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Far from utopian, the Lake Tahoe plan provides for an eventual population of 288,000 in the basin. But the commission sharply restricted subdivisions on the slopes of the surrounding mountains and along the shore fronts and streams.
It will therefore remove a total of 34,000 privately owned acres from "development opportunity," mostly by buying them, or exchanging them for parcels of existing park land that can be developed with little environmental damage. But the plan also overturns a cherished concept. Says Nevada Rancher Ray Kinsley, a commissioner of the agency: "I used to think that we could own the land from the center of the earth to the top of the sky. Now I know better."
Indeed, all plans assume that society, represented by an appointive or elected agency, has a right to tell private landowners what they can do with their land. Thus, as Americans ask for more and more land-use plans, they do so at some cost to their own freedom. Developer James Rouse of Baltimore says: "We are in the midst of the most rapid, radical change in the concept of property rights in our history.
It's good. There may be excesses, but in a great rush our society is saying that we won't squander the land any more."
Understandably, many affected landowners disagree, and are seeking redress in court. At Lake Tahoe, for instance, not only is the regional commission being sued for some $200 million, but the commissioners are also being named in other suits. Asked how much the suits against him amount to, Ray Kinsley calmly replies: "Haven't counted. Maybe $235 or $240 million. I'm in court for the rest of my lifetime, I guess."
The legal foundation for all such cases is the Fifth Amendment to the Constitution, which specifies, "... nor shall private property be taken for public use, without just compensation." The 14th Amendment adds that private property shall not be taken "without due process of law." Traditionally, the courts have upheld land-use regulations that leave property owners some "reasonable use" of their land. That is, a man owning 100 acres would still have reasonable use if zoning restrictions were changed to allow only ten houses instead of 100 to be built on his property. The crunch comes when he is left no economic use at all—and that happens more and more often.
In Stratford, Conn., for example, the Rykar Industrial Corp. wants to develop 277 acres of the Great Salt Meadow that it has held for more than 20 years. But under Connecticut's wetlands law, the state now regulates development on the ecologically valuable marsh and refuses to issue Rykar a permit to dredge and fill the land. Rykar has sued, charging that the state has illegally "taken" its land. In compensation, the company wants $77.7 million. The case, or another like it, eventually will be heard by the U.S. Supreme Court, which will have to make a decision that will strongly influence the course of America's land use.