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[Environment] - Preservation and Management of Californiaäó»s Coastline, September 1972 (1 of 3)
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[Environment] - Preservation and Management of Californiaäó»s Coastline, September 1972 (1 of 3)
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Ronald Reagan's Governor's Papers of the Press Unit
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Reagan, Ronald: Gubernatorial Papers,
1966-74: Press Unit
Folder Title: [Environment] - Preservation and
Management of California's Coastline,
September 1972 (1 of 3)
Box: P36
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
PRESERVATION and MANAGEMENT
of
CALIFORNIA'S COASTLINE
A Critical Analysis of The California
Coastal Zone Conservation Initiative of 1972
KAHL ASSOCIATES and
RALPH ANDERSEN AND ASSOCIATES
PRESERVATION AND MANAGEMENT
OF CALIFORNIA'S COASTLINE
A CRITICAL ANALYSIS OF THE CALIFORNIA
COASTAL ZONE CONSERVATION INITIATIVE OF 1972
September, 1972
Prepared by:
KAHL ASSOCIATES - Research Consultants
Suite 805
Government and Public Affairs
1101 17th Street, N. W.
Washington, D. C. 20036
RALPH ANDERSEN AND ASSOCIATES
P.O. Box 13278
Sacramento, California 95813
Technical Support in Selected Areas Provided By
The Government Research Company
Washington, D. C.
Table of Contents
Page
Introduction
1
THE LEGAL PERSPECTIVE.
5
Land Use Planning
5
General
5
National Land Use Planning
5
State Land Use Planning and Regulation
8
Regional and Metropolitan Planning
10
Police Power
12
Basic
12
Zoning
13
Subdivision Regulations
15
Building and Housing Codes
17
Initiative and Referendum
18
Constitutional Limitations
19
Police Power V. Inverse Condemnation
20
Pre-emption
23
Summary
23
SUMMARY OF THE CALIFORNIA COASTLINE INITIATIVE
25
Summary of Provisions
25
Who Would Serve on the Commissions?
25
What Would the Commissions Do?
29
What is the Nature of the California Coastal Zone
Conservation Plan?
30
How Would the Interim Permit Procedure Work?
32
General Provisions
32
Specific Review and Appeal Procedures
37
Other Provisions
38
Amendments
38
Termination
38
Conflict of Interest
38
Penalties
39
CURRENT POLICIES AND PROGRAMS FOR LAND USE CONTROL
The Federal Role
40
Management Programs
41
Bureau of Land Management
42
Fish and Wildlife Service
43
National Park Service
44
Forest Service
44
Transfer of Federal Lands to State and Local
Governments
44
i
Page
Inter- and Intra-Governmental Cooperation
45
Environmental Protection Act.
47
Regulatory Programs
48
Corps of Engineers
48
Coast Guard
49
Atomic Energy Commission
49
Development Programs
50
Transportation
50
Administration
50
Budget
51
Proposed Changes
51
Water and Sewer
52
Office of Water Programs
52
Department of Housing and Urban Development
53
Public Facility Loans
53
Economic Development Administration
54
Farmers Home Administration
55
Other Development Programs
56
Planning Programs
57
701 Planning Program
57
Authority
57
Administration
58
State Agencies
58
Budget
58
Proposed Changes
59
Outlook
59
Water Resources Planning Council
59
Authority
59
Administration
60
Budget
60
Bureau of Outdoor Recreation
60
Economic Development Administration
61
Legislation
61
Land Use Policy and Assistance Act of 1972
(S632)
62
Sanctions
63
Federal Role
64
Inter-Agency Cooperation
64
Federal-State Cooperation
64
State-Local Role
65
Outlook
66
National Land Policy and Management Act of
66
1972 (HR 7211)
66
Private Lands
ii
Page
Public Lands
67
Review of Public Lands
68
Outlook
68
National Resource Lands Management Act (S2401)
69
National Coastal Zone Management Act (S3507)
69
Administration
70
Budget Authorization
71
Federal-State Cooperation
71
Coastal Zone Management Act (HR 14146)
71
Outlook
72
Summary of Legislation
72
The State Role
76
Introduction
76
Direct Statewide Control
77
Hawaii
77
Administration
77
Controls and Criteria
78
Assessment
80
Vermont
82
Administration
82
Controls and Criteria
84
Assessment
87
Maine
89
Administration
89
Controls and Criteria
90
Assessment
92
Statewide Criteria and Standards
94
Colorado
94
Administration
94
Controls and Criteria
95
Assessment
97
Direct Statewide Control in Selected Areas
97
Massachusetts
97
Administration
97
Controls and Criteria
100
Assessment
102
Delaware
103
Administration
103
Controls and Criteria
105
Assessment
107
Other States With Selective Controls
107
Critical Areas
107
iii
Page
Wetland and Shoreland Laws.
109
Power Plant Siting
111
Statewide Criteria and Standards in Selected Areas.
111
Wisconsin
111
Administration
112
Controls and Criteria
113
Assessment
115
Florida
117
Administration
117
Controls and Criteria
119
Assessment
121
Summary - State Approaches to Land Use Control
122
The California Experience
128
Introduction
128
Cities and Counties
129
Authority
129
Planning
129
Zoning.
133
Open Space Planning
135
Subdivision of Land
135
Renewal and Redevelopment
139
Annexation
140
Program
140
General Planning Programs
140
Special Planning Programs
143
Preparation of Special Beach, Waterfront,
or Coastal Plan
144
Adoption of Special Zoning Ordinances for
the Coastal Zone
144
Preparation of Special Coastal Studies
146
Acquisition and Development
146
Outlook
146
Public Initiatives
147
Actions by Local and State Agencies
148
Regional Agencies
152
Bay Conservation and Development Commission
153
Authority
153
Program
154
Differences Between BCDC and the California
Coastline Initiative
155
Tahoe Regional Planning Agency
158
Authority
158
Program
160
Differences Between the Tahoe Regional Agency
and the California Coastline Initiative
161
iiii
Page
Ventura - Los Angeles Mountain and Coastal
Study Commission
162
Authority
162
Program
164
Outlook
164
Local Agency Formation Commissions
165
Councils of Government
166
Authority
167
Program.
167
Outlook.
170
State Agencies
171
Office of Planning and Research
171
Council on Intergovernmental Relations/Office of
Intergovernmental Management
175
State Lands Commission
176
Department of Parks and Recreation
178
Department of Navigation and Ocean Development
183
Department of Public Works
185
Department of Water Resources
188
Department of Fish and Game
190
Water Resources Control Board
192
Public Utilities Commission
193
Department of Conservation
196
Department of Public Health
197
Other
197
ANALYSIS OF INITIATIVE PROVISIONS.
