[*PG683]POLICE POWER AND THE PUBLIC TRUST: PRESCRIPTIVE ZONING THROUGH THE CONFLATION OF TWO ANCIENT DOCTRINES
Abstract: The close historical affinity between the Public Trust doctrine and police power supports a more expansive view of zoning. The doctrines’ kindred public interest spirit can empower localities to adopt dynamic, proactive, prescriptive zoning ordinances that promote community character. To do so, municipalities must self-define their unique community assets and ambiance through an openly developed comprehensive plan that honestly memorializes development patterns and sets forth community goals. If public interest is at the heart of the comprehensive plan, localities may consider an expansion of the police power as justified in order to zone and nurture communtiy character more justified than zoning which relies on the classic Euclidean general welfare criteria. A combination of the police power, infused with the Public Trust, and a candid comprehensive plan, could allow localities to adopt zoning ordinances that preserve and promote the unique set of intangibles that attract people to a community in the first place.
In the nearly eighty years since Village of Euclid v. Ambler Realty Co.,1 zoning’s police power has hidden behind the four criteria that the United States Supreme Court crafted in this landmark case: public health, safety, morals, and general welfare.2 While the relationship between a zoning ordinance and these four criteria is often appropriate, at times judicial interpretations of these standards promote a le[*PG684]gal fiction.3 Indeed, tenuous relations between the recognized criteria and the zoning ordinances stretch proffered reasons to the point of snapping.4
This Comment assesses the use of zoning to protect community and neighborhood character and to nurture the human ecosystem of the city,5 but not under the traditional standards of Village of Euclid. Municipalities should instead adopt an expansive view of zoning,6 justified by the seldom-acknowledged historical roots of the police power.7 In recognition of the kindred spirit of the police power and the Public Trust doctrine,8 communities should go a step further and [*PG685]use zoning delegation not just to protect community character, but to actually foster and nurture its presence.
The police power bears a close relation to the Public Trust doctrine.9 Both legal doctrines include similar origins in Roman law and offer protections in the public interest,10 with the sovereign in control of each doctrine’s power.11 By acknowledging the similarities of these ancient doctrines, localities may confidently adopt dynamic, proactive, prescriptive zoning ordinances12 to promote their community character. Just as Professor Joseph Sax urged the judiciary to reach back to Roman law in supporting the Public Trust in his seminal work, The Public Trust in Natural Resource Law: Effective Judicial Intervention,13 the judiciary should now reach back to the kindred public interest roots of the police power in order to expand its scope.
Currently, permissible zoning objectives with traits similar to character zoning survive judicial scrutiny, despite tenuous relations to accepted Euclid-based criteria.14 In part, this expansion of Euclid criteria survives despite the attenuated reasoning because courts grant a presumption of validity to zoning ordinances and only find an ordinance invalid if challengers overcome that presumption.15 The current expansion of general welfare stretches the zoning fabric, leaving slender threads of reasoning to support the presumption that zoning ordinances meet judicially acceptable goals.16 A more reasonable approach is available, one that does not involve continuing this premise.
Instead, localities can define community character through theories of communitarianism and consumer surplus17 in suburban loca[*PG686]tions18 and then memorialize those definitions in a comprehensive plan.19 Municipalities can design comprehensive plans to define their unique standards.20 Communities, faced with growing sprawl and a desire for open spaces, will especially benefit from comprehensive plans and prescriptive zoning.21 Furthermore, comprehensive plans also serve to put property owners on notice of community characteristics, the very same intangibles that prompted the buyer to choose a specific neighborhood in the first instance.22
Character zoning offers a societal control in the public interest. The rights of a community interested in protecting or fostering its character may trump the rights of an individual property owner.23 Given the close affinity between the Public Trust and the police power, municipalities may support a more expansive view of the police power, one that does not erode private property rights but restores the original balance between private property rights and the public interest.24
In this Comment, Part I introduces the historical perspective of zoning, from the roots of zoning to the delegation of the zoning power in the United States. Part II reviews how municipalities define their own character and set standards to zone with respect to community character. Part III explores the common bonds of the police power and the Public Trust, including an examination of the police power’s Roman law roots. The final section then questions whether, by recognizing the police power’s historical relation to the Public [*PG687]Trust, zoning to protect character is more legitimate than it would be if crafted under the Euclid standards.
Localities need to rethink private property rights and what they represent given today’s growing, demanding, and sprawling society.25 In view of the potential benefits of character zoning, states should infuse the police power delegation explicitly with the spirit of its related doctrine, the Public Trust. This combination can appropriately bolster attempts to preserve and promote that set of intangibles that attracts private property owners to a particular community, allowing courts to recognize that the police power is infused with the Public Trust.
Zoning’s historical development is instructive in interpreting the current state of zoning regulation.
