The Land Use Planning Impacts of Moving Partial Takings from Political Theory to Legal Reality
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2004 R. Marlin Smith Student Writing Competition
Award Winner*
The Land Use Planning Impacts of
Moving Partial Takings from Political
Theory to Legal Reality
George Charles Homsy**
I. Introduction and Background of Takings
REGULATIONS, BY THEIR VERY NATURE, are unfair to those who are
regulated. Governments often force groups of people such as devel-
opers, property owners, or factory operators to make provisions that
protect the health, safety, and welfare of society as a whole. Since its
creation, the U.S. Constitution has imposed some limits on the power
of government to regulate. The Takings Clause of the Fifth Amend-
ment has become the limiting source for most land use planning reg-
ulations, and its interpretation and re-interpretation continues to impact
the profession.
The Takings Clause provides that private property [shall not] be
taken for public use, without just compensation.' Throughout most of
its history, the clause was interpreted as applying only to physical tak-
ings, such as the seizure of land for a fort, road, or school. In 1922 that
changed. In Pennsylvania Coal v. Mahon, Justice Oliver Wendell
Holmes, Jr., writing for the Supreme Court, opened the door to com-
pensation for takings caused by government regulation of private prop-
erty.2 Ironically, the ruling came just after the 1920 census, which
showed for the first time that more Americans lived in cities than on
farms.3 Conflicts between people and property were bound to occur in
*The R. Marlin Smith Student Writing Competition is sponsored by the Planning
and Law Division of the American Planning Association.
**The author is a recent graduate of the Cornell University master's program in
regional planning. He is currently a planner with Saratoga Associates in Saratoga
Springs, New York. The author would like to thank his advisor, Associate Professor
Mildred Warner of Cornell University, who not only kept the research on track, but
also energized his efforts. He would also like to thank Professor Richard Booth, a
member of his committee, whose land-use expertise and lawyer's eye for detail dra-
matically improved the work.
1. U.S. CONST. amend. V.
2. Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922).
3. U.S. Census Bureau, Statistical Abstract Table HS-2: Population Characteristics:](ViewImageLocal?handle=hein.journals/urban37&div=17&collection=&method=preview&ext=.png&size=3)
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The Land Use Planning Impacts of Moving Partial Takings from Political Theory to Legal Reality
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