Christopher Serkin on Existing Uses and the Limits of Land Use Regulations

Over at the Legal Workshop, the NYU Law Review has posted a piece by visiting professor Christopher Serkin, entitled "Existing Uses and the Limits of Land Use Regulations." An excerpt is below, and you can read the entire article here.

Existing uses occupy a special place in property and land use law.  A use, once established, is imbued with an expectation that it may continue to exist, even in the face of regulatory change.  For example, once built, a building becomes all but immune from subsequently enacted zoning rules.  As much as this comports with strong intuitions, there is something peculiar about the law’s special solicitude for existing uses.  If a developer purchases undeveloped property, planning to build a new condominium, the government has broad powers to downzone or otherwise restrict development on the site.  But once the developer has built the condos—in fact, once the developer has done enough to vest her development rights—the entire legal landscape changes.  Instead of a nuanced inquiry into the government’s interference with the developer’s investment-backed expectations, the existing condos suddenly receive near-absolute protection.

This raises important questions:  To what extent does current land use and property law protect existing uses?  To what extent does the Constitution demand this level of protection?  Are there normative justifications for protecting existing uses?  The answers turn out to be surprising.

Courts have developed a variety of doctrines that assume categorical protection for existing uses.  In fact, however, current constitutional rules do not compel it.  Moreover, there are no particularly good reasons to treat the existence of a use as the boundary line between property that can and cannot be regulated.  A more sensible approach to existing uses—and one that the Constitution in fact permits—is to treat them in the same way as prospective future uses.  There is no persuasive reason to afford greater legal protection to an existing decrepit shack in the woods than to a developer’s reasonable but not yet realized plans for the future.

Comments

[Larry Spears]

Christopher Serkin makes an excellent point, with major beneficial ramifications for considerations of environmental protection. Take, for instance, landscape preservation. If a landscape for protection has incurred inconsistent existing uses, can those existing uses be removed? The Serkin analysis includes existing land uses in the same protective framework as prospective future land uses and permits appropriate processes for their assessment.

The Serkin approach points out the importance of the soundness of the public processes for the assessment of existing and prospective future land uses. For such a public process for landscape preservation, see http://www.democracyservices.com/7701/9222.html