Reconciling Sustainability with Private Property Rights in Planning Law and Policy: A Review of Takings International, by Rachelle Alterman

There are important and fundamental differences between the concept of as shorthand for natural resources--that is, as raw mineral, chemical, water, and biotic inputs used for the production of material goods (e.g., food, fiber, minerals, energy), and as shorthand for nature--that is, as the life support system upon which we all depend (e.g., clean air, clean water, functioning ecosystems). I come back to the implications of this distinction, and especially the latter conceptualization, in my conclusion to this review. For now, it is important to recognize that there exists in any market-oriented society an inescapable tension between the material benefits that individuals obtain from private property ownership, on the one hand, and the social consequences of an individual's use of his or her land, on the other. The relationships between markets, the statehouse, individuals, private property, the public, and resources are, of course, inextricable. Land markets require an array of governmental actions in order to function. These include the establishment of rules of behavior that frame private and expectations, state action to secure property rights, and the state provision of forums for resolving disputes. The state, in turn, relies on revenues taxed from land resources and market transactions to pay for the officials, places, and other institutional arrangements it provides and, more controversially, to engage in some redistribution of wealth (for whatever philosophical reason). Moreover, from the perspective of land as natural resource, the state has an interest in establishing arrangements that allow private entrepreneurs to use their lands in economically efficient and productive ways, particularly in modern-day capitalist economies. Facilitating economic production facilitates the flourishing of ambitious and talented individuals, encourages the rising tide that will (theoretically) lift all boats, and generates the revenues that the state itself needs to function. But the state, particularly in the form of individual state officials, also faces the persistent temptation to take land from its owner--or to capture the wealth that the land produces--and to incorporate both or either into state coffers. State officials may seek to capture this wealth to enrich themselves personally or, more benignly, to enhance the state in some way, or to advance more ideological goals such as the promotion of social equity or even egalitarianism. Legal systems around the globe have institutional protections in place against the abusive taxation of wealth generated by privately owned land and the abusive direct expropriation or compulsory purchase of that land by the state. For example, in the United States of America (hereafter the U.S.), private land may be expropriated only for some valid public use, and the state must provide just compensation to the property owner from whom the land was taken. (1) This protection speaks to the conventional meaning of a taking, and while the mechanics of defining and institutionalizing this principle may vary somewhat across states, the need for the principle itself is widely acknowledged and, to that extent, unremarkable. But what about regulations that, short of completely depriving a landowner of his or her property, have the effect of severely diminishing a landowner's ability to use that property in ways that allow for the production of wealth, or that effectively compel the owner to somehow transfer use of the property into the domain? Countries everywhere, when they adopt land use regulations for a variety of purposes such as environmental and related sustainability purposes, affect private property values. When those regulations result in a reduction in property value, property owners often expect to be compensated for that lost value--more or less, depending on the legal system. Courts (and legislatures) are sometimes sympathetic to these property owners. …