Governmental regulation often determines how a parcel of privately owned real estate may be used, to whom it may be sold, and the responsibility of present and prior owners to the public, to neighbors, and to future owners. The state and federal constitutions contain some limits on government power ("due process" and "takings" provisions); others arise from common law; but the effectiveness of any limit depends on the philosophy of regulators and courts.

This course will examine some traditional land use controls and some newer, site oriented environmental controls and their limits. It will focus on how these controls can affect the purchase, use, sale, and financing of real estate.

Traditional controls include subdivision, zoning, and building codes. Among the site oriented controls are those based on existing land characteristics (e.g., agricultural lands, archaeological lands, coastal areas, flood plains, historic sites, public lands (e.g., parks, forests, monuments, wilderness areas, wildlife refuges, recreation areas, trails), wetlands, wild & scenic rivers) or the presence of endangered, threatened, and other plant and animal species. Other site oriented regulations are designed to control land (e.g., Resource Conservation & Recovery Act, Comprehensive Environmental Response, Compensation, and Liability Act/Superfund Amendments and Reauthorization Act) and water based (Clean Water Act) waste disposal activities.

At one level, we will ask: What values may society protect? How? Are there limits to this protection? At another level, the questions will be: How does a site become subjected to special regulation? What are the consequences for the site's owner, user, buyer, seller, their lenders, for the site's neighbors, for the public at large? Who can impose protective controls?

As a starting point, consider the problems facing this developer in seeking to make a new industrial use of his riverfront property:

      The proposed site of the facility lies within the Warsaw Historic District (part of the National Register of Historic Places) and includes a noteworthy brewery complex, dating from 1868. The sites lies near the Fort Edwards State Historic Monument, the westernmost frontier post in the War of 1812 and now a scenic outlook and abuts a portion of the Great River Road, a National Scenic Highway along the Mississippi River. The proposed truck route between the Freeman Mine and this facility would pass through three state and private nature reserves totaling some 900 acres, and through a Western Illinois University life-science field station. These preserves are sanctuaries for many species of wildlife and serve as a major wintering area for bald eagles, with at least 50 eagles present in each recent winter and more than 450 in the winter of 1978-79. . . .

Van Abbema v. Fornell, 807 F.2d 633, 635 (7th Cir. 1986).