differential treatment of owners of presently 

 undeveloped properties. 



—To what extent does regulation reduce use and 

 value of the owner's property? The Constitution 

 does not protect property owners against State 

 regulations merely because the regulations result in 

 substantial reductions in the value of their prop- 

 erty."" The States, however, follow many dif- 

 ferent interpretations, and most are imprecise as to 

 what bases are relevant to measure loss of value or 

 loss of use. Most courts rely on tests that solely 

 measure the difference in market value with anH 

 without regulation. However, in the recent Massa- 

 chusetts case of Commissioner of Natural Re- 

 sources V. S. Volpe & Co.,^^^ which involved 

 issuance of a permit to dredge and fill wetlands for 

 a marina, the Massachusetts Supreme Judicial 

 Court suggested that many factors, including the 

 owner's investment, fair market value with and 

 without regulation, and "whether a 'taking' would 

 occur if with the restrictions the property would 

 not yield a fair return on the amount of the 

 owner's investment in the property or the fair 

 market value of the property without the restric- 

 tions," were relevant to the determination of value 

 and use loss. 



—Does the regulation produce a "benefit" for the 

 pubUc which ordinarily would be acquired by 

 condemnation? Illustrative of this concern are 

 recent cases in New Jersey'"^ and Con- 

 necticut'"'' in which land had been zoned for 

 open space and for a flood water detention basin 

 and had created a flood plain district (Morris 

 County Land Improvement Co. case), reducing the 

 market value prior to governmental purchase as 

 much as 75 per cent (Dooley case). The New 

 Jersey Supreme Court held that the regulation 

 constituted a taking: 



Both public uses are necessarily so all- 

 encompassing as practically to prevent the exercise 



See, e.g., Goldblatt v. Town of Hempstead, 369 

 U.S. 590(1962). 



'°^349 Mass. 104, 206 N.E. 2d 666 (1965). 



103 



Morris County Land Improvement Co. v. Township 

 of Parsippany-Troy Hills, 40 N.J. 539, 193 A. 2d 233 

 (1963). 



1 04 



Dooley v. Town Plan and Zoning Comm. of the 

 Town of Fairfield, 154 Conn. 470, 197 A. 2d 770 (1964). 



by a private owner of any worthwhile rights or 

 benefits in the land. So public acquisition rather 

 than regulation is required. 



The Connecticut Supreme Court of Errors held to 

 similar effect, stating that the plaintiffs had been 

 "deprived by the change of zone of any worth- 

 while rights or benefits in their land." 



The effect of the constitutional provisions 

 requiring "just compensation" for "taking" prop- 

 erty is to allocate or spread the cost of a pubUc 

 benefit over the tax base or community rather 

 than have the individual land owner absorb the 

 cost. Many attempts are being made within the 

 United States to seek tests that provide for 

 rational and ethical distribution of social costs, 

 i.e., seeking criteria and methods for measuring the 

 harm or benefit or both resulting from regulation 

 of use. 



However, there is no unanimity of approach, 

 and it is impossible to state how each State will 

 balance the equities. Because of the diversity of 

 factual situations, it is doubtful that any State will 

 adopt or limit itself to one test of reasonableness, 

 whether harm-benefit, reasonable reduction in 

 value, or value reduction based on the owner's 

 investment, or some other combination. 



It is a truism of the growth of our society that 

 economic values .have been erhphasized to the 

 detriment of recreational, conservation, aesthetic, 

 and psychological values. In the sphere of land-use 

 regulation, when economic and noneconomic 

 values have come into conflict, the economic value 

 has most often been paramount; cost-benefit 

 analysis is not a very good quantitative technique 

 for handling recreational, ecological, or other 

 qualitative values. Bending to economic pressures 

 has a profound impact on effectiveness of land-use 

 regulatory techniques. 



Land-use regulations can provide both incen- 

 tives or disincentives, depending upon goals 

 sought. Such regulations can be used effectively to 

 encourage economic development. A more diffi- 

 cult problem is in the qualitative sphere, such as 

 the preservation of open space, particularly in Ught 

 of the presently overwhelming use in the United 

 States of regulation without compensation. In 

 recommending that the role of zoning for open 

 space preservation be restudied and revised, Ann 

 Louise Strong stated in "Open Space for Urban 

 America": 



III-124 



