American landowners at the time of the Constitution are said
to have been free to put their land to any noninjurious use,
constrained in their choices only by the law of nuisance.
* * * [But t]he conventional history of land use law in the
founding era is erroneous, and  the expansive reading of
the Takings Clause derived from it, the so-called regulatory
takings doctrine, is misconceived. American legislatures extensively
regulated land use between the time America won its independence
and the adoption of the property-protecting measures of the
Constitution and the Bill of Rights. * * * [T]his history
is essential if the court intends to interpret the Takings
Clause in accordance with its original meaning, or to give
its original meaning any weight whatsoever.
John Hart, Land Use Law In The Early Republic And The
Original Meaning Of The Takings Clause, 94 Nw. L. Rev.
The original understanding of the Takings Clause of the Fifth
Amendment was clear on two points. The clause required compensation
when the federal government physically took private property,
but not when government regulations limited the ways in which
property could be used. * * * In fashioning modern takings
jurisprudence, the Supreme Court has essentially ignored the
original understanding of the Takings Clause.
William Michael Treanor, The Original Understanding of
the Takings Clause and the Political Process, 95 Colum.
L. Rev. 782, 782, 803 (1995)
"[T]houghts of compensation are * * * simply out of place
in most instances, if not quite all, of regulatory restrictions
of land use. American constitutional democracy's disposition
from the beginning has been to treat the bulk of these events
as belonging to the normal give and take of a progressive,
dynamic, democratic society. Regulation stands, in our public
law, as an ordinary part of the back-ground of risk and opportunity,
against which we all take our chances in our roles as investors
Frank I. Michelman, The Common Law Baseline and Restitution
for the Lost Commons: A Reply to Professor Epstein, 64
U. Chi. L. Rev. 57, 69 (1997).
"[A]ll property in this country is held under the implied
obligation that the owner's use of it shall not be injurious
to the community."
Mugler v. Kansas, 123 U.S. 623, 665 (1887)
"The fact that tangible property is also visible tends to
give rigidity to our conception of our rights in it that we
do not attach to others less concretely clothed. But the notion
that the former are exempt from the legislative modification
required from time to time in civilized life is contradicted
not only by the doctrine of eminent domain, under which what
is taken is paid for, but by that of the police power in its
proper sense, under which property rights may be cut down,
and to that extent taken, without pay. Under the police power
the right to erect buildings in a certain quarter of a city
may be limited to from eighty to one hundred feet. Safe pillars
may be required in coal mines. Billboards in cities may be
regulated. Watersheds in the country may be kept clear. These
cases are enough to establish that a public exigency will
justify the legislature in restricting property rights in
land to a certain extent without compensation."
Justice Oliver Wendell Holmes, author of Pennsylvania
Coal v. Mahon (1922), in Block v. Hirsh, 256 U.S. 135,
155 (1921) (citations omitted).
"As a crass unrepentant capitalist real estate Republican
type, I am certainly all for property rights. But who is talking
about property responsibilities? This surreal concept that
the right to own real estate somehow exempts one from having
to balance rights with responsibilities, this Larry Flint
attitude of "I can do what the hell I please and the rest
of you be damned" is not only alien to 300 years of American
political history, antithetical to how the west was developed,
and the most blatant renunciation of fiscal responsibility
today, but it is the ultimate gimmick to pass on bankrupt
cities to our kids 20 years from now. * * * The so-called
"property rights" movement is the singularly most misguided,
historically inaccurate, fiscally irresponsible political
movement of the last half century."
Donovan D. Rypkema, Economic Development Consultant, in a
June 13, 2001 Speech on "Property Rights and Public Values"
at the National Building Museum, Washington, D.C.
In reaching this conclusion [to uphold a temporary planning
moratorium designed to protect Lake Tahoe], we preserve the
ability of local governments to do what they have done for
many years to engage in orderly, reasonable land-use planning
through a considered and deliberative process. To do otherwise
would turn the Takings Clause into a weapon to be used indiscriminately
to penalize local communities for attempting to protect the
Tahoe-Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency
216 F.3d 764, 782 (9th Cir. 2000)
CERT. GRANTED (June 29, 2001)
We must not forget that the community also has rights, and
that the happiness and well-being of every citizen depends
on their faithful preservation.
Charles River Bridge v. Warren Bridge
United States Supreme Court, 1837