Historically, zoning has been connected to the common laws of nuisance and trespass so that one property owner did not use his land to harm others.26 The most fundamental right of property ownership today is the right to exclude.27 Zoning better identifies a private property owner’s right to defend against nuisance, and thereby promotes the general health, safety and welfare of the public.28
States delegate authority for land use planning and regulation.29 The Tenth Amendment of the United States Constitution reserves this regulatory power strictly for the states.30 These powers are the [*PG688]broadest and least limitable source of authority that states grant to municipal governments.31 Moreover, since the delegation is granted with very little specific guidance, American municipalities arguably enjoy “the most liberal property laws on earth.”32
Local governments derive their authority to zone from state legislatures, either from state constitutional home rule or enabling legislation.33 This delegated authority usually contains broad parameters allowing localities to zone principally to protect property owners from “negative externalities.”34 Municipalities then use this police power for the public good to classify, specify and identify land uses.35 Usually, the enabling statute or home rule legislation grants localities the appropriate means or tools to achieve zoning goals.36 Generally, the terms and conditions are broad, offering the municipality flexibility in exercising the delegated power because each situation involves unique variables that a state legislature is unable to predict.37 For example, zoning ordinances that control housing density and land uses help limit change, particularly if any change is inconsistent with, and therefore disruptive of, a neighborhood’s character.38
Most states model their zoning enabling statutes on the Standard State Zoning Enabling Act,39 a model act that the U.S. Department of Commerce drafted in 1926.40 The Standard Zoning Enabling Act expressly prescribes uniformity as an underlying goal, and most states have adopted the uniformity element.41 However, municipalities may change zoning boundaries, particularly when the locus or an adjacent [*PG689]area gradually changes from residential to commercial use (perhaps because of traffic patterns or because the locus abuts a commercial district).42 If character and use of the locus change after the original zoning ordinance, a change in boundary may promote public health, morals, safety or welfare.43 Under the generally-adopted Zoning Enabling Act, municipalities can zone “with reasonable consideration . . . to the character of the district.”44 Such consideration would not be determinative of a regulation’s validity, but could “constitute the ‘atmosphere’ under which the zoning is to be done.”45
In Village of Euclid v. Ambler Realty Co., the Supreme Court first outlined standards for a state’s police power in municipal land-use regulation.46 There, Justice Sutherland specified that zoning regulations cannot be clearly arbitrary and unreasonable and must have a substantial relationship to “the public health, safety, morals or general welfare.”47 In part because this zoning could easily subsume neighborhood or community character, the Court recommended municipalities zone in conjunction with a carefully drafted comprehensive plan.48
When municipalities wish to zone with broad authority, the general welfare ambit is the most conducive criterion available to justify this exercise of power.49 Yet, in the early twentieth century, the general welfare criterion was considered narrowly in terms simply of health and safety.50 Moreover, municipalities originally adopted zoning ordinances with more limited purposes in mind, such as height, setback, and lot size requirements, and reduction of traffic congestion.51 Now however, zoning measures backed with general welfare reasoning “cannot be even colorably linked to health and safety.”52 Yet, such reasoning has passed judicial review.53
[*PG690] Courts determine which zoning ordinances go beyond the conferred authority; those that fail this test are invalid.54 As long as courts see a real or substantial relation between the ordinance and the public health, safety, morals or general welfare, a municipality’s legislative enactment enjoys a presumption of validity under the delegated authority.55 Courts place the burden of proof on the party challenging the regulations, in effect to disprove the stated connection to health, safety, and welfare.56
Still, a locality cannot enact regulations based on post-hoc justifications that function like “a few fig leaves of rationalization . . . decorously draped” on a zoning ordinance.57 To further demonstrate the connection between an ordinance and the Euclid criteria, a municipality can benefit by having a carefully formulated comprehensive plan that sets forth clear, well-defined standards for a reviewing court to consider.58 Even without a comprehensive plan, courts have ruled that there is a strong presumption in favor of the validity of an amendment, and if its reasonableness is debatable, the judgment of the local authorities will prevail.59 Critics argue that the presumption in favor of validity, along with the expansion of delegated authority, place the judiciary in a powerful position to validate current zoning schemes.60
The sticks in the bundle of property rights have changed over time.61 As early as 1851, courts recognized the limited nature of property rights.62 Chief Justice of the Massachusetts Supreme Judicial Court Lemuel Shaw asserted that implied restrictions are inherent in private property:
[*PG691]We think it is a settled principle, growing out of the nature of well ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of their property, nor injurious to the rights of the community.63
Still, municipalities must provide substantive due process for private property owners subject to zoning ordinances.64 The Fifth and Fourteenth Amendments limit the municipality’s power to regulate land use.65 Under the Fifth Amendment, the federal government cannot take private property for public use without due process of the law and just compensation.66 State and local governments face the same due process restriction.67 When property is taken for public use, municipalities compensate the property owner at market value rates.68
However, in Pennsylvania Coal Co. v. Mahon, Justice Holmes recognized the need for government’s power to periodically redefine the range of interests included in property ownership as necessarily constrained by constitutional limits.69 Police power must be restrained, he wrote, otherwise, without a restrained police power, “the natural tendency of human nature is to extend the qualification more and more until at last private property disappears.”70 State laws accord legal recognition and protection to the particular interest in land, usually in part a reflection of a private property owners’ reasonable expectations.71 Still, a property owner ordinarily expects property restrictions, when a locality regulates land use through the legitimate exercise of its police powers.72 Justice Rehnquist stated “[a]s long recognized, [*PG692]some values are enjoyed under an implied limitation and must yield to the police power.”73
Today, zoning ordinances often mark the starting point, or “baseline rules,” for development negotiations between localities, neighborhood groups, and developers.74 The municipality serves as arbiter, and also defines the standards that are used in reconciling the competing private and public interests.75 Increasingly, however, municipalities employ traditional zoning power to protect non-traditional goals in addition to the health, safety, and general welfare criteria defined in Village of Euclid.76 Proponents believe an extension of the municipal power beyond the general welfare purpose reflects common sense and practicality.77
