Public Control of Land Use in the United States

Abstract

Social control over the use of land is not new nor untried in America. It lies in the sovereign power of the state itself. Take, for instance, a clause in the Wisconsin state constitution framed in 1848 by men grown up in the atmosphere of Jeffersonian democracy and the freedom of the frontier, people of the state in their right of sovereignty are declared to possess the ultimate property in and to all lands within the jurisdiction of the state. (Art. 9, Sect. 3.) Through eminent domain, the authority to tax and the police power the state exercises the rights of sovereignty. The right exists; the real question is whether the people are willing to make use of these powers and how far it is wise and reasonable to do so. Courts will generally test the constitutionality of such controls on the basis of reasonableness. Public control over land use takes three forms: (1) direct administration of lands in public ownership, (2) regulations or control induced by or incident to subsidies paid to private owners, (3) public regulation of privately owned land through the police power.' This paper will exclude the first because it is always within the power of a public land owner to do with the land as it pleases, and also the second, because it is only right and proper that whenever the government assists an individual that it should lay down the rules under which the grant, subsidy or donation is made. The treatment will be confined to the regulation of non-urban land uses under the police power in the interests of public health, safety, morals and the general welfare. In this case no public compensation for the loss of income for damage or inconvenience is required, though not excluded as a part of the good will of the state toward its citizens. It is proposed also to avoid legal questions such as the division of powers between federal and state governments, the problems of due process, of police power and public purpose, the delegation of power, or the constitutionality of the use of the police power as