Washington Law Review


The first part of this comment examines the test of balancing private loss against public gain to establish the conceptual basis for analyzing its proper uses. The test is shown to require that land use regulations serve the general welfare and that the public benefits alone, without consideration of incidental private benefits, be sufficient to justify the burdens placed on private property. Part II presents the essential characteristics of the due process and taking without compensation limitations as they have been construed by the United States Supreme Court and developed by other courts and commentators. It is shown that the prevailing approach to the taking issue, which allows some private property rights to be diminished without compensation, requires two distinct constitutional limitations on state action. One provides a check on arbitrary or improper action whether or not compensation is required, and the other limits the permissible reduction of property rights without compensation. Finally, Part III examines the justification in United States Supreme Court precedent and legal theory for either use of this test. It resolves the conflicting interpretations of Pennsylvania Coal Co. v. Mahon and shows that balancing private loss against public gain should be used only to test for a violation of due process and not for a taking without compensation.

First Page