For example, courts have difficulty at times justifying aesthetic considerations as a valid exercise of the police power, particularly under the general welfare purpose.78 When courts rule that aesthetic resources are protected, the judiciary interprets the general welfare prong broadly.79 In order to convince a court to employ broad general welfare reasoning, a municipality has needed to link the protection of a visual resource to a traditional zoning goal.80 For example, localities identified tenuous relationships between perceived eyesores such as billboards and traffic safety, a traditional Euclid criteria.81
[*PG693] Some jurisdictions concede that this reasoning used to zone for aesthetics amounts to a legal fiction, but still approve of the contested zoning ordinance.82 The Ohio Supreme Court, for example, stated:
Mere aesthetic considerations cannot justify the use of the police power. It is commendable and desirable, but not essential to the public need, that our aesthetic desires be gratified. Moreover . . . the public view as to what is necessary for aesthetic progress greatly varies. Certain Legislatures might consider that it was more important to cultivate a taste for jazz than for Beethoven, for posters than for Rembrandt, and for limericks than for Keats.83
The legal fiction also touches upon the metaphysical.84 In Berman v. Parker, the Supreme Court acknowledged that public welfare values “are spiritual as well as physical, aesthetic as well as monetary.”85
Municipalities are increasingly employing the power to zone in order to preserve character.86 Yet, case-by-case extensions by the judiciary fail to provide the citizenry with adequate notice of what is required under enabling legislation.87 Courts can use general welfare, therefore, as a “catchall to constitutionalize otherwise invalid purposes.”88 Therefore, critics argue that under the general welfare expansion, municipalities may exercise the police power with very little accountability to the people.89
In an effort to avoid claims of lack of accountability, municipalities may adopt comprehensive plans in an effort to identify both its community character and land-use objectives.90
The first critical step in zoning to protect and foster community character is to define the standards of a community.91 Communitarianism is one approach.92 In this ideology, individuals draw their identities from the community to which they belong.93 People participate in a community by engaging in “one another’s nature,” and therefore “the self is realized in the activities of many selves.”94 Members of a community change through this realization of “many selves,”95 and Communitarians believe that conceptions of property changes along with them.96 Such a transformation reflects fluid notions about the nature of people in the community.97
A community is a human-built ecosystem98, containing a certain “organic wholeness” that is not based on a specific type of building, or relation of buildings, but rather on a “whole menu of human values.”99 A community can be considered “a living organism” where both people and buildings create “a web of interdependencies.”100 This relationship contributes to the creation of a local economy.101 Typically, homes and neighborhood economies develop into a community’s two primary, definable elements.102
The home falls into a special category of property in the community, property “bound up with one’s personhood” and therefore tied to “one’s sense of continuity and personal identity.”103 The connection between personhood and property creates a community.104 In an effort to better define its community, a municipality must recognize “reverence for the sanctity of the home . . . [is] inextricably part of the individual, the family, and the fabric of society.”105
[*PG695] Localities could also use “consumer surplus” when defining the contours of its community.106 Consumer surplus reflects the intangible pride owners have in their homes.107 It is, however, mostly overlooked because it is difficult to define in quantitative terms.108 A high level of consumer surplus generally attaches to particular features of neighborhood ambiance.109 These “non-fungible” features are “almost priceless, especially for long-term neighborhood residents, bound up in one’s definition of self and sense of his or her place in the world.”110 Neighborhoods play a vital role in the development of modern urban life, creating an urban fabric to provide a community environment for development and maintenance of social relations.111
Defining community qualities is essential if a municipality wishes to create character-protecting zoning ordinances.112 By failing to do this, municipalities expose such ordinances to claims of arbitrary and capricious action.113 Ideals and characteristic traits that reflect a community’s character can vary widely among different localities. The definition should embody an awareness, consciousness and respect for the whole, not viewed as a threat to individual identities, which can create a community with “amenity, charm, and beauty” for its citizens.114 Municipalities face the demand, therefore, to develop consistent doctrines that both “satisfy the needs of society and justify the curtailment of property owners’ and possessors’ rights.”115
In zoning to protect community character, communitarianism, and consumer surplus, municipalities may face charges of crafting discriminatory zoning ordinances that simply maintain the status quo without letting new members into a community.116 Yet, some courts have validated zoning designed to protect a community’s overall “charm.”117 Critics of such findings believe acceptance of such vague standards creates limitless power for a municipality to define and shape its own character through zoning regulations.118 Most often, [*PG696]however, when a court approves zoning to protect community character, it justifies its holding by finding connections to more traditional general welfare reasoning.119
In General Outdoor Advertising v. Department of Public Works,120 the Massachusetts Supreme Judicial Court found sufficient support for ordinances that prohibited billboards.121 While the court stated that “the preservation of scenic beauty and places of historical interest would be sufficient support . . . considerations of taste and fitness may be a proper basis for actions in granting and in denying permits.”122 Yet, the court premised its reasoning on more than aesthetics.123 The court linked aesthetics with travelers’ safety, since they might become distracted by “the intrusion of unwelcome advertising.”124
Since intangible objectives such as aesthetics and character are so amorphous, municipalities have difficulty drawing a clear distinction between ideological aims and other permissible objectives.125 Many municipalities are exploring ways to preserve neighborhood integrity and pride in identifiable, ambient qualities.126 Public pressure is increasing for this protection.127 Moreover, many landowners perceive benefits from these restrictions.128 The government can limit or subordinate existing private land use, placing reciprocal duties and demands on all members of the community.129
