Existing Uses and the Limits of Land Use Regulations
Serkin, Christopher
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 doctrinesfrom
zoning to the vested rights doctrine to amortization rules for prior nonconforming
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. Normatively,
many obvious-seeming justifications dissolve on closer inspection. Objections
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
actions.