199
What is the Coast?
201
Exclusion of Urban Areas
216
Effect on Comprehensive Planning
219
Effect on Public and Private Development
231
Representation of Local Areas
243
Lack of Uniformity
245
Administrative Problems
248
Fiscal Impact
251
Effect on Acquisition and Improvement of the Shoreline
254
Summary of Proposed Beach and Shoreline Expenditures
to 1990
259
Conclusion
263
CONCLUSION
268
APPENDIX
276
Text of California Coastal Zone Conservation Act
Initiative
1
COAP Summary - Coastal Land Use and Ownership
22
City of Long Beach Statistics for Initiative Permit Area
26
iiiii
MAPS
Page
California State Park System
182
Initiative Planning and Permit Areas
Los Angeles and Orange Counties
204
Permit Area as Defined by City of Long Beach
206
Difficulties with Definitions of "Planning Area"
and "Permit Area"
210
Comparison of BCDC Permit Area with Initiative
Permit Area for San Francisco Bay Area
212
Major Rivers and Waterways
213
Comparison of SCAG Boundaries with Initiative
Regional Commission Boundaries
228
Comparison of ABAG Boundaries with Initiative
Regional Commission Boundaries
229
iiiiii
INTRODUCTION
INTRODUCTION
A National and State policy for land use planning and control is now emerg-
ing.
The basic premise of this policy is that land can no longer be treated sol-
ely as a commodity to be used only at the discretion of a private owner.
Rather, land is now being increasingly viewed as a scarce resource and de-
cisions affecting its use are of public concern because they establish pat-
terns which can have a significant and comprehensive impact on entire reg-
ions, the State and the Nation. The control of land use is no longer viewed
as the sole prerogative of local government.
It is becoming increasingly recognized that land use decisions are a part of
the larger public decision-making process and must be balanced against other
broad public goals, whether they be social, economic or environmental.
California voters will be presented in November with a statutory initiative
which proposes to preserve California's coastal resources by severely limit-
ing all forms of development.
The Initiative proposes the creation of a Coastal Zone Conserva-
tion Commission and six regional commissions to prepare a coastline
plan for an irregular "Coastal Zone" and to closely regulate
development activities by a permit system applied to a 3000 foot
shoreline band as well as bays, estuaries and other areas subject
to tidal action, including a 1000 foot strip up many rivers and
waterways.
Development as defined in the initiative is not limited. The
term would include:
Placement or erection of any solid material or structure;
-1-
Discharge or disposal of any dredged material
gaseous,
liquid or thermal waste
extraction of any material;
Change in density or intensity of use of land
includ-
ing lot splits;
Change in the intensity of use of water;
Alteration of the size of any structure
Authority to grant permits for all forms of development is limited by
stringent environmental criteria.
Most authorities consider the question of land use as extremely complex
and involving basic issues of property rights, the proper role and author-
ity of local, state and federal governments, competing public goals, citi-
zen representation, tax policies and maximizing resources for the greatest
public benefit.
The Initiative attempts to confront these issues by focusing on a single-
purpose approach for resolving them on behalf of the highly desirable pub-
lic goal of environmental preservation. But the question of how to best man-
age California's coastal resources remains difficult to answer. Consequent-
ly, the voter is being asked to decide some fundamental questions:
How can California best manage its coastal resources for
maximum public benefit? Is it desirable to further com-
plicate public decision-making by adding to the confusing
multiplicity of jurisdictions? Is there a better way to
ensure that the important and critical questions are re-
solved to the advantage of regional, statewide and nation-
al interests rather than local parochial needs?
-2-
What perspectives are relevant to decisions relating to
land management. Can they be better integrated into a
comprehensive system which brings balance to the priori-
ties of many functional programs and needs of different
but related geographic areas?
How can the needs of the environmental crisis be balanced
against meeting the resource needs of other crises fac-
ing our nation: energy, mass transportation, housing,
unemployment, taxation and delivery of essential social
services?
What limitations should be placed upon individual prop-
erty rights of ownership and use in order to achieve a
stated "higher public goal"? Since limits on land sharp-
ly affect value, what constitutes citizen grievances
against "inverse condemnation" and "taking without com-
pensation"?
What are the effects of land use restrictions on the loc-
al property tax base? How can revenue losses to local
government and school districts be equalized or replaced?
Will California's statewide interests be adequately re-
flected in land use decisions by regional commissions?
Will these decisions be in concert with essential state
environmental improvement and resource planning programs
now in process?
These questions are of particular importance because of provisions contained
in the Initiative which prohibit its repeal and effectively prevent its
-3-
amendment by the Legislature.
Answers to questions such as those posed above are important because they
provide some indication of the ability of the Initiative to assure addition-
al preservation of California's environmental resources. However, they are
also important because they indicate to what extent the Initiative will en-
hance or detract from the goals and aspirations of all citizens regarding
their quality of life in general. Because we are dealing with an increas-
ingly complex and interrelated society each proposal for basic change, such
as that represented by the coastal initiative, must be evaluated in terms
of what it contributes to or detracts from the achievement of these social
goals.
The California Coastal Zone Conservation Act Initiative will be analyzed in
subsequent pages. Prior to this, however, an overview of related legal is-
sues and an insight into existing federal, state, and local activities in
the coastal area is presented in order to indicate the legal and governmen-
tal framework within which coastal programs are presently undertaken.
-4-
LEGAL
THE LEGAL PERSPECTIVE
LAND USE PLANNING
GENERAL
Land use planning is concerned principally with the physical environment.
Its objective is to provide for the orderly use and development of land
in the best interest of the public health, safety and welfare and to fac-
ilitate the achievement of social and economic objectives, and the protec-
tion of natural resources. Land use planning in the first half of the
nineteenth century was almost entirely a function of local governments.
The principal sources of land controls have been zoning and subdivision
laws enacted under the police power. Other means of regulating land use
include the power of eminent domain for acquisition of private land for
public use, building and housing regulations, urban renewal and redevelop-
ment laws. More indirectly, but of perhaps even greater importance are
the effects of taxation, and annexation and incorporation laws on land use.
In recent years, the extent of land use planning by other levels of govern-
ment has grown greatly. National, state and regional involvement in land
use planning is increasing rapidly and constitutes a major determinant of
land use controls. A brief review of the authority of federal, state, and
regional entities will provide a perspective within which to examine the
legal powers and limitations with respect to the regulation of land develop-
ment.