Some scholars believe that the police power should offer protection when private ownership obscures common rights.130 The expanding scope of legitimate police power “exacerbates a growing clash in liberal ideology within natural resources law—between the need for individual autonomy and security, traditionally tied up in private property rights, and the demands of longer-term collectivist goals expressed in environmental protection and resource conservation laws.”131 Yet, a broad communitarian notion of general welfare re[*PG697]quires some consensus as to what is beautiful, in some locally understood way.132 This notion subsequently helps to define the very core of the community and encourages civic pride.133 A municipality may choose a course of action that appears most likely to protect the welfare of a current neighborhood and reinforce its community values, resources and institutions. 134
Comprehensive plans are a necessary step in promoting and protecting public values inherent in a community.135 When drafting a comprehensive plan, localities can acquire information, through questionnaires and interviews to gauge the issues and values that the municipality’s residents deem most important in their lives.136
A comprehensive plan can be the essence of zoning.137 Communities define their character with comprehensive plans, thereby shaping and protecting their identity through “a certain faculty of reflection.”138 Furthermore, communities can maintain their neighborhood character through common, implied and established expectations underlying the current state of the community, while at the same time generally recognizing private property rights.139
This recognition is the essence of property law.140 The legal system recognizes that “the idea of justice at the root of private property protection calls for identification of those expectations,” such as private property owners’ reasonable expectations of what they may do with their property.141 A comprehensive plan is a long-term general [*PG698]outline of projected development, and zoning is one set of tools used to implement the long-term plan and to recognize owner expectations.142 In part, municipalities grant private property owners notice of the reasonable expectations implied by the community’s current state of being.143
In an effort to set land-use goals, many state legislatures encourage municipalities to draft comprehensive plans.144 Most municipalities use a comprehensive plan as a “preliminary, sketchy, first-draft” version of their zoning ordinance.145 Notably, most localities did not have comprehensive plans when they passed their first zoning ordinances under enabling acts.146 Therefore, many municipalities retro-fit their comprehensive plan around zoning already in effect.147 In the best circumstances, a comprehensive plan creates an insurance policy for the municipality, in order to avoid challenges of unreasonableness when exercising their delegated zoning authority to regulate in the name of the public welfare.148 After nearly eighty years since Village of Euclid, there still is no clear definition of a comprehensive plan.
To create a comprehensive plan, a municipality typically enlists a planning commission to create a first draft.149 In addition, municipalities often also select urban planners to help, because they perceive that planners are less likely to let prejudices or short-term political considerations effect their work.150 However, many municipalities do not enjoy the luxury of a full-time planner and instead depend on part-time consultants or a voluntary board.151
[*PG699] Planners divide a comprehensive plan into several principal elements, including an inventory of built and natural assets, development of goals and policies, and a list of tools to use in reaching these goals and policies.152 The inventory focuses on assets including: a pattern of land uses, mass transportation design, street systems, park and recreational systems, and the location of affordable housing and public buildings.153 In their comprehensive plans, municipalities also include the locations of water supplies and sanitation facilities, boulevards and tree planting, transportation of goods, and market locations.154
In addition, comprehensive plans ideally address the division of developable lands, regulation of building height, structure area with relation to the size of lot, and use of structures on the land.155 Generally, professional planners agree that comprehensive plans should provide goals and objectives with respect to the communities’ desired future development.156 Lack of a comprehensive plan, and local legislative acquiescence to pressure groups or developers, allows tracts of land to pass into development with little thought towards long-term ecological or social consequences.157
Most importantly, the community benefits from the opportunity to gather and comment during the process, permitting zoning decisions to be based on the needs of the whole community.158 Moreover, by memorializing goals in a comprehensive plan, localities promote more honest and predictable dealings between their zoning bodies and private property owners.159 In this process, after drafting is complete, the locality’s legislative body votes to adopt the comprehensive plan.160
If a town has openly developed a comprehensive plan, the existence of that plan may sustain even burdensome land regulations dur[*PG700]ing judicial review.161 In the absence of the open communication required for a comprehensive plan, however, zoning for community character potentially endangers the creative freedoms of property owners and impinges their reasonable expectations.162 Ultimately, judicial review exists as a check on discretionary accountability.163 A court must test the validity of a zoning ordinance or by-law, to ensure that it complies with the terms and scope of the enabling statute and the comprehensive plan.164 If some rational relationship exists between the regulation and the objectives of the comprehensive plan, courts take a “fresh look” at a zoning scheme.165
Municipalities continually struggle to separate zoning from comprehensive planning, and planners always warn of the danger of confusing the two.166 Simply put, the locality can give notice of their self-defined community assets to the general public (and to a reviewing court) by authorizing the creation of a comprehensive plan.167 By failing to use a comprehensive plan to its full benefit, a locality may lack notice and also fail to curtail market forces through a public plan for manageable development.168 Rational development through a comprehensive plan can aid in stabilizing and preserving property values.169 Yet, while legislatures encourage local governments to develop comprehensive plans, many states do not require them by statute.170
Comprehensive planning is becoming more critical for cities and metropolitan areas due to increased pressure on land resources.171 [*PG701]For instance, Massachusetts loses forty-four acres a day to “sprawl.”172 According to the Environmental Protection Agency, although Massachusetts’s population growth has been less than five percent during the last fifteen years, land use has increased twenty-five percent.173 Moreover, eighty percent of construction in America has been built in the last fifty years.174 Private property owners are destroying existing, humble homes at a record rate in order to construct today’s fashionable “bigger-is-better” homes.175
In response, some California towns have ordered temporary halts to single-family demolitions, until these municipalities “rethink” their regulations.176 The East Coast is experiencing the same phenomenon: Greenwich, Connecticut, long a desired location for the wealthy, issued fifty-seven permits in 1999 to demolish existing homes, compared to fifteen in 1994.177 The current sustained economic boom has resulted in development pressure, pushing municipalities to consider adopting innovative solutions forged in the public interest.
