312 suffice it to say that similar cases involving a

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312 Suffice it to say that similar cases involving a state’s efforts to re- serve its fish and game for its own inhabitants are likely to be chal- lenged under commerce or privileges or immunities principles, rather than under substantive due process. 305 Manchester v. Massachusetts, 139 U.S. 240 (1891); Geer v. Connecticut, 161 U.S. 519 (1896). 306 Miller v. McLaughlin, 281 U.S. 261, 264 (1930). 307 Bayside Fish Co. v. Gentry, 297 U.S. 422 (1936). See also New York ex rel. Silz v. Hesterberg, 211 U.S. 31 (1908) (upholding law proscribing possession during the closed season of game imported from abroad). 308 Geer v. Connecticut, 161 U.S. 519, 529 (1896). 309 See , e.g. , Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1 (1928) (invalidat- ing Louisiana statute prohibiting transportation outside the state of shrimp taken in state waters, unless the head and shell had first been removed); Toomer v. Witsell, 334 U.S. 385 (1948) (invalidating law discriminating against out-of-state commer- cial fishermen); Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284 (1977) (state could not discriminate in favor of its residents against out-of-state fishermen in fed- erally licensed ships). 310 441 U.S. 322 (1979) (formally overruling Geer ). 311 441 U.S. at 336, 338–39. 312 Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371 (1978). 1896 AMENDMENT 14—RIGHTS GUARANTEED
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Ownership of Real Property: Rights and Limitations Zoning and Similar Actions. —It is now well established that states and municipalities have the police power to zone land for des- ignated uses. Zoning authority gained judicial recognition early in the 20th century. Initially, an analogy was drawn to public nui- sance law, so that states and their municipal subdivisions could de- clare that specific businesses, although not nuisances per se , were nuisances in fact and in law in particular circumstances and in par- ticular localities. 313 Thus, a state could declare the emission of dense smoke in populous areas a nuisance and restrain it, even though this affected the use of property and subjected the owner to the ex- pense of compliance. 314 Similarly, the Court upheld an ordinance that prohibited brick making in a designated area, even though the specified land contained valuable clay deposits which could not prof- itably be removed for processing elsewhere, was far more valuable for brick making than for any other purpose, had been acquired be- fore it was annexed to the municipality, and had long been used as a brickyard. 315 With increasing urbanization came a broadening of the philoso- phy of land-use regulation to protect not only health and safety but also the amenities of modern living. 316 Consequently, the Court has recognized the power of government, within the loose confines of the Due Process Clause, to zone in many ways and for many pur- poses. Governments may regulate the height of buildings, 317 estab- lish building setback requirements, 318 preserve open spaces (through density controls and restrictions on the numbers of houses), 319 and preserve historic structures.
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