Flashback – From The Harvester, January 1975

      “… Nor shall private property be taken …”

There are few subjects fraught with more emotion and less understood than the rights of private property and the constitutional limits to public control of those rights. It is a highly charged emotional issue and is a serious matter of national concern as evidenced by current debate over land-use legislation in the Congress and state legislatures throughout the country.

As the regulation of land use becomes an increasingly important component of programs for enhancing environmental quality, the constitutional parameters within which land-use regulation must operate become increasingly important.

Currently the Environmental Protection Agency has direct or indirect responsibility for land use already laid down by Congress and the court. The EPA is currently circulating, for preliminary comment, a draft of a Land-Use Policy Statement to draw review and comment outside the capital agency to develop an approach to land-use consideration that will take into account the broad public interest involved.

Now although land-use regulations can raise issues under a variety of constitutional clauses, most concern focuses on the clause of the Fifth Amendment to the U.S. Constitution that poses by far the most significant restraint on the regulation of land use. This clause is called the taking clause: “… nor shall private property be taken for public use without just compensation.”

The draft of the land-use policy statement being circulated by the EPA contains some areas of concern. One of the primary concerns is that the policy emphasizes the protection of the environment without due regard for inclusion of man-made facilities.

The National Environmental Development Association has made several suggestions that might be made to improve the draft. NEDA’s suggestions are aimed primarily at giving priority to the need to support mankind while protecting the environment.

For example, the draft of the land-use policy statement says in part, “It (sound land-use planning) should insure that desirable growth is planned and managed in a manner that will minimize adverse impacts on the environment.” NEDA feels this must be expanded upon again. For example:
“… on the environment, which includes man-made facilities necessary to support adequately a larger population, and under conditions wherein natural resources must yield to the maintenance, replacement and operation of existing facilities, and also provide greater export capability in exchange for critical metals and other minerals wherein supply is regulated.”

The EPA also says in its draft that it will encourage support of local, state and federal programs to protect pristine environments and areas of critical environmental concern (such as wetlands, flood plains and aquifers) from unacceptable environmental degradation. Though the EPA’s protection of critical areas may be laudable, it is equally important that the EPA statement be written in a realistic rather than a sophomoric manner. Therefore, FFVA and NEDA feel that an addition be added to that paragraph that includes the following: “… while giving priority to the need to support mankind.”

FFVA is a member of NEDA. FFVA’s general manager, Joffre C. David, serves on NEDA’s board of directors.

It is further felt that the issuance of such a policy statement by the EPA such as that proposed would give further aid to limit any land-use legislation that may be proposed. This is why such care should be given to the wording in the Land-Use Policy Statement that EPA will publish in the coming weeks in the Federal Register.

The right to make money by buying and selling land is as old as our nation and one that cannot lightly be ignored. But in this increasingly crowded and polluted environment, we may not be able to afford to continue circulating the myth that tells us that the taking clause protects our right of unrestricted use regardless of its impact on society. Yet, we must not let the concern for environment blind us to the fact that regulations have real economic impact on real people; and we must search for solutions that will take their interests into account.

There is no easy solution to land use. Any solution to the “taking” of land or the control of the use of such land must include the fusing of several interconnected elements. Any solution must make economic sense; it must have political acceptability, avoid harmful side effects and allow efficient administration. These are just a few of the links in the chain toward developing a solution.

The taking issue is the weak link in this chain. Throughout the country, attempts to solve environmental problems through land-use regulation are threatened by the fear that it will be challenged in court as an unconstitutional taking of property without just compensation. Yet, strict land-use regulation may be needed in those sections of our country facing developmental pressure. Regulations may be needed to preserve and direct growth. The challenge, therefore, is to find an equitable balance between regulation and taking. Several areas sure to present problems in the coming months include wetlands protection and historical preservation.

Later this month a seminar will be held in Tallahassee titled, “The Constitutional and Legal Limits to the Regulation of Private Land.” The seminar will be held in the House Chambers Jan. 23-24, 1975, and will be sponsored by the House Natural Resources Committee under the direction of the Florida Legislature. FFVA members will be represented at this seminar, and a report will be made to the members concerning the identification of specific issues and problems and ways with which to deal with them.

Comments are closed.