NATIONAL LAND USE PLANNING
Although the U.S. Constitution confers no expressed general power on Congress
to regulate the use of private lands, the power of the federal government
-5-
over land use planning and development is extremely broad. Article IV, Sec-
tion 3, cl. 2 of the Constitution states that, "The Congress shall have pow-
er to dispose of and make all needful rules and regulations respecting the
territory or other property belonging to the United States The term
"territory" includes lands, and the power of Congress to control federal lands
is unlimited. United States V. Gratist, 39 U.S. (14 Pet.) 526 (1840).
Authority of Congress over federally owned lands has been a principal factor
in determining land use since approximately one-third of the land in the
United States is owned by the federal government. Federal policy with re-
spect to public lands had a strong influence on early planning and develop-
ment of local communities. The basic grid system of the early federal land
survey was followed in local planning. Federal land grants to promote devel-
opment of roads and railroads, disposition of lands under the Homestead Act
of 1862, and now the management of federal lands by such agencies as the Bur-
eau of Land Management, U.S. Forest Services, Bureau of Reclamation, National
Park Service, and the Federal Power Commission have had a major impact on
land use planning and development.
Principal federal impact on land use has resulted from federal grant and loan
programs to encourage state, regional and local planning, such as those pro-
grams under the Department of Housing and Urban Development, the several fed-
eral housing acts, transportation acts, highway acts, air and water quality
acts, and federal urban renewal assistance acts. Authority of Congress in
such areas derives principally from the general welfare clause, Article 1.
Sec. 8, cl. 1 of the U.S. Constitution, which states that, "The Congress
shall have power to lay and collect taxes, duties, imports and excises, to pay
the debts and provide for the common defense and general welfare of the United
States." This power is analagous to the general police power of the states.
-6-
Other matters may be regulated by the federal government under the express
powers given to Congress over commerce (Art. I, Sec. 8, cl.1) and defense
(Art. I., Sec. 8, cl.11-16).
Validly enacted federal laws supercede or pre-empt local laws which are in
conflict. Article 6, cl.2 of the Constitution, the "supremacy clause", pro-
vides that the Constitution and the laws of the United States which are made
in pursuance thereof constitute the supreme law of the land. Therefore, the
provisions of a state law are invalid to the extent they are in conflict
with applicable federal law. On the other hand, state sovereignty is protec-
ted by the Tenth Amendment which provides that the powers not delegated to
the federal government, nor prohibited by the Constitution to the states, are
reserved to the states, or to the people.
There is an increasing interest in development of a national land use policy.
There are presently more than 200 bills before Congress relating to land use
policy. Over the last several years Congress has developed numerous widely-
differing programs and authorizations for land planning, management, and de-
velopment. Title VIII of The Intergovernmental Cooperation Act of 1968 con-
tains the Federal Urban Land Use Act, which requires federal agencies to
coordinate land acquisition, disposal, and change of use in urban areas with
local plans. The provisions of this Act are significant in determining
whether state planning legislation is applicable to federal agencies within the
planning area.
An example of land use policy likely to be enacted by Congress in the near
future, is S. 632 authored by Senator Henry M. Jackson. The bill establishes
national land use goals and priorities and requires states to prepare state-
wide land use plans. Such statewide plans must meet specified criteria and
-7-
guidelines. States may delegate to local governments planning and implemen-
tation subject to the states' responsibility for approval and coordination of
local plans and enforcement procedures. The state plan is subject to federal
review and must be consistent with the guidelines contained in the Act. The
bill provides for termination of grants available under the bill when land
use programs fail to gain federal approval, and further provides for loss by
the state of airport funds, highway funds, land and water conservation funds,
and other grants-in-aid for failure to have an approved land use program.
It appears clear that the California Coastal Zone Conservation Commission and
the regional commissions proposed to be created by Proposition No. 20 on the
November 1972 California general election ballot would not meet the proposed
guidelines for a comprehensive state planning agency, nor comply with the cri-
teria set forth in the proposed federal act.
STATE LAND USE PLANNING AND REGULATION
Primary responsibility and constitutional authority for land use planning and
control rests in the state by reason of its police power. Even in those states
which grant to cities and counties constitutional home rule, the grant of pol-
ice power is subject to the states' superior police power, and authority of
charter cities over municipal affairs is offset by the states' power over mat-
ters which are of "statewide concern". There would seem to be little ques-
tion that preservation of the coastal shoreline and access to the ocean, reg-
ulation of water quality, air pollution, and the like are matters of statewide
concern.
In the case of offshore lands, Congress relinquished to the states all rights
of the United States to "lands beneath navigable waters", including those
lands within three miles seaward from the coastline of each state, by passage
-8-
of the Submerged Lands Act in 1953. The definition of "coastal zone" in
the California Initiative includes lands beneath navigable waters as defined
in the Federal Act. The Submerged Lands Act reserves to the United States,
however, all rights of the United States under its constitutional authority
to regulate or improve navigation, to provide for flood control, or the pro-
duction of power. (43 U.S. C.A. 1311(d).) The Act also provides that the
United States retains all its rights and powers of regulation and control
of such lands and navigable waters for the "constitutional purposes of com-
merce, navigation, national defense, and international affairs, all of which
shall be paramount to, but shall not be deemed to include, proprietary rights
of ownership, or the rights of management, administration, leasing, use,
and development of the lands and natural resources 11 vested in the states.
(43 U.S.C.A. 1314)
Historically, states have delegated to cities and counties zoning authority
and authority to regulate divisions of land, reserving to itself limited pow-
ers in these areas. Similarly, cities and counties are authorized to enact
housing authorities and community redevelopment agencies. The reservoir of
power rests in the state, however. In California, cities and counties are re-
quired to enact general plans containing specified components and to enact
zoning ordinances which must be consistent with those plans. The state pre-
scribes the form, powers, and duties of local redevelopment agencies and hous-
ing authorities. It enacts statewide building and housing regulations with
which local regulations must conform (with some provision for variance), and
the scope of authority of cities and counties over the subdivisions is limit-
ed by the State Subdivision Map Act, which is a grant of authority, rather
than a limitation on local authority.
There is an increasing involvement of states in land use control. A growing
-9-
number of states have adopted statewide land use plans since Hawaii led the
way in 1961. As indicated above with respect to federal legislation, it ap-
pears likely that every state will be required to have a statewide land use
plan and to exercise a greater degree of control over actual land use, con-
sistent with a national land use policy. A discussion of the functions of
California state agencies having direct and indirect responsibility for land
use planning and regulation is discussed elsewhere in this report.
