The Public/Private Balance in Land Use Regulation

The topic of the balance between public and private interests in land is one of growing importance and increasing controversy. The environmental movement of the last three decades has generated significant and varied government regulation, much of it placing restrictions on the use of privately owned land. In turn, the past few years have seen a growing property rights movement, largely in response to such regulation. The interplay between private and public interests affects all types of land ownership and property uses, but is perhaps most pronounced with regard to environmentally sensitive land. Effective protection of such property often requires that it be left in its natural state, thus minimizing development opportunities. This raises an increasingly critical question in our society: what rights do private property owners have in privately owned land and what rights should the public have in the same resource. In addressing this topic this article will do three things. Part One will first present a thumbnail sketch of the current balance of public and private rights as reflected in constitutional law, commonly known as the “takings” issue. This balance leans heavily towards the private side concerning the right to possess property and exclude others, as well as protecting against state interference with current uses. Part Two will then present what I consider to be the big picture rationale for striking the balance in this way, which is that property is a social construct designed to serve social as well as individual purposes. As such, private property rights have always been viewed as being subject to broader public interests, and private interests must end when they inflict harm on the broader public. Finally, Part Three will discuss whether recognizing a strong public or social interest in privately owned land is fundamentally unfair to private landowners, especially when the effect is to substantially lower property values.