Eric T. Freyfogle (University of Illinois College of Law) has posted Property's Functions and the Right to Develop (ON PRIVATE PROPERTY: FINDING COMMON GROUND ON THE OWNERSHIP OF LAND, Beacon Press, 2007) on SSRN. Here is the abstract:
At stake in most contemporary land-use disputes, particularly those involving regulatory takings, is the legal right of land owners to develop or otherwise alter their lands in significant ways. Landowners claim that they possess or should possess this power, while lawmakers conclude that a curtailment of rights would serve the public interest. For various reasons we've had troubles seeing this conflict clearly. What development rights should landowners possess, and what powers should government have to curtail or redefine them? To address these questions we need to see that private property is basically a tool that society uses to promote the common welfare; it is a social institution in which private owners call upon government (including police, courts, and even prisons) to curtail the activities of nonowners. To decide what development options owners ought to possess, given this moral complexity, we need to consider how a sound system of private property can in practice promote the common good.
This essay, drawn from a new book on private property, probes the three basic functions of private land ownership with particular regard for development rights. It also probes how increases in the development value of land are due not to labor expended by owners but to the activities of surrounding landowners as a community. This background sets the stage for answering the central question of development rights. A key conclusion is that, while landowners need and deserve substantial protection from interference with on-going activities, there is much less need to protect their hopes of initiating new land uses in the future. What landowners need most is not some protection against future laws limiting development but instead an assurance that such laws will apply widely to all similarly situated landowners.
