T is for Takings

June 22nd, 2007

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No person shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."
-- The Constitution of the United States, Amendments, Article V

State and local governments have long been empowered to acquire private property for public purposes so long as compensation is paid. However, in the 1920s, cities and towns began using land subdivision controls to require the "dedication" (giving) of streets to the public -- without compensation -- when land was subdivided.

Courts uniformly found no "taking" requiring compensation in such situations. They pointed out that there was no public coercion since it was the landowner who initiated the request to subdivide. They also stressed that the dedication involved only a portion of a landowner's property and did not deprive the owner of substantially all its value. This rationale was followed in the 1930s to uphold subdivision requirements for the dedication of parkland.

The courts also upheld a broad array of land use regulations designed to protect public health and safety. While these regulations did not involve the direct public use of private property, they did have significant impacts by limiting the extent and density of development -- and precluding potentially more lucrative land uses. Among the early restrictions upheld by the Supreme Court: building height limits; bans on locating certain uses in or near residential areas; and building setback lines. Most notably, the Court upheld comprehensive zoning -- laying the way for the explosive growth in local zoning across the country. Euclid v. Ambler (1926). ...

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