Comparison of Essays on the Issue of Land Taking (Essay Sample)

Comparison of Essays on the Issue of Land Taking
The land taking topic is very difficult in the United States, especially for planners and the legal fraternity. Generally, there is a dilemma when making decisions on this topic; whether to take the legislative approach or the quasi-judicial position on land use. This essay presents a brief analysis of two essays that have discussed the land taking and property rights in general. Ann Louise Strong and others author the first article, Property Rights and Takings, while William A Fischel authors the second one, Response “To Impact Fees and Housing Affordability”. These essays have a lot in common concerning the positions taken concerning land taking in the United States.
Land and property governance issues in the U.S. have evolved over the decades. Although the drafters of the takings clause did not contemplate it, this clause is the source of government regulations evident today. As the government operatives apply the takings clause, they must ensure that the original aim of this clause is safeguarded. That is, any regulation burden that affects a landowner is shared by the entire society. Therefore, it is important for all government levels to ensure land taking regulations are updated and followed, leading to just compensation for landowners.
The Legal Information Institute says that “when a government actually or constructively takes private property for public use, that government must pay ‘just compensation’ to the property former owners” ("Takings," 2013). These sentiments concur with those of Strong, A. L., Mandelker, D. R., & Kelly, K. D. (1996), who note that the compensation discussion dates back to the Fifth Amendment of the US Constitution. In their support of compensation for land owners, the authors note that the issue is about “a fair allocation of the burdens and benefits of the programs undertaken by the government for a public purpose” (Strong , Mandelker & Kelly, 1996). In the land discussion, compensation is sometimes complex because externalities may be involved. Worthwhile to note, the federal, state, and local governments are all involved in land legislations, albeit at different capacities. The authors revisit the roles each level of government has in land use regulation, planning, taxation, and spending. Specifically, Strong, Mandelker & Kelly (1996), observe that there have been some changes, for example the federal role has moved from one of “exploitation to stewardship.” Importantly, the authors note and support the continued active role of the government in land use matters.
Strong, Mandelker & Kelly (1996) tackle the regulations of the government on land matters at length. According to these authors, there exists a discord between public expectations and the local authorities’ approach to land matters. The authors observe, “Many local regulations lack the supporting rationale of a publicly adopted plan (Strong , Mandelker & Kelly, 1996).” That explains why affected people always challenge regulations even to the court level. Even the state enabling acts are subject to split decisions, further jeopardizing the acceptability of the regulations. Sometimes the federal government introduces measures that are unpopular on the ground. As the authors observe, such decisions have led to “local public and private hostility (Strong , Mandelker & Kelly, 1996).” Even with such problems, the role played by the federal government, and indeed other governments is still very useful. In addition, the United States Supreme Court is ready to arbitrate when just compensation, property rights, among other constitutional guarantees are violated by any of the three governments.
In a clear support of the compensation view, Fischel (2005) says, “development-minded landowners should not be made to feel that they are second-class citizens in the eyes of the courts and state constitutions.” This is a very important stand because the clause within the bill of rights sought to bring fairness in this matter. The effects of subjecting the landowner to unfairness such as rent seeking may not be desirable. Some of them might resort to dubious tactics, such as refusing to pay exactions. As Fischel (2005) notes, this might cause a situation where many decent people are deterred from becoming developers or dealing with especially aggressive communities.
Fischel (2005) expresses his support for the government’s involvement in the control of land. In his text, the author focuses on taxes, exactions. He looks at how these aspects relate in terms of government’s regulations on land. While noting the various differences between taxes and exactions, the author also notes that the two subjects share several intersections. For example, Fischel (2005) notes, “the difference between exactions and taxes becomes less clear insofar as the potential resident views what the revenues finance as being paid for by the prospective property taxes that he/she will pay.” At this point, it becomes clear that the two authors have no problem with the government taking a role in the implementation of land use controls. Like Strong, Fischel (2005) is of the view that some remedies are required on the kin...