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Figure 5.2
Sycamore Commons Shopping center,
Matthews, NC. LS3P Architects, 2002. Searching for a
semblance of urbanity to use as a marketing tool,
American developers increasingly commission their
architects to design fragments of pedestrian space
around restaurants as islands of refuge within large
surface parking lots serving big-box stores.
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In Europe, a much higher 
social
value is attached
to rural land. Agricultural uses are conceived as
socially important at a deep, fundamental level,
having to do with aspects of national character, 
self-sufficiency and national security. National, and
indeed continental policy through the European
Union endorses this importance of farming to the
economy and culture through the complex labyrinth
of agricultural subsidies (Beatley: p. 58). These subsi-
dies, particularly in continental Europe, help to
maintain the countryside as a quilt of smaller work-
ing farms, stabilizing the social economies of rural
communities against the rapacious economics of
large-scale agribusiness.
The development pressure that promotes sprawl in
America is also curtailed in Europe by different social
norms regarding property rights for private land and
the amount of control public authorities can exert
over private property, but before exploring these in
more detail, let’s review the basic American position
for British readers.
Private Versus Public: 
The American Debate
In both nations, the concept of ‘compulsory
purchase’ in Britain, or ‘eminent domain’ in America,
establishes the right of governments to purchase,
at fair market value, private land needed for
civic improvements like building new roads. The
argument between private and public interests in
America stems more from other actions by government
that affect land values without any compensation
being paid to the landowner, and all planning is
circumscribed by the concern to avoid violating the
‘takings’ clause of the federal constitution. The Fifth
Amendment to the US Constitution reads in part
‘No person shall be … deprived of life, liberty or
property without due process of law; nor shall private
property be taken for public use without just
compensation.’
Originally conceived by the nation’s founders as a
constraint upon the arbitrary power of governments
(like the British crown) to take or seize land or prop-
erty without payment, this precept has been extended
by property rights advocates to cover changes in the
zoning provisions on private land. For example, if
property in a rural area on the outskirts of an
American city was originally zoned for three houses
to the acre, and the city wanted to reduce this classi-
fication and downzone the land to, say, one house
every five acres – on the grounds that the higher level
of development would injure the environment and
pollute water sources – then the elected officials may
have to brace themselves for a law suit from the
affected property owners. Many property owners
would have little hesitation in suing the city for
devaluing, or ‘taking’ economic value away from
their property. If the city lost, it would be liable for
perhaps millions of dollars in compensation to the
landowners. Even if it won, it would likely have accu-
mulated large costs in legal fees.
In cases like this cities do have the law on their side
to a greater extent than one might imagine from their
collective temerity. As we mentioned in the
Introduction, the Supreme Court’s 1978 decision in
Penn Central Transportation Company v. City of New
York
established the principle that a taking does not
occur unless government actions take away 
all
devel-
opment rights from a piece of property. Simply
changing the zoning and reducing the use of land
does not violate the Constitution. This ruling was
endorsed by the Supreme Court’s 1992 decision in
Lucas v. South Carolina Coastal Council
which
affirmed that a taking occurs when all use of property
is denied by government, but left open the question
of whether a partial devaluation constitutes a taking.
There is constant pressure from conservative groups,
homebuilders’ associations and property rights advo-
cates for this decision to be revisited and for the
interpretation on takings to be extended to include
all downzonings, but for the moment the law stands.
Polemic pamphlets arguing the property rights cause,
such as 
The Truth About Property Rights
published
by the National Association of Homebuilders, are
widely distributed to influence public opinion on
this matter and to encourage conservative lawmakers
to introduce new legislation that would restrict the
planning powers of local government (NAHB, no
date).
The American Supreme Court has also approved
similar actions for the ‘health, safety and welfare’ of
citizens under the concept of ‘police powers’, vali-
dated by a series of rulings over many years. These
powers have nothing to do with cops and robbers,
but constitute case law that makes provision for com-
munity actions to protect and enhance the public
good. The key Supreme Court decision dates from a
historic case in 1926, 
Village of Euclid et al. v. Ambler
Realty Co
., which confirmed the general validity and
legality of zoning property for the ‘public welfare.’
In our hypothetical example of reducing residential
density to protect water supplies, there is a very good
chance a city would win a court battle. However,
CHAPTER FIVE
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GROWTH MANAGEMENT, DEVELOPMENT CONTROL AND URBAN DESIGN
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case law is always a moving target, and this delicate
balance between zoning for the good of a community
and a constitutional provision for the protection of
private property is a condition that’s far from settled.
Thus planning authorities tread very carefully, or not
at all, in matters that engender such conflicts. Often
many very sensible planning policies that would
bring substantial benefit to the community are aban-
doned at the concept stage because planners don’t
think elected officials would uphold the policies
under threat of legal challenge from aggressive prop-
erty owners backed by national lobbyists. In other
instances, attempts at environmental regulation are
foiled by individuals.
In a celebrated case in North Carolina in 2001,
property owners along the banks of the Catawba
River, a waterway that supplies many communities
with drinking water, faced new regulations that
required them to retain a buffer of natural vegetation
50 to 100-feet wide along the water’s edge. This was
to enable run-off pollutants from future develop-
ments to be filtered out naturally before reaching the
river. In a fit of rebellion against a county govern-
ment they regarded as ‘communist,’ several property
owners cut down every tree on their land before the
regulation came into effect. By damaging their land
to this draconian degree, these landowners declared
they were striking a blow for individual freedom.