By creating legislative history, comprehensive plans protect these solutions since all considerations identified during drafting become part of the record.178 Finally, the community’s definition of self helps to shape the contours of how that community is willing to act on behalf of the public interest. If the public interest is at the heart of a comprehensive plan, towns may consider an expansion of the police power as a justification to zone, rather than having to rely on classic Euclidean general welfare criteria.179 Municipalities may look to the police power’s Roman law origins to better understand the appropriateness of the police power expansion.
Laws crafted to protect the public interest are rooted in Roman law. Legislators, jurists, and policymakers have all gained inspiration from the teachings of Roman law.180 Furthermore, Roman law functions as “a useful model of doctrinal purity,” that some scholars believe modern society should follow.181 Both the police power and Public Trust doctrine share a common foundation in Roman Law.182 Moreover, English law also acknowledged the interrelation between these doctrines.183 Finally, in the United States, both doctrines developed in alliance with the public interest.184
An organized legal system developed under Roman law.185 Justinian, the Emperor from the East, commissioned legal works to memorialize the Roman legal system.186 Justinian’s relevance continues today because he collected, printed, and preserved Roman law just as the ancient world was beginning to crumble, leaving merely remnants of the developed society for reference.187 In 533 A.D., Justinian commissioned an elementary textbook for students, The Institutes.188 Although Justinian only hoped to settle outstanding controversies and formally abolish obsolete institutions with this text, Justinian’s contemporaries regarded The Institutes highly.189 The Institutes was not case law but a treatise, containing a civil code and a summary of contemporary legal scholarship.190
[*PG703] Of particular note, The Institutes examined the development of two branches of public and private law: res publicum and res privatum.191 Under res privatum, a complex classification system of property rights existed, including seisin, the natural rights inherent to property.192 Seisin included protection against interference with a private property owner’s use or enjoyment of property, a concept still strong today.193 Roman law also organized additional property classifications under separate categories, with two classifications key to the relationship between the police power and the Public Trust doctrine: jus regium and jus publicum.194
Like today’s police power, jus regium in Roman law was the sovereign right to manage resources for public safety and welfare.195 Justinian also defined the royal prerogative, where the sovereign held and safeguarded the shores and navigable rivers for the common use and benefit of the public as the jus publicum.196 On the other hand, jus publicum allowed the government to hold certain common properties, such as rivers, the seashore and the air, for public use.197 A lesser classification also existed, jus privatum, granting private rights of use and possession, which was also subject to the jus publicum.198 For in[*PG704]stance, the sovereign could grant jus privatum title to a subject, a grant conferring privileges and benefits subject to the jus publicum.199
Another Roman property classification important to the development of the Public Trust doctrine, res communes, reinforced jus publicum by declaring some property “common to all.”200 Romans endowed this classification with particular importance since their society depended on commerce related to the sea.201 Private interest could not monopolize vital resources, like the sea, to the detriment of the rights of the general population under res communes.202
The English incorporated Roman concepts of common property and public rights into both the Magna Charta and the English common law.203 In his 13th century work De Legibus et Consuetudinibus Angliae, the legal scholar Bracton first introduced Roman law by interpreting Justinian’s Institutes as a declaration that the sea and seashore were common to all.204 Scholars believe that Bracton relied on Roman law, but that he also amended the historical precepts to create a rule of law he perceived to be more desirable than a strict reading of Roman law.205 Nonetheless, Bracton’s contemporaries emulated and relied upon his scholarship.206
Besides recognizing res communes classifications, English law acknowledged jus regium and jus publicum.207 In his First Treatise, Sir Matthew Hale further refined Bracton’s interpretation of Roman law, describing the jus regium as the “prerogative intereste... that right which peculiarly belonges to the Kinge as the supreme magistrate, and this is [*PG705]uncomunicable to any subject.”208 This right, Lord Hale stated, was “lodged” in the Crown in order to attain safety for the kingdom, protect commerce and trade, and safeguard the revenue of the Crown and his subjects.209 In distinguishing jus regium and jus publicum, Lord Hale believed the sovereign held a duty to protect and preserve the jus publicum because the Crown protected public rights under jus regium (those duties that a sovereign owed to its people).210
With a focus on coastal resources and the commerce it created, Lord Hale defined the jus regium as encompassing the police powers of the sovereign, the ability of the Crown as sovereign to manage the kingdom’s resources for public safety and welfare.211 Lord Hale introduced the concept of jus publicum, the idea that no one, not even the Crown, could destroy or alienate certain public rights in property.212 The sovereign defends any public rights existing in privately held land under his jus regium.213 So, in early English common law, the Crown held title to tidal lands and waters for public benefit.214 English lawyers cited the passage in Justinian’s Institutes promoting res communes: [*PG706]“[b]y natural law, these things are the common property of all: air, running water, the sea, and with it the shores of the sea” to support the Crown’s dominance over these properties.215
The New World colonies succeeded to the Crown’s interests after the Revolution.216 Like the King, the colonies (and then the states) held these lands in trust for the benefit of the public.217 Under Royal charters, England granted colonies title to both jus publicum and jus privatum lands, as well as the right to regulate such lands under the jus regium.218 After the American Revolution, these property interests, and the related police power and Public Trust doctrine, passed to the newly created states and have remained in the purview of state law.219
