Development Rights Transfer: Easing the Police-Power—Eminent-Domain Deadlock

Abstract

The current is running so swiftly in land-use affairs today that choosing a title for an essay on the problems in this turbulent field is perilous, a risk reflected in this essay's reference to the “police-power-eminent-domain deadlock.” Adherents of two trends that recently have attracted national attelltion might well dismiss an inquiry, so styled, as sterile, a throwback to misconceptions of the recent past. The first trend, fueled by the 1973 Council on Environmental Quality publication, The Taking Issue, urges that, short of actual appropriation, public measures that restrict private land use can never constitute a taking. The “deadlock” vanishes, of course, if constitutional notions of compensation as a constraint upon government regulation can be so easily defused. The second, a product of Bernard Siegan's provocative studies in Houston and his dalliance with University of Chicago economics, largely moots the issue by substituting the marketplace for public regulation as the source of land-development controls. With government essentially removed from the land-use picture, defining the proper ambit of uncompensated regulation becomes an intellectual exercise for misguided academics.