An important provision of the California Constitution in Article XV, Sec. 2,
provides:
"No individual, partnership or corporation, claiming or possessing
the frontage or tidal lands of a harbor, bay, inlet, estuary, or
other navigable water in this State, shall be permitted to exclude
the right of way to such water whenever it is required for any pub-
lic purpose, nor to destroy or obstruct the free navigation of
such water; and the legislature shall enact such laws as will give
the most liberal construction to this provision, so that access to
the navigable waters of the State shall be always attainable for
the people thereof."
The legislature has enacted legislation which provides that no city or coun-
ty shall approve a subdivision fronting upon the coastline or shoreline, or
upon any lake or reservoir which is owned in part or entirely by any public
agency unless there is reasonable public access to such waters. (Business
and Professions Code S 11610.5, 11610.7.)
REGIONAL AND METROPOLITAN PLANNING
Planning agencies that have less than statewide jurisdiction are frequently
referred to as "regional" agencies. In some cases such area-wide planning
-10-
agencies are established by the state, and in others they are authorized
by the state. More frequently, such agencies are formed by agreement between
local governmental entities and financially supported by the member agencies
in the planning area. Almost every state authorizes regional planning. The
creation of regional planning entities and councils of government has been
given impetus by federal aid programs which require review and approval by
such regional bodies.
Few such regional agencies have been given much regulatory power. Their
power and authority is that granted to them by the state legislature, or that
denied from the agreement or contract between participating entities and lim-
ited by the common power which they share. In either case, the scope of their
authority and power is that delegated by the state. In California, there are
agencies which exercise regulatory power on a regional basis, such as the San
Francisco Bay Conservation and Development Commission (Government Code S 66600,
et seq), and the Metropolitan Transportation Commission (Government Code S
66500, et seq). State statutes also provide for area planning commissions
(Government Code S 65600, et seq), planning districts consisting of two or
more counties (Government Code S 66100, et seq), and regional planning dis-
tricts (Government Code S 65060, et seq). Councils of Government such as the
Association of Bay Area Governments and the Southern California Association
of Governments have been created pursuant to the Joint Exercise of Powers Act
(Government Code S 6500, et seq), which provides that two or more public
agencies by agreement may jointly exercise any power common to the contract-
ing parties. The Attorney General has ruled that such joint powers agencies
may not exercise zoning authority (Office of the Attorney General, indexed
letter, October 13, 1970). There has been no court decision expressly clari-
fying whether basic legislative powers such as the taxing power may be exer-
cised by the joint entity.
-11-
It is clear that there is a trend toward regional planning and to some ex-
tent regional regulatory agencies exercising powers pursuant to a statutory
grant of power by the state legislature.
POLICE POWER
BASIC POLICE POWER
The term "police power" denotes the power of government in every sovereignty;
it is an inherent attribute of sovereignty, necessary to the conduct and
maintenance of government (McQuillin, Mun. Corp. 3d Ed. S 24.02). Essentially,
the police power is the power of government to regulate the conduct of its
citizens and the manner in which they use their property. It is inseparable
from legislative power and must be exercised by a legislative body or by
the electorate, all legislative power being vested by the Constitution in
the people or the legislature. The United States, as a government of enumer-
ated powers, has no inherent general police power. The police power is re-
served to the states. (Hamilton V. Kentucky Distilleries and Warehouse Co.,
251 U.S. 146.) The federal government in the exercise of its express powers ex-
ercises police power as an incident thereto, even though the exercise of such
power constitutes an apparent invasion of the states' police power. The pol-
ice power is not susceptible of definition (Stone V. Mississippi, 101 U.S. 814);
it is not rigid and fixed, but flexible. It is the broadest of governmental
power, affecting all matters relating to the public health, safety, conven-
ience, order, morals, and general welfare. A characteristic of the police pow-
er is that it is a reasonable assertion of public over private interests.
Its lawful exercise necessarily interferes with individual rights. The
right of an owner of property to use it as he chooses is subject to the pol-
ice power.
There are limitations on the exercise of the police power discussed more ful-
1y below. It may not be exercised arbitrarily and must be exercised for a
-12-
valid public purpose, and the means must be reasonably related to the achieve-
ment of that legitimate objective. The test is one of public necessity and
reasonableness. Its exercise must operate uniformly and without arbitrary
or abusive discrimination. It is only when exercise of the police power is
arbitrary, unreasonable, or an improper use that it becomes an invasion of
constitutional rights.
California Constitution Article II, Sec. 7 provides:
"A county or city may make and enforce within its limits all local,
police, sanitary, and other ordinances and regulations not in con-
flict with general laws."
Just as the state police power is subject to the paramount authority of the
United States Constitution, municipal police power is also subject to the
supremacy of state legislation.
The police power includes the power to zone, regulate subdivisions, regulate
building and housing, abate nuisances, and prevent and regulate air and wat-
er pollution. Land use control generally involves an exercise of the police
power.
ZONING
Zoning is an exercise of the police power which is inherent in each state.
States by and large have delegated the power to zone to cities and counties.
The California legislature has done so in Government Code S 65800. Local
zoning is probably authorized under the general grant of police power to
cities and counties. (Brougher V. Bd. of Public Works, 205 Cal. 426.) Zon-
ing power may be exercised by a charter city under its constitutional power
over "municipal affairs". (Const. Art. XI, Sec. 5.) Whether or not a matter
-13-
is a municipal affair or a matter of statewide concern subject to the gener-
al law is determined by the courts. (Bishop V. City of San Jose, 1 Cal. 3d.
56.) The zoning provisions of the Government Code expressly excepted charter
cities from their application unless adopted by the city (Government Code
S 65803) until recently. Certain procedural requirements are now expressly
applicable to charter cities.
Zoning is exercised for a number of different purposes. The California stat-
utes contain no statement of purposes for which the zoning power may be exer-
cised. A municipality does not have to support its zoning action by proving
a legitimate public purpose. There is a presumption of validity of the leg-
islative action and, except in rare cases, the courts will not question the
Purpose so long as reasonable. Zoning may be exercised to provide for orderly
growth of the community, to provide for proximity of compatible uses, to
control traffic congestion, to maintain property values, to serve aesthetic
purposes, to regulate density and prevent overcrowding, to provide for open
space, to increase the property tax base, and to provide neighborhood social
and economic stability. Zoning has been upheld even though property values
may be diminished (Hamer V. Ross, 59 Cal. 2d. 776). The effect of zoning on
a particular parcel is generally not determinative of its validity. Complete
elimination of the value of property as a result of zoning may be valid if
for a legitimate public purpose. (Consolidated Rock Products Co.
