Document Type
Article
Publication Title
New York University Law Review
Publication Date
11-2009
ISSN
0028-7881
Page Number
1222
Keywords
property law, land use regulations, zoning, Takings Clause, Due Process
Disciplines
Law | Property Law and Real Estate
Abstract
This Article identifies property law's special protection for existing uses, explores possible justifications for this protection, and argues that none can support the strong protection that existing uses currently enjoy. Various land use doctrines- from zoning to the vested rights doctrine to amortization rules for prior noncon- forming uses--assume that the government cannot eliminate existing uses without paying compensation. The Article asks whether this result is compelled either by constitutional rules or by normative considerations. Neither the Takings Clause nor the Due Process Clause requires this level of protection for existing uses. Norma- tively, many obvious-seeming justifications dissolve on closer inspection. Objec- tions grounded in underlying principles of fairness and reliance are not conceptually different for regulations prohibiting future uses than for regulations of existing uses. Nor is the extent of economic loss necessarily greater for one than for the other, even though regulations of existing uses create out-of-pocket costs whereas regulations of future uses only implicate forgone profits. In fact, none of the possible explanations for the special treatment of existing uses actually justifies their protection. This Article ultimately concludes that existing uses should not be entitled to any special judicial protection but instead should be subject to the same takings and due process analyses that apply to all regulation and governmental action.
Recommended Citation
Christopher Serkin,
Existing Uses and the Limits of Land Use Regulations, 84 New York University Law Review. 1222
(2009)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1445