미국에서의 규제권 강화와 규제적 수용

The expansion of police power and regulatory takings in the U.S.

In the United States, the general police power to regulate land use is vested in the state governments according to the U.S. Constitution. The authority to enact land use regulation is rooted in the states police power to legislate in furtherance of the public s general welfare. State governments have authority to use police power to promote health, safety, morals or general welfare. The governments did not use their police powers extensively to regulate land use before the early 1900s however. At the turn of the last century, the government s regulatory powers were expanded and the federal government actively encouraged land use regulation. All police power enactments including land use regulation must conform to basic state and federal constitutional requirements of substantive due process and equal protection of the laws. In 1922. the Supreme Court stated that the general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. in Pennsylvania Coal Co. v. Mahon(260 U.S. 393. 415). The Court introduced regulatory takings concepts to protect individual land owners from too-far reaching land use regulations. It is well established that where the use of police power is too unfair or goes too far, the public, not the landowner, must bear the cost in the U.S. The Supreme Court has elaborated regulatory takings in several cases such as Penn Central Transportation Co. v. New York(438 U.S. 104 (1978), Lucas v. South Carolina Coastal Council(505 U.S. 1003 (1992) and Dolan v. City of Tigard(512 U.S. 374(1994)). According to nuisance exception, the notice rule and several police power grounds, the Supreme Court still denied regulatory takings claims in many cases in the United States. Thus, the state s police power is still an effective ground to regulate unlawful land use in the U.S.