’s use of his property. In legal lingo this would amount to a “taking” of the property similar to condemnation. The problem is that the court did not define just what constitutes an “undue burden.”

The 6-3 decision seems to have cast an instant pall over state and local land-use controls at a time when such controls are critical to the orderly development and protection of the environment. In fact, the effect may not be as extreme as some fear. It is important, however, that the ruling be more clearly defined soon. Otherwise, planning agencies may be paralyzed by the fear of facing huge monetary judgments for enacting zoning regulations that are both reasonable and necessary.