Joseph L. Sax, Land Use Regulation: Time to Think about Fairness, 50 Nat. Resources J. 455 (2010)
After nearly three decades struggling with the problem, the U.S. Supreme Court may finally have given up the effort to formulate clear doctrinal lines to identify regulatory takings. The theoretical battle appears to be over, at least for the present, with no winners. There are definitely losers though-landowners who are victims of inequity, if not of constitutional wrongs. Why are we in this situation? Because it is an inescapable product of the land use system we have created. To promote unconstrained private initiative by landowners, we allow owners to consume limited ambient resources like open space and habitat in a version of a prior appropriation system so that nothing is left to later-developing landowners when the limits of acceptable use are finally acknowledged through late-stage regulation. We have thus created a system of winners and losers, burdening a few with obligations that should in fairness have been more equitably apportioned. We can and should do something about it as an alternative to constitutional litigation.