The Environmental Debate, Third Edition

90 The Environmental Debate

Every restriction upon the use of property

imposed in the exercise of the police power

deprives the owner of some right theretofore

enjoyed, and is, in that sense, an abridgment by

the State of rights in property without making

compensation. But restriction imposed to pro-

tect the public health, safety or morals from

dangers threatened is not a taking. The restric-

tion here in question is merely the prohibition

of a noxious use. The property so restricted

remains in the possession of its owner. The State

does not appropriate it or make any use of it.

The State merely prevents the owner from mak-

ing a use which interferes with the paramount

rights of the public. Whenever the use prohib-

ited ceases to be noxious,—as it may because of

further change in local or social conditions,—

the restriction will have to be removed and the

owner will again be free to enjoy his property as

heretofore.

The restriction upon the use of this property

can not, of course, be lawfully imposed, unless

its purpose is to protect the public.

Source: United States Reports, Vol. 260 (Washington, D.C.:

Government Printing Office, 1923), pp. 412, 413, 415, 417.

The rights of the public in a street purchased
or laid out by eminent domain are those that it
has paid for. If in any case its representatives
have been so short sighted as to acquire only
surface rights without the right of support, we
see no more authority for supplying the latter
without compensation than there was for taking
the right of way in the first place and refusing
to pay for it because the public wanted it very
much. The protection of private property in the
Fifth Amendment presupposes that it is wanted
for public use, but provides that it shall not be
taken for such use without compensation.

B. Justice Louis Brandeis’s Dissenting Opinion

Coal in place is land; and the right of the
owner to use his land is not absolute. He may
not so use it as to create a public nuisance; and
uses, once harmless, may, owing to changed con-
ditions, seriously threaten the public welfare.
Whenever they do, the legislature has power to
prohibit such uses without paying compensa-
tion; and the power to prohibit extends alike to
the manner, the character and the purpose of the
use....

Appeal from a decree of the District Court
enjoining the Village and its Building Inspector
from enforcing a zoning ordinance. The suit was
brought by an owner of unimproved land within
the corporate limits of the village, who sought the
relief upon the ground that, because of the build-
ing restrictions imposed, the ordinance oper-
ated to reduce the normal value of his property,

and to deprive him of liberty and property with-

out due process of law.

* * *

A motion was made in the court below to

dismiss the bill on the ground that, because

complainant [appellee] had made no effort to

obtain a building permit or apply to the zoning

Document 75: Village of Euclid et al. v. Ambler Realty Company (1926)

The earliest zoning laws were instituted at the beginning of the twentieth century by local governments

attempting to limit the use of land in ways that were detrimental to the interests of the local community. In

recent years, zoning laws have been used as an important means of containing growth near and preventing

the development of wetlands and other environmentally sensitive or ecologically important areas. The Euclid

(Ohio) case established that communities have the right to enact zoning laws in the public interest even if they

cause the property of certain individuals to be devalued.