Back to the Future of Land Use Regulation

This essay is a slightly modified version of the remarks delivered at the 14th Annual Brigham-Kanner Property Rights Conference in Williamsburg, Virginia in October 2017. As always, I bring you greetings from the land of Midkiff, the land of Kaiser Aetna. The jurisdiction in which the legislature thought it was a good idea to try and drive gasoline prices lower by adopting a rent control statute for certain gas stations on the theory that the station owners would naturally pass on the savings to consumers. As you recall, the United States Supreme Court in Lingle held that this scheme should not be analyzed under the Just Compensation Clause, but under the Due Process Clause. The Court concluded that as a question of due process and government power, Hawaii's scheme survived the rational basis test, even though in reality—and predictably—the statute did not come anywhere close to accomplishing what it purportedly set out to accomplish: Hawaii continues to have some of the highest gasoline prices in the nation, thank you very much. I raise all this both as an introduction to my remarks and as background for our panel, “The Future of Land Regulation and Tribute to David Callies.” But before we can talk about land use law's future, we must delve into its past. Because the rational basis test, which we have now seen over the years inexorably creep into takings and eminent domain law—had its genesis as we all know, in zoning and land use law. Today, I'll focus on two cases, one old, one new