Land Use Institute Hosts Scholar Joseph L. Sax
March 12, 2009
Noted land use scholar Joseph Sax spoke at VLS on the fairness of current land use law on February 5, 2009.
Fairness still seems to elude the American justice system in the realm of property regulation, Sax said, and many cases tend to “nag at our sense of justice.” Using a hypothetical situation drawn largely from Agins v. Tiburon (1980), Sax explained that to a large extent, land use laws and property regulations often place burdens on individual property owners while the public reap the rewards. In the Agins-like case, a property owner who had purchased five acres of land in the 1960s in a relatively undeveloped town outside of San Francisco found himself facing regulations a decade later limiting his ability to develop the land in an effort to maintain open space.
That open space, Sax said, can be called an “ambient resource,” much like air or water. And similar to the latter, the benefits of the open space created by these regulations are enjoyed by the public. However, the expense of abiding by such laws is often borne largely by the land owner.
Further muddying the situation, Sax said, is the fact that such regulations are often only adopted and put in place after a problem already exists. In the Agins situation, many Tiburon land owners had developed their plots to such an extent that the town was forced into a situation to regulate in order to preserve what little open land remained. This system—creating legislation and regulations once a situation has reached a critical point—is inherently unfair to some while beneficial to those who have created the problem.
“The system itself assures that the social cost of dealing with issues like the loss of bio diversity, or open-space congestion and the like, are not equitably apportioned among those who cause the problem,” Sax said. It is “unlike a nuisance, for example, where he who causes the problem has to fix it."
Ultimately, Sax concluded, we must strive to at least recognize instances in land use cases in which this inequitable dispersal of costs and responsibilities exist and seek to remedy the situation.
“After nearly three decades struggling with the problem, the U.S. Supreme Court seems finally to have given up the effort to formulate workable rules for regulatory takings,” Sax said. “The theoretical battle appears to be over, at least for the present, with no winners. But there are losers, landowners who are clearly victims of inequity, if not of constitutional wrongs.”
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