Land Use and the Courts

Abstract

As these quotations indicate, great minds differ over the appropriate balance between private property rights on one side and the public interest on the other. The success of zoning and other public regulations of land use in balancing these competing interests ultimately rests in the hands of the courts that must rule in individual challenges whether a particular measure is “constitutional.” That task has yielded hundreds of reported decisions by higher courts reviewing individual challenges to land use regulations “in tedious and minute detail” (as the Supreme Court predicted in Euclid). And as land use law has evolved beyond Euclidean zoning to embrace such topics as environmental regulations, floodplains, wetlands, historic preservation, and metropolitan housing needs, the courts have been called upon to consider the validity of these measures as well. In the process, some judges have displayed a genuine interest in understanding the science, economics, and geography that underlie virtually all land use legal issues. Others have applied boiler plate rubrics like “reasonableness” as a litmus test of constitutionality. Either way, state and federal courts have issued myriad opinions that make up the judicial corpus of land use law in the United States.

The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking.

Oliver Wendell Holmes Jr., Majority Opinion in Mahon Decision, 1922

Restriction imposed to protect the public health, safety, or morals from dangers threatened is not a taking.

Louis Brandeis, Dissent in Mahon Decision, 1922