In 1842, the Supreme Court resolved the succession of power from the Crown to the colonies, and ultimately to the state governments as representatives of the people.220 The dispute in Martin v. Waddell focused on the right to cultivate oyster beds in mudflats.221 The Court ruled that the “letters patent” handed to the Duke of York from his brother Charles II did indeed carry with it all rights of the sovereign.222 Moreover, since New Jersey was now sovereign, it held the jus regium in the land underlying the waters.223 The jus regium followed the public character of the property, as it was held by the whole people for purposes in which the whole people were interested.224 This right was further defined in Commonwealth v. Alger, when the Massachusetts Supreme Judicial Court established that the jus regium was a royal prerogative.225
In the United States today, police power centers on the dual goals of securing and promoting the public welfare with both regulatory restraints and compulsions.226 The Supreme Court affirmed that the police power should be exercised on behalf of the public interest.227 States secure this role by reserving sovereign power over “all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the state.”228 States delegate police power to municipalities, in place of specific statutory provisions.229 A municipality may only exercise this power in the public interest and in a way rationally formulated and impartially administered to attain the desired purpose.230 Even with appropriate means, the state’s police power encroaches on private property ownership.231
The police power evolved in response to increased societal concern.232 Even in Village of Euclid, Justice Sutherland understood that the scope of the application of the police power “must expand and contract to meet the new and different conditions.”233 Courts have broadened legitimate police power goals in a more flexible embrace of preservation goals, an end result that is in the public interest at large.234 Courts find it harder to define the police power given this flexibility.235
Despite Justice Sutherland’s view in Village of Euclid, courts generally construed the police power narrowly in the early 20th century.236 At that time, scholars suggested natural resource conservation and aesthetic protection fell outside the confines of the police power’s [*PG708]traditional health and safety concerns.237 However, in time, regulation of both land and commerce has increased, and the impact of the police power on private ownership can, in Professor Sax’s words, hardly be ignored.238
Justice Holmes acknowledged the potential “petty larceny of the police power.”239 In Pennsylvania Coal v. Mahon, he warned of the police power’s erosive effects on private property: “the natural tendency of human nature [would be] to extend the qualification more and more until at last private property disappear[ed].”240 A more expansive view of the police power does result in the further narrowing of private property rights and its corresponding scope of private expectations.241 The Supreme Court recognized the difficulty in placing real limits on the police power in Berman v. Parker.242 Justice Douglas wrote that “an attempt to define [the police power’s] reach or trace its outer limits is fruitless for each case must turn on its own facts. . . . Yet they merely illustrate the scope of the power and do not delimit it . . . the concept of the public welfare is broad and inclusive. . . .”243
The police power developed into an elastic construct, “neither abstractly nor historically capable of complete definition.”244 Police power regulations “mirrored” the public property doctrine.245 The police power allows allows property regulation, which in turn protects the part of the economoy tied to real estate interests (such as real estate development or a business’s ability to control rental expenses).246
The private landowner always held land subject to a common right, even if the right was not fully exercised to the broad expansion of today’s general welfare power.247 Every member of the community submits to these regulations, though not all are affected by them.248 [*PG709]Nonetheless, a reciprocity exists because all members of the community have similar obligations.249 The police power creates protections for the public when individual interests need to yield to general social interests because of social, economic, and political conditions.250 Therefore, when a municipality places restrictions on land, it is acting as a sovereign, in the public interest, exercising its jus regium.251
Today, scholars and jurists recognize that the Public Trust is a common law principle with constitutional dimensions, because it restricts the power of state legislatures.252 In 1821, an American court first suggested the concept of the Public Trust in Arnold v. Mundy.253 The New Jersey Supreme Court stated that “the wisdom of [the common] law has placed it in the hands of the sovereign power, to be held, protected and regulated for the common use and benefit.”254 But the court also recognized the relation to the jus regium of the police power in setting the lands aside.255
In this case, which focused on the ownership of oyster beds, Chief Justice Kirkpatrick stated that legal title to common property vested at the Revolution in “the people.”256 The people then passed this power to their representatives in the legislature. This power
that is nothing more than what is called the jus regium, the right of regulating, improving, and securing for the common benefit of every individual citizen. The sovereign power itself, therefore, cannot consistently with the principles of the law of nature and the constitution of a well ordered society, make a direct and absolute grant of the waters of the state divesting all the citizens of their common right.257
[*PG710] The Supreme Court crafted the classical concept of the Public Trust in American jurisprudence in Illinois Central R.R. Co. v. Illinois.258 In this case, the Court voided the Illinois state legislature’s grant of more than 1,000 acres of lakeshore property in the City of Chicago to the Illinois Railroad Company.259 Justice Field wrote that the legislature failed in its role as trustee for this land because “trusts connected with public property, or property of a special character, like lands under navigable waters. . .cannot be placed entirely beyond the direction and control of the state.”260 Such property, Justice Field wrote, is subject to the “public concern to the whole people of the state . . . and cannot be alienated . . . without detriment to the public interest. . . .”261
