Open-space preservation could proceed through purchase without touching property rights.

Evidence

Whyte also rejected the use of zoning. Though zoning had a role in preserving open space, zoning decisions were too easy to overturn. More important, the use of regulation to enforce open-space preservation was unfair and probably unconstitutional. What could justify restrictions on the right of landowners to develop their property? The regulatory powers of a community should be used only to prevent property owners from doing tangible harm, Whyte argued, not to compel them to provide a community benefit. If a community wanted to enjoy open space, the taxpayers should expect to pay for the privilege. In many cases, communities simply should acquire desirable lands as quickly as possible. But Whyte also argued for the use of conservation easements. If citizens wanted to preserve a meadow or a marsh, they could buy the right to develop the property – and never use that right. The land would still be private property; the landowner would be compensated for the loss of potential profit from development. In return, the community would have the benefit of open space without the financial burden of acquiring the land outright. — Adam Rome, The Bulldozer in the Countryside, 521

Categorization

• ADDENDUM: Directly supports the ‘Grafting & Growth’ style thread on land-use law and the property-rights dimensions of environmental protection; also connects to the legal-systems course question of what justifies restricting a landowner’s use — Whyte’s harm principle versus community benefit distinction is a classic regulatory takings doctrine point.
• XREF: Whyte’s harm-based limit on regulation versus community benefit echoes the regulatory-takings line litigated in cases like Lucas and Penn Central, which the LGST legal systems course would treat; also resonates with William Cronon and the ‘urbanized land ethic’ thread from earlier in this book about property as a bundle of rights. — connects to: The Housing Act of 1961 first brought open-space preservation into federal law. — Adam Rome, The Bulldozer in the Countryside:…, 527; Legislative power cannot take property without the owner’s consent — John Locke, Second Treatise of Government, 171; Cluster development could preserve communal open space at no density loss or added cost. — Adam Rome, The Bulldozer in the Countryside:…, 522

Broader Connections

• Cluster development could preserve communal open space at no density loss or added cost. #exemplifies (0.85) — Adam Rome, The Bulldozer in the Countryside, 522
• Legislative power cannot take property without the owner’s consent #corroborates (0.75) — John Locke, Second Treatise of Government, 171