Powers and Limitations

Just as state governments grant powers to local governments, they also can and do impose obligations on them. Local governments are also guided and limited in their actions by rights guaranteed to individuals by the U.S. Constitution or by state constitutions. When there is disagreement over issues of individual rights or the extent of government power, the ultimate arbiter is the court system. Local planning efforts are thus limited by what the courts will allow or what local officials, property owners, and other concerned parties believe the courts might allow were the issue at hand put to a legal test. In many cases, local planning efforts are also influenced by what the courts require local governments to do.

Early planning efforts such as the Plan of Chicago often took place in the absence of any specific planning framework. In the Chicago case, the plan was formulated by a group that had no legal mandate or authority and that, in essence, delivered the plan as a gift to the city. The plan was implemented by the city through exercise of the normal powers of government. Specifically, the city used its powers to levy taxes and to issue bonds to raise funds, which were used to finance projects called for in the plan. The power of the city to enter into contracts was used to acquire properties in voluntary transactions. Where that did not avail, the city's powers of eminent domain were used to acquire property through condemnation.

The power of eminent domain is important and deserves a brief explanation. The phrase means that government has the right to take property for public purposes. The building of roads, for example, generally involves the taking of private property for the right-of-way. When government takes property, it must compensate the owner for the value of what is taken.

If agreement cannot be reached between government and property owner, the matter goes to court. After hearing expert testimony, the court then determines the value of the loss imposed on the property owner by the act of taking. That value, the condemnation award, must then be paid to the property owner by the government. The eminent domain process is an example of the exercise of government power subject to limitation by the constitutional rights of individuals. Specifically, the taking clause of the Fifth Amendment states, "nor shall private property be taken for public use, without just compensation"—hence the necessity for the condemnation award. The Fourteenth Amendment states that no person shall be deprived of "life, liberty, or property without due process of law"—hence the requirement for a judicial procedure should voluntary agreement not be reached. The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures." Thus the taking of property for a trivial purpose would not be sustainable in court.

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