PUBLIC CONTROL OVER

PRIVATE PROPERTY
CHRISTIANNE R. CUYO
• Public control over the use of private property is a very different
matter from the public taking (with “just compensation”) of private
property.

• The evolution, over several decades, of the right of government to

exercise some control over the use of privately owned property is one
of the central stories in the history of modern planning.
• Public control of the use of private property involves the imposition of
uncompensated losses on property owners.

---- Consider someone who owns a building lot in a downtown area. Market
forces such as the demand for office space and the cost of construction
create a situation in which the most profitable use for the site is a 12-storey
office building.
This principle is true whether;
• Owner would develop the site
• Sell the site to another party who would develop it.
• Or lease the site to someone else who would build on it

In the first case the owner would take the loss directly in the form of reduced
operating profits. In the latter two cases the loss would be manifest as a lower
selling price or lower rental fee for the site.
• The land-use control technique that has evolved over the years,
zoning, does exactly what is alluded to: It limits the uses to which land
can be put. If the most profitable use is not among the permitted
uses, a loss is necessarily imposed on the owner.

• However, no compensation need be paid to the owner, nor is a

judicial procedure required for the community to exercise control
and thereby impose the loss.
• This capacity to obtain the benefits of limiting an owner’s use of his or
her property without having to pay compensation clearly accounts for the
popularity of zoning.

• The community obtains partial rights of ownership—some control over

the use of the property—without having to go to the expense of
becoming an owner.

• The municipality does become the owner of the property.

Given the apparent conflict between such community powers and
constitutional guarantees regarding property rights—most particularly the
requirement for just compensation in the taking clause of the Fifth
Amendment—it is not surprising that it took many years and many court
cases to establish the zoning rights of communities.
• The legitimacy of zoning rests on the legal concept of the police power. That
perhaps misleading term refers to the right of the community to regulate
the activities of private parties to protect the interests of the public.

 Health

 Safety

 Public welfare
• Thus a law that limited the height of buildings so that they not cast
the street below into a permanent shadow might be justified as an
exercise in the police power.
• The rights of the community under the concept of the police power
and the rights of the property owner under constitutional and other
safeguards push in opposite directions. Exactly where the equilibrium
point is located is a matter to be decided by the courts.
• 1909 - the city of Los Angeles carried the idea of public control over the
private use of land further by dividing the city into a number of
commercial districts plus a residential district. In the latter, commercial
uses were permitted only as exceptions.
• The item of public welfare being protected was the interest of
residents in having an environment not subject to undue noise, dust,
and traffic. The owner sued the city, a series of appeals followed, and
the case ultimately went to the U.S. Supreme Court.
• The city that enacted what might be considered the first modern
zoning ordinance—though it left much to be desired by present
standards—was New York.
• Early 20th century - lower Manhattan was growing rapidly as a
commercial center. Steel-frame construction and the elevator were
making it practical to build to unprecedented heights of 40, 50, or
even 60 stories. In fact, at the latitude of Wall Street— then, as now,
the center of the financial district—one can walk across the island
from the East River to the Hudson River in perhaps 15 minutes.
• To add to the congestion, the city was in the process of building a
subway system, which permitted employers in the business district to
reach far out into the other boroughs for their labor forces.
• With downtown space at a premium,
builders tended to cover the entire lot and
to build without any setbacks. The result
was a building shaped like a child’s building
block set on end. Such buildings darkened
the streets below and cast shadows
several blocks long.
Midtown Manhattan zoning districts as designated in the 1916
plan. The numbers are building height limits expressed as
multiples of street width.
• Manhattan would lower the tone of the area and drive away
customers. They thus put pressure on the city government for some
sort of relief.
• Prompted by these concerns, the city in 1916 enacted a
comprehensive zoning ordinance covering all five boroughs.
• The city was divided into three districts on the basis of land use:
residential, commercial, and mixed.
• The ordinance was designed by an attorney, Edward M. Bassett, who
is generally regarded as the father of zoning in the United States.
Bassett designed it in such a way as to ground every facet in some
matter of public health, safety, or welfare.
• The point that a municipality could impose an uncompensated loss
upon a property owner through the mechanism of land-use controls
was now firmly established. In effect, the court had ruled that such a
loss need not constitute a taking of property, for a taking of property
would require compensation as in the taking clause of the Fifth
Amendment quoted earlier.
The 42nd Street facade of Grand Central Station, part of what
was saved by the Penn Central decision.
• Those on the political right will generally take the view that
government’s ability to regulate should be sharply limited, for the
relative sanctity of the rights of private property is a fundamental part
of the right-wing political position.

• By contrast, those on the political left are far more likely to place less
value of the rights of private property and thus to favor greater public
regulation. As the United States moved to the right politically toward
the end of the twentieth century, what came to be called the
property rights movement became more powerful.
• November 2000 - the voters passed Measure 7. This referendum, backed
by a property rights organization called Oregonians in Action, required
governments to “compensate landowners for loss of value resulting from
government actions that restrict or curtail the use of their property.”
Opponents argued that converting almost any restriction on land use
into a taking would impose a huge financial burden on both the state and
the local governments.
• The measure does exclude from compensation regulations pertaining
to public health, compliance with building codes, and some other
matters. But it potentially makes almost any other kind of regulation
that imposes a loss on a property owner a taking and thus subject to
compensation. Further, the measure is retroactive to the time that
the property owner acquired the property.
THE RIGHTS OF
NONRESIDENTS
• Since the early 1960s - it has been understood and acknowledged by
the courts that there are instances where nonresidents and people
who do not own property within a municipality may have legal
standing to bring suit against a municipality’s land-use controls.

• Generally such suits have been brought against suburban

communities over the matter of land-use controls that, in the view of
the plaintiffs, unnecessarily restrict the types of development
permitted (hence the term restrictive zoning).
• Probably the best-known case involving the rights of outsiders is that of
Southern Burlington NAACP v. Mt. Laurel (NJ). In 1975 the Supreme
Court of New Jersey found that the town’s zoning ordinance excluded
entire classes of people including minorities and was invalid under the
New Jersey Constitution. It ordered the town to prepare a new
ordinance.
• The RCA process by which a municipality could deal with
its affordable-housing requirements seemed fine to some
people but displeased others greatly. What you think of
the RCA approach may depend on how you define the
problem.
• State Senator Dana L. Redd stated:

“This isn’t just an issue of reducing overcrowding in our cities; it’s

also about making sure that growth is fair and balanced. Towns that
are able to sustain growth, should make sure that they are willing to
welcome new residents from all walks of life. Household income is
not an indicator of a family’s worth, and it’s time a number of our
higher income, suburban municipalities took notice of that fact.”
 THE FIGHT OVER EMINENT DOMAIN
• It has long been accepted that government can take
property, with just compensation, for public purposes. If
governments could not do this, a single intransigent
property owner could permanently block the building of
a road, the assemblage of land for a park, the building of
a school, and the like. But within this overall
understanding there is much room for what the term
public purpose means.
• The Urban Renewal program, which got under way shortly
after passage of the Housing Act of 1949, used eminent
domain in a new way.

• The private-party-to-private-party transfer occasioned much

resentment. In time a property owner went to court to prevent
an urban renewal agency from taking his or her property for
this purpose.