Environmentalists and advocates of private property rights historically have disagreed about the extent to which the government should mandate property owners to protect natural resources. In recent years, the courts have broadly deferred to the discretion of the political branches of government when it comes to weighing public and private interests in land use. Much of the traditional “takings” doctrine has been called into question by decisions in the Supreme Court, a trend beginning with two 1987 cases, one being Nollan v. California Coastal Commission. The effect of this case was to impose a higher burden of proof on legislators to justify regulations, signaling an increased willingness of the courts to second-guess elected officials on matters of the public interest in land use. Other related cases are First Evangelical Lutheran Church v. County of Los Angeles and Lucas v. South Carolina Coastal Council. The takings debate is largely about how the cost of protecting natural resources and the environment should be shared between landowners as a class and the public at large. A recent trend in court rulings indicates a shifting of costs from landowners to the public which is aggravated by government spending on public works and subsidies such as below-market leases and fees, depletion allowances, tax preferences and direct grants to property owners, “givings” that are seldom conditioned on how land is used. In order to remedy this problem, landowners must be provided with positive financial incentives that are clearly and unconditionally linked to the use of resources we expect of them.
Takings and Givings: Toward Common Ground on the Property Rights Issue
Edward Thompson, Jr.
Washington, DC: American Farmland Trust
January 01, 1992
Land Use Planning