Commonwealth of Puerto Rico V. Rosso: Land Banking and the Expanded Concept of Public Use

As the supply of vacant land on which to expand dwindles, the economic, social and cultural blight attendant upon the rapid but relatively unplanned growth of metropolitan areas increasingly becomes a subject of grave concern throughout the world. The two most common traditional approaches to land use problems are now proving inadequate, given the nature of urban sprawl. The first is zoning, basically an exercise of the police power whereby a governmental body restricts the use of land by appropriate regulation without compensating the owner. The restriction must be for the purpose of promoting the health, morals, safety or welfare of some segment of the whole community. Even if this condition is satisfied, many decisions have invalidated zoning regulations as being so restrictive that they constitute an actual taking for which compensation must be paid. The restrictiveness of a regulation is evaluated by taking into consideration such factors as surrounding area uses and reasonable return on property values. Yet these factors clearly tend to be linked with present usages and values, making it nearly impossible for the government to use zoning as an effective instrument to allow for projected future indeterminate usages. Comprehensive planning for urban areas has demonstrated that successful control of developments requires that the planning instrument allow maneuverability. The traditional power of zoning simply does not allow this indeterminate flexibility. Moreover, zoning is essentially negative. It can preclude undesirable uses of land, but it cannot compel and may not even encourage desirable land uses.