LONG before the first zoning regulation specifying house-lot
size, governments put restrictions on what citizens could do with
their own land. So-called "nuisance" ordinances, which forbid
land uses that would damage or threaten neighbors' interests, hark
back to English common law.
The influx of environmental laws in the United States over the
past two decades has put private property under a whole new set of
restrictions. A recent example of these constraints involves
Killington Ltd., Vermont's largest ski-resort operator. On Aug. 27,
Killington sued the state, charging that it effectively confiscated
part of the company's land holdings when it designated 1,600 acres
as critical bear habitat. The company also sued the town of Mendon,
Vt., whose zoning law bans commercial development at altitudes
above 2,500 feet.
Such cases raise a question: When does government regulation
cross an ill-defined line and become a "taking" of private
property? If a taking can be proved, the US Constitution's Fifth
Amendment requires compensation for the owner.
Last year, the US Supreme Court ruled on a South Carolina case
involving a landowner's contention that a state regulation
restricting beach-front building had deprived him of any economic
gain from his property and, thus, had effectively "taken" it. The
state courts had ruled that the owner was not entitled to
compensation. The high court, however, was sympathetic to the
plaintiff's argument and ordered the case back to the lower courts
for reconsideration of his claim.
The Supreme Court majority held that in a case like this, where
all economic use of a piece of land is prohibited, compensation is
required - unless the proposed use of the land would create a
nuisance in the common-law sense of the term. This summer, in an
out-of-court settlement, South Carolina paid the landowner, David
Lucas, $1.5 million to buy his property.
In an ironic footnote to that case, the state decided to sell
the land to make up for its outlay to Mr. Lucas.
The Lucas case underscored the difficulty of determining just
when a taking has occurred. The Supreme Court has acknowledged the
possibility of a "regulatory taking" - when state regulatory
action so deprives an owner of economic use that it amounts to
confiscation. But it hasn't defined just when this condition
exists. Instead, the court has emphasized that the question must be
decided on a case-by-case basis.
The number of such cases is increasing, according to Jerold
Kayden, a senior fellow with the Lincoln Institute of Land Policy
in Cambridge, Mass. A central factor, he points out, is whether
owners have been deprived of all economic use of their land or just
some of it. This issue is central to the Killington case.
Supporters of Vermont's regulations, Mr. Kayden says, argue that
the company could get some return on its investment by renting
campsites, for example. But "that kind of argument," he says,
"drives property owners absolutely ballistic."
Frank Urso is an attorney for Killington. He says the ski
operator's 10-year battle to get approval for such limited uses as
selective logging and construction of a snow-making pond made it
clear that the state's purpose was to ban all use and preserve an
untouched bear habitat. …