A "least intrusive means" test for zoning?

One benefit of the Supreme Court taking up a case is that the subject matter comes into focus for many people, including lawyers especially, who otherwise would never think about it. The eminent domain case now before SCOTUS is about when/how a government may compel sale of a property.

But that is just the easy part of a far more pertinent and far-reaching question -- when/how may a government regulate the use of private property, effectively taking some, all or a merely substantial part of it through zoning but without buying it. This is the famed "takings issue" which is the very heart and soul of land use law. And of urban planning.

Now I am a firm believer that zoning etc etc etc is one of those necessary evils of metropolitan culture. See for example Eminent domain was not handed down by God.   But I am also a long-term observer that government  -- in Seattle, anyway -- uses this tool in a way which exceeds what is practically required to create a fine city. See also  "Client"? or "Supplicant"?

I'll suggest a solution, (sorry about the legal code words) which cuts through a lot of issues in eminent domain and zoning both. It is pretty simple. Extend to property rights the protections (to some degree) given to civil rights and liberties when faced with governmental intrusion -- i.e. some sort of "least intrusive means" test.

While government can interfere with your rights when it comes to limiting, say, free speech because of some conflict with, say, public safety in a theater. But govt. must tailor (and that is the word commonly used) the remedy to the "least intrusive means" of solving the specific problem while preserving as much of the underlying civil right/liberty as possible.

SCOTUS long ago moved away from such a limitation on government power and gave great deference to legislative authority when it comes to regulating property rights. "Public policy is what we say it is." This is an apt time to reconsider that balance and nudge things back in the other direction. The problems we face in land use these days do not stem from lack of governmental power but simply from
1. fundamental disagreements about how society should be formed and
2. insufficient human wisdom.
More regulatory power solves neither problem.

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At any rate it is good to see that the blogosphere is paying attention to the core of land use law: the "takings issue." See, for example, Textualism and the Takings Clause:. and Takings Clause for starters.

Also:
Will Leviathan Prevail?
Property rights (updated)
Back to Property Fundamentals
What it all means
U.S. Supreme Court Hears Argument On Eminent Domain For Private Use
Will the Supreme Court Extend the Poletown Reversal?
Then Kip Esquire take the discussion into  fantasy.

UPDATE: I ran into an interesting debate at Legal Affairs Debate Club titled Can Your Town Take Your Home?  One of the debaters -- Professor Epstein -- makes a point which should trump the whole matter: eminent domain is simply superfluous as a tool of economic redevelopment. Epstein says:

First, on the practical level, giving cities blank checks over the property they condemn won't improve their decisions. Local governments can conduct all the hearings they want, but that doesn't prevent political intrigue from dominating their decisions. Peter, you speak about the need to assemble large contiguous plots of land. But this the City already has with over 90 acres in hand and it can't figure out what to do with them because the local economy doesn't support its grandiose ambitions. Yet when politics intervene, it will craft a convenient exception from the grim urban reaper. Hence the Italian Dramatic Club is spared from condemnation when the Brelesky house that abuts it is not. (italics added)

In any event, redevelopment for residential purposes takes place all the time without this heavy-handed intervention in towns that do every bit as well, or indeed better, than New London, which has only entered into this unfortunate caper because of the state funds that it has received and spent. There are all sorts of ways to spur development. The relaxation of zoning restrictions and misguided building codes, for example, don't require local governments to throw out long-term residents for a lark. (italics added)

Economic development is essentially a mystery. Why one society is rich and one is poor is one of the great, if not the greatest, of all mega-historical questions. It is not answered even to some small degree by eminent domain for the project du jour. Local government -- any government, even a truly wise one -- can/should do very little beyond providing honest courts and good schools. With those two elements you have the true basis for wealth formation. From my observation most of the rest of so-called "economic development (and btw I have worked in local government) is essentially redistributive from the poor to the rich. To aid it with the power of eminent domain is a huge mistake and one which will bring nothing except social dis-equilibrium.

Comments

[Michael Lewyn]

Just forget the "good schools" and keep the "honest courts" (and maybe public transit). The so-called "quality" of a school depends on the quality of its students- nothing else. So if a city has a lot of poor people who don't get a lot of intellectual stimulation at home, its schools will never be as prestigious as those of a wealthy suburb. Can it educate people to some extent? Sure. Can it narrow the gap slightly? Maybe. Can it eliminate the gap, so that suburbanites will want to go to a school where 50% of the kids are eligible for free lunches? Probably never.