Property Rights and Land Use Controls: Balancing Private and Public Interests
Cordes, Mark W.
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Among the many competing interests in the field of land use controls, there is perhaps none more fundamental than the potential conflict between the rights of private property owners and the rights of the more general public. Indeed, at bottom land use controls can be viewed as limitations on the rights of private property owners in order to advance broader social concerns. Thus, though it is important to give attention to the variety of interest group conflicts in the land use field, any serious effort at "building cooperation across communities" must pay particular attention to the relationship of private and public rights. This article will examine the issue of the balance between private and public interests in land from three perspectives. Part I will first examine what the current balance is as reflected in federal constitutional protection of property rights under the Takings Clause. Part II will then discuss five principles of property jurisprudence that should inform any discussion of the public/private balance in use of privately-owned land. Finally, Part III will discuss whether the current balance of private and public interests is a reasonable one and whether fairness requires compensation when land use restrictions cause a substantial diminution in value of the regulated property.