V. Los Angeles, 57 Cal. 2d. 515.) This however raises the problem
of inverse condemnation (see Page 20).
Zoning is a tool for implementation of the general plan and must
be "consistent" with the general plan. (Government Code S 658860.)
The purposes of zoning then may be more readily seen in terms of
the contents and requirements of the general plan.
There are limitations on zoning. "Spot zoning" is invalid where a parcel of
-14-
land is singled out for special treatment, or where the zoning is for the bene-
fit of the landowner rather than the public interest generally. "Spot zon-
ing" out low income housing has been held invalid. (G & D Holland Construc-
tion Co. V. Marysville, 12 Cal. 3d. 989.) A number of cases in several states
have invalidated zoning ordinances which did not provide for apartment dwel-
lings, as a violation of the Equal Protection, on the ground that the effect
of the zoning was to exclude one or more classes of persons. (In re Ginsh,
263 A. 2nd. 395 (pa.)). Similarly, some cases have held that a zoning ordi-
nance requiring minimum lot sizes of two and three acres was invalid. (Ap-
peal of Kit-Man Builders; Inc. (1970), 268 A. 2nd. 765 (pa.)). Other cases
on similar facts have upheld the validity of zoning ordinances restricting or
limiting permissible uses, and questions of large-lot zoning and other alleged
"exclusionary" provisions have not been settled.
It is clear that zoning ordinances must constitute a reasonable exercise of
the police power to achieve a legitimate public objective.
SUBDIVISION REGULATIONS
Regulations of subdivisions is a land use control based on the police power.
Zoning and regulation of subdivisions are the principal land use controls ex-
ercised by state and local governments. Like zoning, subdivision regulation
is a tool for implementing planning. Recently enacted legislation in Calif-
ornia requires that subdivisions be consistent with applicable general and
specific plans. (Business and Professions Code S11526, 11549.5.) Subdivi-
sion regulation is related to zoning but serves a different purpose. Zoning
regulates the uses to which. property owners may develop their property, where-
as subdivision regulations are concerned with whether property should be di-
vided, the manner in which it should be divided, and the exactions which should
be imposed with respect to the total property as conditions of approval of
-15-
the subdivision.
The power to regulate subdivisions is based in part on the theory that re-
quirements may be imposed in exchange for the privilege of the subdivider to
develop land for his own benefit. Conditions imposed on the subdivider are
based principally on the need for public facilities and improvements created
by the subdivision and which would otherwise fall as a burden on the rest of
the community. Therefore, most state subdivision statututes have long author-
ized subdivision ordinances to require dedications and improvement of streets
and utilities. The trend is to acquire additional exactions such as dedica-
tion of lands for school sites and parks, or the payment of fees in lieu of the
dedications.
In California the State Subdivision Map Act (Business and Professions Code
S11500 et seq.) authorizes cities and counties to regulate the "design" and
"improvement" of subdivisions and divisions of land which are not defined as
subdivisions so long as such regulations are not more restrictive than the re-
quirements for a subdivision. The Act is a grant of authority and cities and
counties may impose only those conditions for approval of subdivisions which
are authorized by the state act (Kelber V. City of Upland, 155 C.A. 2d 631).
Recent amendments to the Subdivision Map Act have substantially broadened the
authority of local government to disapprove or conditionally approve divisions
of land. Definitions of "design" and "improvement" have been expanded to in-
clude "such specific requirements in the plan and configuration of the entire
subdivision (and the installation of such specific improvements) as may be
necessary or convenient to insure conformity to or implementation of applicable
general or specific plans---". The constitutionality of the statutory author-
ization and a local ordinance imposing a requirement for dedication of park-
land or the payment of fees in lieu thereof was upheld in the California
-16-
SUMMARY OF INITIATIVE
Supreme Court (hearing denied by the U.S. Supreme Ct.) in the case of Associa-
ted Homebuilders V. City of Walnut Creek, 4 C.A. 3d 645 (1971).
The subdivision map must be disapproved if the local legislative body deter-
mines that the proposed subdivision is not consistent with applicable plans,
that the site is not physically suitable for the type or density of develop-
ment, that the design and improvements are likely to cause substantial en-
vironmental damage or serious public health problems, or conflict with public
easements for access.
The extent of the authority implicit in the latest amendments of the sub-
division statutes has not been clearly defined and will undoubtedly be tested
in the courts. It is clear, however, that the relationship between subdivision
regulation and planning has been greatly strengthened. The validity of both
zoning and subdivision regulations are now measured largely by their consis-
tency with the provisions of comprehensive general plans. Unfortunately,
the planning procedure contained in the coastal zone initiative does not pro-
vide for consistency between the coastal zone plan to be adopted and the cor-
responding general plans of cities and counties. Elements of the coastal zone
plan may well be contrary to corresponding elements of local plans with the
result that development may be denied because it is inconsistent with one of
the plans although consistent with the other. The problem illustrates the
need for development of comprehensive land use planning, in which the elements
of local plans are consistent with the corresponding elements of regional or
statewide plans.
BUILDING AND HOUSING CODES
Building regulations are an exercise of the police power and subject to the
same constitutional limitations as other exercises of the police power. Per-
mits may be required before any construction is permitted and reasonable conditions
-17-
may be attached to the issuance of such permits. Conditions which may be
validly imposed are lot line set back requirements, minimum lot size, street
or highway access, off-street parking, and the dedication of rights-of-way
where reasonably related to the use of the property. (Southern Pacific Co.
V. City of Los Angeles, 242 C.A. 2d 38.)
Issuance of a building permit may not be arbitrarily denied. The general
rule is that the applicant is entitled to the permit as a matter of right
if he complies with the applicable statutory and code requirements. It is
settled, however, that a reasonable fee may be imposed for issuance of the
permit and reasonable conditions imposed as indicated above.
The California State Housing Law requires the State to adopt rules and regu-
lations imposing the same requirements as contained in specified uniform
national codes. Cities and counties must adopt regulations imposing the
same requirements as those adopted by the State, except that they may make
such changes or modifications as they expressly find to be necessary because
of local conditions.
Building codes, although not a land use control as such, are related to plan-
ning, zoning and subdivision regulations. Building permits may be denied
for failure of the applicant to comply with applicable zoning and subdivision
requirements. An example of this is Government Code Sec. 65567 which pro-
vides that no building permit may be issued and no subdivision approved un-
less the proposed construction or subdivision is consistent with the local
open space plan.
INITIATIVE AND REFERENDUM
Article IV, Section 1, of the California Constitution reserves to the people
the powers of initiative and referendum. The initiative is the power of the
-18-
electorate to enact statutes, ordinances and amendements to the Constitution.
