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Obtain a printable copy of this article via Adobe Acrobat. Obtain a free copy of the Adobe Acrobat Reader. Volume 1, Issue 1 - March, 1999 Regulating land use: a legal perspective By Eric T. Freyfogle Many of the environmental problems on which the United States has made the least progress are those arising from bad land use practices, problems like flooding, loss of wetlands and wildlife habitat, run-off pollution, and urban sprawl. A key reason for this slow progress has been uncertainty about whether reform measures, like land-use restrictions, might improperly conflict with the protected rights of landowners. Illinois citizens want a healthful environment–a right guaranteed them in the state constitution. But they also cherish private property. The current debate over property rights is nothing new. Land ownership has always been a limited bundle of rights and responsibilities, and Americans have long debated what that bundle should inlcude. Several key lessons emerge from studying this long-continuing discourse: The issue today, as in the past, is not whether private property deserves protection. It is, instead, about the meaning of ownership. Should a landowner have the right to engage in a particular land use that harms neighbors or the community at large? Should a landowner have the right to seek redress when a neighbor engages in activities that disturb his own enjoyment of property rights? Over generations, communities have given different answers to such questions, sometimes allowing intensive land uses that cause spillover harms, sometimes halting such activities so as to protect more sensitive land uses and communal interests. Long before the Declaration of Independence, American lawmakers made extensive use of land-use regulations to resolve conflicts and to protect communities’ well being. Although the U.S. Constitution protects private property, it doesn’t create property rights as it does, for instance, rights to free speech and religion. Nor does it explain what ownership means. Property is a creation chiefly of state and local law, and state and local governments have broad powers to redefine what ownership means. These governing bodies–state legislatures, state agencies, county and city governments, zoning boards, health and conservation districts–are the lawmaking entities that have always been in charge of keeping an owner’s bundle of rights and responsibilities up to date. One principle that has long guided property law is the requirement that landowners not engage in harm. But what is harm? Over the years, lawmakers have given the term varied meanings, largely based on their assessment of a community’s or state’s needs. Two points here are quite clear: Harm has always meant harm to the well being of a community, as well as harm to adjacent neighbors. And, harm is a shifting concept, one that takes on meaning only in light of a community’s values and goals. Finally, when a community regulates land use, it isn’t diminishing property rights overall. It is shifting the bundle of ownership rights. A landowner may lose the right to engage in an intensive land use, like operating a large hog farm, but gain the right to protection against unwanted odors and pollution. A law that protects wetlands may diminish the right to drain, but replaces it with protection against flooding and pollution from upstream drainage. Today’s conflict over property rights stems from an increasing recognition that many land uses cause ripple effects that disrupt the healthy functioning of surrounding natural and social communities. Some land uses are damaging in isolation; others, like drainage and the alteration of wildlife habitat, become harmful only when too many land owners engage in them. Another root of the current debate is the intensification of land uses, as exemplified by the widespread use of pesticides and fertilizers on farms and subdivisions. In contrast, there is the increasing desire of many citizens to promote more healthy and aesthetically pleasing communities. Lawmakers have both a right and duty to keep property law up to date. They must take into account current values and circumstances and insist that private owners align their land uses so that they respect, not only the similar rights of other owners, but the shifting needs and rights of the larger community. Despite the common charge that new land-use rules amount to an unlawful “taking” of private property, the Constitution only modestly limits what lawmakers can do. Lawmakers have particularly broad flexibility in restricting land uses that the majority of citizens deem harmful. Of course while lawmakers exercise their powers, they need to keep in mind the important economic and civic functions that private property provides, like stimulating economic enterprise, protecting privacy, and giving citizens a settled stake in the body politic. But their first duty is to the community as a whole, and they can and should insist that landowners align their expectations and their land uses with the good of that community. Eric T. Freyfogle is the Max L. Rowe Professor of Law at the University of Illinois in Urbana-Champaign.  Share your questions or comments regarding this article with the editors of IEPR.  For media inquiries regarding this article Other Articles in Volume 1, Issue 1 - March, 1999: Why an environmental policy newsletter? Court prohibits classifying large-scale hog farms as industry

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