In Illinois Central R.R. Co., the Supreme Court also associated the Public Trust with the jus regium.262 Justice Field reiterated the words of Chief Justice Taney in Martin v. Waddell:263
the power exercised by the state . . . is nothing more than what is called the jus regium, the right of regulating, improving, and securing them for the benefit of every individual citizen . . . ‘[t]he sovereign power itself, therefore, cannot, consistently with the principles of the law of nature and the constitution of a well-ordered society, make a direct and absolute grant . . . divesting all the citizens of their common right. It would be a grievance which never could be long borne by a free people.’264
However, Justice Shiras, in the dissent, disagreed with the connection of the jus regium with the jus publicum.265 He stated that the extent of a grant and its resulting effect on the “public interests” in the property are matters of legislative discretion.266 Nonetheless, the Court’s majority recognized the symbiotic relationship between the police power and the Public Trust doctrine.267
[*PG711] Thirty years ago, legal scholars revitalized the essentially dormant Public Trust doctrine.268 During the reinvigoration of the Public Trust doctrine in the early 1970s, scholars pointed to Roman law for historical support for the theory that certain public interests are “so intrinsically important to every citizen” that they must continue in today’s legal system.269 The historical role of the Public Trust was to provide a public property basis for resisting the exercise of private property rights in natural resources that was deemed contrary to the public interest. The historical role came back into vogue.270
The Public Trust doctrine relies on judicial review and judge-made principles.271 Parties allegedly violating the Public Trust face three categories of claims: (1) private citizens suing the government; (2) private citizens suing other private parties; and (3) the government suing private parties.272 However, litigation focusing on the Public Trust imposes a “destabilizing disappointment of expectations held in common but without formal recognition such as title.”273 Simply put, there is a notice problem.274 In his seminal work on the Public Trust, Professor Joseph Sax argues that at some point courts should hold private property owners responsible for knowing that “historical protection and open-space preservation [are] important public values and that they [are] increasingly being protected to the detriment of landowners.”275 Therefore, Professor Sax concludes, courts should not be sympathetic to property owners’ claims of reasonable expectations being usurped by the Public Trust doctrine.276
Flexibility is an essential characteristic of the Public Trust doctrine.277 The Public Trust, however, is less flexible than the police power, perhaps because of the substantive mandate of the police power.278 In the last fifteen years, municipalities have invoked the Public Trust doctrine in the majority of cases brought to resolve disputes.279 In contemporary cases, the Public Trust represents an op[*PG712]portunity for after-the-fact democratization of the process of zoning and development.280
The conflation of the Public Trust doctrine and the police power started with The Institutes.281 When classifying property into distinct categories particularly critical to the relationship between the police power and the Public Trust doctrine, Justinian imbued both doctrines with the public interest.282 This common bond decreed the necessity that the sovereign act for the public good.283 The Institutes defined a jus regium shaped by the sovereign’s royal right to manage resources for public safety and welfare.284 This is the root of today’s police power.285 In Roman law, the Public Trust also reflected a similar public interest purpose.286 Even the grant of land subject to a jus privatum title was still conditioned on jus publicum concerns.287
The English continued the jus regium and jus publicum doctrines proposed by Justinian in their common law.288 When Lord Hale, who was both renowned by contemporaries and respected by later legal theorists, adapted Bracton’s interpretation of The Institutes, it received additional strength.289 The rules laid down by Lord Hale have always been understood as the governing rules “recognized by the courts of justice as controlling doctrines.”290 Lord Hale saw a connection between jus publicum and jus regium: the sovereign had a duty to protect and preserve the jus publicum because the Crown protected public rights under his jus regium, the duties that a sovereign owed to its people.291
[*PG713] The Public Trust doctrine is in one way much more limited than the police power. With the Public Trust, courts determine if the land contains water interests when deciding which land the trust applies to and which land it does not.292 Courts trace this distinction back to Justinian.293 The Public Trust doctrine treats as trust property those with water interests, such as sea shores or river banks.294 Water interests were critical because Romans depended upon the sea for commerce.295 The police power is not limited by such distinctions.296 The jus regium applies to all lands within the border of the sovereignty.297
The role of the sovereign is a key element that both the Public Trust and police power have in common.298 Justinian defined the royal prerogative, which developed into the police power, as the jus regium that the Crown holds to safeguard shores and navigable rivers for the common use and benefit of the public.299 Yet, the jus regium is not limited to lands with water interests.300
The history of delegation is also similar for both doctrines.301 Delegation traveled from the English crown, to the colonies through royal charters, and then to the people after the Revolutionary War.302 The Supreme Court settled this succession, giving the people control of the police power and in effect allowing them to define its contours.303 Effectively, however, the sovereign holds the police power in trust for the people. The reasons for this are pragmatic. In order to have a well regulated society, the government must exercise the police power through regulations and ordinances.304 Yet, the people can define the police power in part through a well drafted comprehensive plan.