The referendum is the power of the electorate to nullify or reject statutes
and ordinances or parts thereof following their enactment, with specified
exceptions. Initiative and referendum powers may be exercised by the electors
of cities and counties, and the procedure for general law cities is prescribed
by the legislature.
The initiative and referendum apply to matters which are legislative in char-
acter and clearly include exercise of the police power. Exercise of the ini-
tiative by the local electorate is restricted to legislation which is within
the power of the local legislative body to enact. Recent cases have held that
the initiative may be used to amend zoning ordinances, although an older state
supreme court case holds to the contrary.
The California Constitution provides that an initiative statute becomes ef-
fective the day after the election unless the measure provides otherwise,
and that the legislature may amend and repeal an initiative statute by another
statute only when approved by a vote of the people unless the initiative
statute permits amendment or appeal without their approval. The coastal zone
initiative authorizes the legislature by a two-thirds vote to amend the act
in order to better achieve the objectives stated therein, but it does not
authorize repeal of the act without a vote of the people.
A statute or ordinance enacted by initiative is subject to the same constitu-
tional requirements as a statute ordinance enacted by a legislative body.
It must yield to conflicting provisions of the State and U.S. Constitutions.
CONSTITUTIONAL LIMITATIONS
The police power is limited by constitutional guarantees. It must not violate
-19-
provisions of the United States Constitution or conflict with valid federal
laws. A reasonable exercise of the police power, however, does not violate
constitutional provisions even though it may interfere with individual per-
sonal and property rights.
The principal constitutional guarantees against which state laws regulating
land use must be balanced are the provisions of the Fifth and Fourteenth
Amendments that no person shall be deprived of life, liberty or property with-
out due process of law, nor private property be taken for public use without
just compensation, and the equal protection provisions of the Fourteenth
Amendment. The California Constitution contains contains similar guarantees.
The California Constitution provides that private property shall not be taken
or damaged for public use without payment of just compensation. Unintended
physical injuries to private property may then result in inverse condemnation
in violation of the "or damaged" clause of the California Constitution. A
possibility of preemption is raised by the provisions of both the United States
and California Constitutions that the U.S. Constitution and the laws enacted
pursuant thereto are the supreme law of the land.
POLICE POWER V. INVERSE CONDEMNATION
The initial question is whether there is a "taking" of private property for a
public use. An exercise of the police power to regulate or restrict the use
and enjoyment of land is not compensable. It is only when government action
constitutes a "taking" that the power of eminent domain is involved and com-
pensation is required to be paid. The courts have used various theories to
determine whether application of a statute constituted a taking. Short of
an actual physical invasion of the property, there is no precise formula to
determine where regulation ends and taking begins.
-20-
A municipal zoning ordinance prohibiting rock and gravel operations on
the plaintiffs property was upheld oven though the court found that the
property had no appreciable economic value for any other purpose. It held
that the zoning ordinance was a proper exercise of the police power in fur-
therance of the best interests and general welfare of the community. (Con-
solidated Rock Products Co. V. City of Los Angeles, 57 C. 2d 515.)
In Candlestick Properties, Inc. V. San Francisco Bay Conservation and Develop-
ment Commission, 11 C.A. 3d 557, the Court of Appeal affirmed a judgement
denying the plaintiff a right to fill a parcel of land, holding that the
restrictions placed on the use of the land were a valid exercise of the police
power and not a taking of property without just compensation. The Court,
citing the Consolidated Rock case, stated, "It is a well settled rule that
determination of the necessity and form of regulations enacted pursuant to
the police power is primarily a legislative and not a judicial function, and
is to be tested solely by the answer to the question, is there any reason-
able basis in fact to support the legislative determination of the regula-
tion's wisdom and necessity?" (11 C.A. 3d 557, 571.) The Court held that
the statutes defining the public interest in protecting the bay establish a
rational basis for the legislation, and held that, while "an undue restriction
on the use of private property is as much a taking for constitutional pur-
poses as appropriating or destroying it," that refusing to allow the property
owner to fill his land was not an undue restriction. The Court applied a
"balancing test" and found that the public interest was paramount.
By comparison, in Bartlett V. Zoning Commission, (2 E.R.C. 1684 (1971)), the
plaintiff was a private landowner challenging the constitutionality of Con-
necticut's coastal zoning regulations on the grounds that they were so restric-
tive that they rendered his lands commercially valueless. He had acquired
-21-
the land with an intention of filling, but new zoning ordinances forbidding
all filling activities were passed soon after his purchase. He then filed
suit in the Connecticut Court of Common Pleas for relief from the town Zoning
Commission's amendment of the regulations, claiming that these measures
were a confiscation of his land without just compensation. Both the trial
court and the Connecticut Supreme Court held that the zoning regulations
amounted to a taking of plaintiff's property in violation of his constitu-
tional rights. The higher court acknowledged that perservation of the en-
vironment with its ecological, healthful, aesthetic and economic benefits
was a laudable objective for the ordinances, but noted that the objective it-
self was not in issue.
The important questions, as the state Supreme Court saw it, was whether this
objective could be accomplished in such a manner. Since these regulations
left the landowner with no reasonable commercial use for his property, the
court concluded that the land was rendered practically worthless. The court
also noted that although the state legislature had recognized the importance
of environmental preservation, the latter had made no provision for reasonable
compensation in cases where takings were necessary. The court therefore con-
cluded that the extreme restrictions of the zoning regulations were an un-
reasonable and arbitrary exercise of police power, and thus were confiscatory
and unconstitutional.
Restrictions imposed with the intent to prevent any increase in the cost of
acquisition of lands intended to be acquired or purchased at a later date were
held to be unreasonable in Peacock V. County of Sacramento, 271 C.A. 2d 845.
In an inverse condemnation action against the county, the court found that a
"taking" occurred, where the county, in contemplation of acquiring a private
airport for public use, had adopted a height restriction ordinance, rezoned
-22-
the property to a more restrictive zone designed for use in airport approach
areas, and adopted a general plan for development of the airport. The ef-
fect was to essentially freeze development of the plaintiff's property. The
Peacock case suggests that certain plans may become, in fact, regulations
with consequent legal effects, including inverse condemnation.
PRE-EMPTION
State statutes are invalid if superceded by federal law or attempt to regu-
late subject matter over which the federal government has pre-empted the
field. It is clear that a state law in direct conflict with a valid federal
statute must yield under the supremacy clause of the U.S. Constitution.
