Control through Development

Government development is both the most forthright of controls and an important indirect control. The government operates largely in spheres the private sector finds unprofitable to enter—schools, parks, roads, and selected forms of housing ... The private construction boom in New York City amounted to $1 billion from mid-1940 to mid-1950, while during the same period the city spent about twice that amount for schools, hospitals, port facilities, parks, bridges, libraries, and other facilities.

The indirect control results from the inevitable repercussions in land uses, both publicly and privately owned, and on the whole setup of the metropolitan area. For example, a highway program may remove land from the tax rolls, displace families, pump more cars into central cities, and constitute competition for a transit system [that is] already weak. But the same program can result in vast areas of slums being razed; federal aid may be made available for access roads and to channel traffic into and around the heart of a city; capital expenditures can provide catalytic agencies for private urban renewal investments.

Legal institutions enter the picture at several points. One is with respect to compensation, a field of law which is, to put it most kindly, both confused and confusing. How much the government must pay to acquire property it proposes to develop has a direct effect on how much development it can undertake. Part of this same question is how much property the government may acquire. If it may condemn in excess of its needs, it may be able to capture the increment its activities add to the value of surrounding properties. The effect is the same as a reduction in the cost of the project site. But [what] some jurisdictions hold this economy is beyond the pale of the Constitution. It may be that nothing short of an amendment to the Constitution will be able to effect a change.

The other point of contact is producing a most interesting legal accommodation. An attempt is being made, mostly in the context of open space, to reduce public costs by restricting purchases more closely to what is needed. The effort is resulting in the invention of new interests which can be carved out of the fee simple absolute. These include development rights, popularized by the British 1947 Planning Act, and conservation easements — California's contribution. Massachusetts has taken this idea and woven it into an interesting new combination with zoning and tax controls. A 1957 act authorizes the owner of land zoned for agricultural, forest, or open space use to apply for classification for tax purposes as open land. This entitles him to a tax rebate of 90 percent during the first three years, 70 percent for the next seven years, and 50 percent during the remaining years that the land is so classified.

These concepts should encounter little difficulty in the courts; in fact, quite the reverse — particularly in jurisdictions where excess condemnation is prohibited. Although the emphasis of the newly carved-out rights is on public interests and that of excess condemnation is on the individual, both lead to the conclusion that the taking should be the smallest possible which permits achievement of the public end in view.—Charles M. Haar, professor of law, Harvard University.