The Public Trust doctrine never grants the same full delegation power to the people. Although the sovereign holds the trust lands for the people, the sovereign exercises the power on their behalf, just as the [*PG714]sovereign holds the police power.305 The right of regulation follows from the public interest of all property, just as the Public Trust doctrine does with those properties with water interests.306 The police power has no such limitations.307 Both fall under the sovereign’s interest in managing resources for the public benefit.308
Today, every citizen submits to regulation.309 Municipalities, in their sovereign role, act in the public interest by managing the Public Trust and by exercising the police power.310 Moreover, the sovereign cannot alienate either jus publicum or jus regium, especially because the public’s interest is such an intrinsic element.311
The judiciary plays a significant role in defining the scope of both doctrines.312 Courts have broadened legitimate police power goals in a more flexible embrace of preservation goals, an end result that is in the public interest.313 The Public Trust was first recognized by the judiciary in Arnold v. Mundy.314 While some states have now codified the Public Trust, the judiciary, urged by legal scholars, has been at the forefront of crafting the contours of the Public Trust.315
Jus regium and the Public Trust doctrine were fused in nineteenth century jurisprudence.316 In fact, cases that discussed the jus regium were often premised on claims of the Public Trust doctrine.317 The [*PG715]Supreme Court also discussed the distinction in using either the jus regium or the Public Trust to decide a case.318 The Illinois Central majority viewed the Public Trust as the appropriate tool to invalidate the transfer of title to the railroad.319 The dissent, however, believed similar action could be accomplished instead with the police power.320
Both doctrines have enjoyed a recent expansion of powers.321 The police power has evolved in response to increased societal concern.322 The application of police powers “must expand and contract to meet the new and different conditions.”323
The police power’s expansion has been under the “general welfare” ambit of Village of Euclid.324 Some argue that the police power is not definable.325 This criticism is less relevant once a connection between the Public Trust and the police power is understood.326 The police power, like the Public Trust, is exercised for the public good, for a public purpose.327 Moreover, in the face of natural resource depletion and desired aesthetic protection, municipalities may want to employ the police power beyond general welfare concerns to deal with public interests.
In using the police power in this broad way, municipalities can avoid charges of arbitrary and capricious acts. The police power’s public purpose intent can be further defined when a municipality adopts a comprehensive plan.328 To avoid successful challenges to zoning ordinances, municipalities should flex police power limits by identifying the expectations of private property owners.329
A comprehensive plan memorializes those definitions to promote and enhance their community character.330 Without this open communication, municipalities will be hard pressed to conduct honest [*PG716]dealings with private property owners.331 And if the zoning ordinance is struck down because reasonable expectations are not met, it also fails because community members were not given sufficient notice of standards through the comprehensive plan goals.332
The Public Trust was revitalized by Professor Joseph Sax in the 1970s.333 While Sax originally premised his theory on the ability of citizens to step in and force government action, most cases now are brought by the government.334 The main critique of the recent expansion of the Public Trust is two-fold. First, it is most often a judge-made doctrine.335 Secondly, private property owners are caught off guard, not knowing that they are essentially missing property rights.336 At some point, as argued by Professor Joseph Sax, important public values will demand that protections increase, even if at the detriment of private property ownership.337
The police power can overcome the criticisms aimed at the Public Trust. First, the judiciary need not define the police power as it does the Public Trust. Instead, the municipalities should define it, both by working within the public interest and by defining those interests through a comprehensive plan. Secondly, the private property owner may participate in that definitional exercise and therefore would be hard pressed to argue in good faith that the comprehensive plan unreasonably impinges on ownership expectations. Moreover, the municipality should argue that the private property owner had reasonable notice of the police power through the current community condition and ambiance.
Both of these expansions are responses to changing conceptions of property.338 There are indeed fewer “sticks in the bundle.”339 The [*PG717]essence of property law is respect for reasonable expectations,340 yet increased demand on resources places these reasonable expectations at risk.341 An ambiguous general welfare standard simply cannot protect the public interest with definable, limitable goals, but the police power can.
Both expansions are also in response to growing demands on resources and land.342 Perhaps this growth is appropriate. Public lands, whether public because affected by public regulation or because part of the Public Trust, is in fact valuable because of its “publicness.”343 If constituents so value this public land, municipalities will face demands of property protection in the face of resource depletion.
This conflation of the Public Trust and the police power is the correct course. The expansion of police power need not be unnaturally linked to the Village of Euclid criteria.344 Inherently, the police power contains a public purpose element that can be better defined than an ad hoc, rationalized connection to the general welfare criterion.345 When municipalities place restrictions on land, they are acting as sovereigns, in the public interest, exercising their jus regium.346 Police powers do erode private property rights, but states can limit that erosion by compelling municipalities to act in the public interest by defining their police power in part through comprehensive plans.347
By properly acknowledging the roots of the police power,348 municipalities can only act within the public purpose rationale. Both expansions are reasonable, given common roots in public purpose. Such a distinction may seem like splitting hairs, the difference between the public interest and general welfare is one just of degree. But a municipality’s ability to define the limits of the public interest, including nurturing community character, under the police power is an achievable goal, particularly with comprehensive plans. The reasonable ex[*PG718]pectations of private property owners cannot be violated because the community members define those expectations, such as fostering neighborhood ambiance, through a comprehensive plan.349 Still, municipalities must stay within their delegated authority, a public interest foundation which makes the municipality a trustee of public interests, as it does with the Public Trust doctrine.350
Municipalities should zone under the public interest element of their police power rather than the general welfare criterion from Village of Euclid. In turn, the judiciary needs to recognize the Roman foundation of the police power, just as they acknowledged the same foundations in Public Trust cases. By recognizing the connection between these doctrines, the judiciary would encourage municipalities to define the contours of the police power in a more effective manner than through the general welfare criteria. A locality can recognize the unique qualities of its community through comprehensive plans. Still, communities should not view this as an opportunity to disregard important public interest elements that contribute to the community character, like neighborhood businesses and well-planned, affordable housing. Armed with a well-defined police power mandate and an honest assessment of all community needs, municipalities must instead zone in the public interest. Localities should include in that mandate prescriptive zoning measures to protect and nurture their community character.