The traditional dichotomy between governmental regulation and takings law no longer represents a viable means of accomplishing present day societal or individual goals with respect to land use. This author believes that a system can be created that considers both the interests of the government and the individual, attempting to reach an equitable and practical result with respect to each. This article explores the potential use of an alternative compensation system relating to governmental activity in the field of land use-a system based not upon the highest and best use principle, but rather upon the use of compensable regulations. The article begins by analyzing the internal shortcomings of the present regulation-takings law. It next provides alternatives which either remedy or avoid those shortcomings. The author addresses underlying normative and ethical issues that relate to the proposed system, testing, it for its efficiency as well as its equity. Finally, the article examines compensable regulations and an alternative compensation system as applied to agricultural land preservation. The author does not suggest abandonment of all traditional concepts concerning government involvement in land use, but recommends that this area of the law be modernized.
Tomain, Joseph P., "Compensable Regulations and an Alternative Compensation System" (1981). Faculty Articles and Other Publications. 205.