State statutes may also be pre-empted, although not in direct conflict with
federal law, if the federal government has fully occupied the field of regu-
lation. Whether or not a federal law leaves no room for state regulation
must be determined in light of the whole federal statute and evidence of
Congressional intention to occupy the field. State laws may be invalidated
where the scheme of federal legislation is SO pervasive as to give rise to
a reasonable inference that Congress left no room for the states to supple-
ment it, or where the state law presents a serious danger of conflict with
the administration of a federal program pursuant to federal legislation cov-
ering the same subject matter (Pennsylvania V. Nelson, 350 U.S. 497, 100 L.
Ed. 640).
Whether or not a state law is in conflict with federal law is not easily
determined. Although not invalid on its face, a state regulation may be held
to be invalid as applied to a particular situation in which federal law con-
trols.
SUMMARY
The California coastal zone initiative represents an exercise of the state's
-23-
police power through the initiative power reserved to the people by the Calif-
ornia Constitution. It provides for the creation by statute of a state com-
mission and six regional commissions to prepare a plan for regulation of
the use of the coastal zone. It provides further for a permit procedure
and approval of development within the defined zone during the period of pre-
paration of the plan. As an exercise of the state's police power, it is sub-
ject to Constitutional limitations in its application. Whether or not one
or more of its provisions violates Constitutional due process or property
rights can be answered only in terms of the application of such provision to
a given factual situation. In some situations, it is clear that the pro-
visions of the statute cannot apply to matters which will be subject to fed-
eral regulation.
A principal characteristic of the proposal is that it provides for a separ-
ate plan for a limited area in which development must be consistent with its
provisions. It creates a conflict with other provisions of law which re-
quire the enactment of general plans with specified elements and require zon-
ing and subdivision regulations to be consistent therewith. Questions of
inverse condemnation will undoubtedly arise with respect to application of
the permit provisions to particular lands and uses.
An unfortunate part of the initiative process is that it leaves no room for
amending and clarifying provisions of the measure after it is filed and prior
to enactment. Portions of the measure are ambiguous and will probably lead
to litigation. An example is the language of proposed section 27404 relating
to prior vested rights. A reading of the language of that section can be
construed to provide that restrictions of the measure are applicable to per-
sons who have in fact, under the law, acquired vested rights under a valid
building permit issued subsequent to April 1, 1972.
-24-
SUMMARY OF THE CALIFORNIA COASTLINE INITIATIVE
Responsibility for land use regulation and control in California is shared
between various levels of government, although local government continues to
assume primary responsibility for the regulation of all land other than that
owned by State and Federal agencies.
The California Coastline Initiative would change the existing method of regu-
lating land use through the creation of a statewide California Coastal Zone
Conservation Commission and six regional commissions. The statewide and reg-
ional commissions would be responsible for developing and submitting to the
Legislature for consideration by December 1, 1975, a California Coastal Zone
Conservation Plan. In addition, they would inherit strong new regulatory con-
trol over essentially all development within a coastal permit area during the
time that the California Coastal Zone Conservation Plan is being prepared.
Because of the significance of the proposals contained in the initiative, a
detailed summary of its major provisions has been prepared.
SUMMARY OF PROVISIONS
If adopted, the California Coastline Initiative would add a new level of plan-
ning and land use regulation to the existing governmental framework. That is,
cities and counties would continue to plan and make recommendations for land
use within their respective boundaries. However, implementation of their plans
and specific land use decisions would be conditioned on the additional approval
of the regional and, in some cases, a statewide California Coastal Zone Conser-
vation Commission.
WHO WOULD SERVE ON THE COMMISSIONS?
The statewide California Coastal Zone Conservation Commission would consist of
-25-
twelve (12) members. Six would represent, and would be selected by, the reg-
ional commissions. The remaining six members would represent the public, and
they would be appointed equally by the Governor, the Senate Rules Committee,
and the Speaker of the Assembly.
Membership of the six regional commissions would be, as follows:
1. North Coast Regional Commission (Del Norte, Humboldt, and
Mendocino Counties)
Six city and county officials (one city councilman and
one supervisor from each county)
Six public representatives
2. North Central Coast Regional Commission (Sonoma, Marin,
and San Francisco Counties)
Seven city and county officials (one city councilman and
one supervisor from Sonoma and Marin Counties; two sup-
ervisors from the City and County of San Francisco; one
city councilman or supervisor from the Association of Bay
Area Governments)
Seven public representatives
3. Central Coast Regional Commission (San Mateo, Santa Cruz,
and Monterey Counties)
Eight city and county officials (one city councilman and one
supervisor from each county; one city councilman or super-
visor from the Association of Bay Area Governments; one
-26-
city councilman or supervisor from the Association of
Monterey Bay Area Governments)
Eight public representatives
4. South Central Coast Regional Commission (San Luis Obispo,
Santa Barbara, and Ventura Counties)
Six city and county officials (one city councilman and one
supervisor from each county)
Six public representatives
5. South Coast Regional Commission (Los Angeles and Orange
Counties)
Six city and county officials (one supervisor from each
county; one city councilman from the City of Los Angeles;
one city councilman from Los Angeles County from a city
other than Los Angeles; one city councilman from Orange
County; one city councilman or supervisor from the South-
ern California Association of Governments)
Six public representatives
6. San Diego Coast Regional Commission (San Diego County)
Six city and county officials (two supervisors from San Diego
County; two city councilmen from San Diego County, at least
one of whom shall be from a city which lies within the per-
mit area; one city councilman from the City of San Diego;
one member of the San Diego Comprehensive Planning Organiza-
tion)
-27-
Six public representatives
Supervisors on the regional commission would be appointed by their respective
Board of Supervisors, representatives of regional planning agencies would be
appointed by their respective agency and, unless indicated otherwise, city
councilmen would be appointed by the city selection committee in their respec-
tive county.
As with the statewide commission, public representatives on the regional com-
missions would be selected by the Governor, the Senate Rules Committee, and
the Speaker of the Assembly. With respect to public members, the initiative
specifically provides, as follows:
"Each public member of the commission or of a regional commission
shall be a person who, as a result of his training, experience,
and attainments, is exceptionally well qualified to analyze and
interpret environmental trends and information, to appraise re-
source uses in light of the policies set forth in this division,
to be responsive to the scientific, social, esthetic, recreational,
and cultural needs of the state. Expertise in conservation, rec-
reation, ecological and physical sciences, planning, and education
shall be represented on the commission and regional commissions."
The initiative provides that all members of the state and regional commissions
must be appointed by December 31, 1972. The first meeting of the regional com-
missions would be held no later than February 1, 1973, and the first meeting
of the state commission would be held no later than February 15, 1973. Member:
of the regional and state commissions would receive no compensation for their
services other than actual and necessary expenses. In addition, members who
are not employees of other public agencies would receive $50 for each full day
-28-
of actual meetings of either the state or regional commission.
