Balancing Private Property
Rights and the Public
Interest
Rebecca Roberts
Property rights issue
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Societal goals are sometimes pursued
through government restrictions on
the use of private property.
Political momentum
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Increasing government regulation of private
property.
Supreme Court protections for private
property are tightening.
Strong cultural meaning founded in American
concepts of freedom, liberty and citizenship.
Property rights movement
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Supporters:
– Seek to reduce government regulation of
land
Landowners
 Industries with direct economic interest
 Conservatives, libertarians and other related
political platforms

Property rights movement
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Opponents:
– Recognize societal benefit of government
ability to regulate private property use
Environmentalists
 State and local government
 Planners, preservationists, scientists
 Civil rights, public health, etc.

Legal basis
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Takings Clause of the U.S. Constitution
provides legal basis for land laws.
Public policies that affect property rights are
created locally.
Court decisions outline principles for
balancing public and private interests in land.
5th Amendment

“…nor shall private property be taken
for public use without just
compensation.”
– 5th Amendment, U.S. Constitution, (1791)

Reiterated in Wisconsin Constitution
5th Amendment
Recognizes:
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Private property ownership
Eminent domain
“Takings”
Requirement for just compensation
Real property ownership
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Real property
– Physical land, improvements, vegetation,
subsurface minerals, water rights
Real property ownership

Fee simple absolute
Fee simple interest in
real property is threedimensional, extending
within the bounds of
the parcel perimeter
upward and downward,
and indefinitely into the
future
Real property ownership

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Land ownership has been described
as a “bundle of divisible rights”
Owner may divide fee simple:
1. Physical partition
2. Usage rights
3. Time
Real property ownership

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Green sticks = right to make profitable
or pleasurable use of land
Red sticks = duties of real property
ownership
– Nuisance
– Property taxation
– Public regulation
Real property ownership

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Society creates and defines property rights.
Social, technological economic and political
changes constantly “redefine” property rights.
– Slavery
– Civil rights
– Airplanes
Eminent domain
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Eminent domain = state and local
governments have authority to acquire
private property for public use.
Takings

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Taking = an unconstitutional
government appropriation of private
property rights.
Each of the notable takings cases has
a lesson.
Evolution of takings law
3 types of takings claims:
1. Physical invasions
2. Compelled dedications
3. Regulatory measures
Physical invasions

Physical occupation by a governmental
unit or the public is a taking per se,
even if the occupation is temporary or
minimal.
– Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419 (1982)
Required dedications

“Essential nexus” test = exactions or
conditions on development must be
related to policy objectives and project
impacts.
– Nollan v. California Coastal Commission, 483 U.S.
825 (1987)
Required dedications
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“Rough proportionality” test = exactions
or conditions on development must be
proportional to the particular harm
posed by the development.
– Dolan v. City of Tigard, 512 U.S. 374 (1994)
Regulatory takings
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Regulations may cause a taking even if
there is no physical invasion.
– Pennsylvania Coal Company v. Mahon, 260 U.S.
393 (1922)
“… while property may be regulated to a certain
extent, if regulation goes too far it will be
recognized as a taking.”
– Justice Oliver Wendell Holmes
Regulatory takings
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“Influential factors” for compensable
and non-compensable takings:
1. Economic impact
2. Reasonable investment-backed expectation
3. Character of government action
– Penn Central Transportation Company v. New York
City, 438 U.S. 104 (1978)
Regulatory takings
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Regulatory takings are based on
consideration of the parcel-as-a-whole.
– Concrete Pipe v. Construction Laborers Pension
Trust, 508 U.S. 602 (1993)
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In contrast: Physical invasions need only
consider affected portion of property
Regulatory takings
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Owner must be denied all, or nearly all
reasonable economic use of a property
for a taking to occur.
– Penn Central Transportation Company v. New
York City, 438 U.S. 104 (1978)
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When regulation removes all economic
value from a property, it is a taking per
se.
– Lucas v. South Carolina, 505 U.S. 1003 (1992)
Regulatory takings
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Reasonable, investment-backed
expectations established prior to
regulation are protected.
– Penn Central Transportation Company v. New
York City, 438 U.S. 104 (1978)
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Limitations on landowner title at time
of purchase do not result in taking.
– Lucas v. South Carolina, 505 U.S. 1003 (1992)
Regulatory takings
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Average reciprocity of advantage = if
an owner benefits from a regulation
then his/her diminished property value
will less likely be viewed as a taking.
Takings vs. givings?
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“Givings” = benefits of public
regulatory policies, planning decisions
and investments.
– Unequally distributed
– Taxes/exactions may not recoup givings
Balancing opportunities
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Planning
– Involve public and private interests in the
planning process
– Provide opportunities for education and
meaningful involvement
– Engage community in dialogue about
balancing private and public interests
Balancing opportunities
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Policy formulation
– Match policy to public purpose
– Analyze impact of various policy scenarios
on public and private interests
– Involve public in selecting alternative
Balancing opportunities
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Implementation
– Base regulation on quantifiable measures
– Explain rationale for regulation
– Illustrate provisions of regulation with
graphics and easy-to-understand
language
– Provide opportunities for education
Balancing opportunities
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Review existing regulations
– Review common property rights issues
– Explore flexible alternatives to regulation
(ex. incentives, education, performance
standards, etc.)
– Provide opportunity for appeal
Conclusions
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Private property is a flexible and socially
defined concept.
Limitations on individual land interests often
result in benefit to society as a whole.
Where private limitations go too far they
must be compensated.
Community planning is one approach to
balance private and community interests.
Thank you!
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Any questions?