WHAT WOULD THE COMMISSIONS DO?
The principal responsibility of the state commission would be to prepare, by
December 1, 1975, a California Coastal Zone Conservation Plan for considera-
tion by the Legislature. The state commission would also hear appeals regard-
ing decisions of regional commissions to approve or deny a permit for develop-
ment within the permit area.
Regional commissions, in cooperation with local agencies, would be responsible
for preparing and submitting recommendations for the California Coastal Zone
Conservation Plan to the state commission no later than April 1, 1975. The
recommendations from regional commissions must include "areas that should be
reserved for specific uses or within which specific uses should be prohibited."
In addition, regional commissions, on and after February 1, 1973, would be res-
ponsible for issuing permits authorizing development within a prescribed "per-
mit area."
Both statewide and regional commissions would be required to meet at least once
a month. They would each elect a chairman and appoint an executive director,
and would be authorized to employ additional staff and contract for necessary
professional services. In addition, any federally recognized regional planning
agency would be required to provide staff assistance to the regional commission
within its region "insofar as its resources permit," and the staff and budget
of the California Comprehensive Ocean Area Plan (presently under the jurisdic-
tion of the State Department of Navigation and Ocean Development) would be as-
signed to the state commission. The initiative provides that a total of $5
million shall be allocated for operation of the state and regional commissions
during fiscal years 1973 to 1976.
-29-
WHAT IS THE NATURE OF THE CALIFORNIA COASTAL ZONE CONSERVATION PLAN?
As indicated, the principal responsibility of the state commission is to pre-
pare a California Coastal Zone Conservation Plan for consideration by the Leg-
islature. The initiative defines the coastal zone, as follows:
"The Coastal zone means that land and water area of the State of
California from the border of the State of Oregon to the border
of the Republic of Mexico, extending seaward to the outer limit
of the state jurisdiction of the state, and extending inland to
the highest elevation of the nearest coastal mountain range, ex-
cept that in Los Angeles, Orange, and San Diego Counties, the in-
land boundary of the coastal zone shall be the highest elevation
of the nearest coastal mountain range or five miles from the mean
high tide line, whichever is the shorter distance."
Because the landward boundaries of the coastal zone are related to the mean
high tide line of the "sea," this term is also defined in the initiative:
"Sea means the Pacific Ocean and all the harbors, bays, chan-
nels, estuaries, salt marshes, sloughs, and other areas sub-
ject to tidal action through a connection with the Pacific
Ocean, excluding nonestuarine rivers and creeks."
The initiative provides that the coastal zone plan shall be "based upon de-
tailed studies of all the factors that significantly affect the coastal zone,"
and that it shall be consistent with the following objectives:
(a) The maintenance, restoration, and enhancement of the over-
all quality of the coastal zone environment, including, but
not limited to, its amenities and aesthetic values.
-30-
(b) The continued existence of optimum populations of all
species of living organisms.
(c) The orderly, balanced utilization and preservation, con-
sistent with sound conservation principles, of all liv-
ing and nonliving coastal zone resources.
(d) Avoidance of irreversible and irretrievable commitments
of coastal zone resources.
In addition to the objectives listed above, the initiative also provides that
the coastal zone plan shall contain at least the following elements:
(a) A precise, comprehensive definition of the public interest
in the coastal zone.
(b) Ecological planning principles and assumptions to be used
in determining the suitability and extent of allowable de-
velopment.
(c) A component which includes the following elements:
(1) A land-use element.
(2) A transportation element.
(3) A conservation element for the preservation and manage-
ment of the scenic and other natural resources of the
coastal zone.
(4) A public access element for maximum visual and physical
use and enjoyment of the coastal zone by the public.
(5) A recreation element.
(6) A public services and facilities element for the general
location, scale, and provision in the least environment-
ally destructive manner of public services and facilities
in the coastal zone. This element shall include a power
-31-
plant siting study.
(7) An ocean mineral and living resources element.
(8) A population element for the establishment of maximum
desirable population densities.
(d) Reservations of land or water in the coastal zone for certain
uses, or the prohibition of certain uses in specific areas.
(e) Recommendations for the governmental policies and powers re-
quired to implement the coastal zone plan including the or-
ganization and authority of the governmental agency or agencies
which should assume permanent responsibility for its implementa-
tion.
HOW WOULD THE INTERIM PERMIT PROCEDURE WORK?
GENERAL PROVISIONS
During the time that the California Coastal Zone Conservation Plan was being
prepared, regional commissions would be granted broad regulatory authority
over development in a prescribed "coastal permit area," which is defined, as
follows:
"Permit area means that portion of the coastal zone lying between
the seaward limit of the jurisdiction of the state and 1,000 yards
landward from the mean high tide line of the sea subject to the
following provisions:
(a) The area of jurisdiction of the San Francisco Bay Conservation
and Development Commission is excluded.
(b) If any portion of any body of water which is not subject to
tidal action lies within the permit area, the body of water
-32-
together with a strip of land 1,000-feet wide surrounding it
shall be included.
(c) Any urban land area which is (1) a residential area zoned, stab-
ilized and developed to a density of four or more dwelling units
per acre on or before January 1, 1972; or (2) a commercial or in-
dustrial area zoned, developed, and stabilized for such use on or
before January 1, 1972, may, after public hearing, be excluded
by the regional commission at the request of a city or county with-
in which such area is located. An urban land area is "stabilized"
if 80 percent of the lots are built upon to the maximum density
or intensity of use permitted by the applicable zoning regulations
existing on January 1, 1972.
Tidal and submerged lands, beaches, and lots immediately adjacent
to the inland extent of any beach or of the mean high tide line
where there is no beach shall not be excluded.
Orders granting such exclusion shall be subject to conditions
which shall assure that no significant change in density, height,
or nature of uses occurs.
An order granting exclusion may be revoked at any time by the reg-
ional commission, after public hearing.
All persons (any individual, organization, partnership, and corporation, in-
cluding any utility and any agency of federal, state, and local government)
would be subject to these additional permit requirements with respect to es-
sentially any proposed "development" within the permit area. The initiative
defines development in the following broad, all-encompassing terms:
"Development means, on land, in or under water, the placement
-33-
or erection of any solid material or structure; discharge or dis-
posal of any dredged material or of any gaseous, liquid, solid,
or thermal waste, grading, removing, dredging, mining, or extrac-
tion of any materials; change in the density or intensity of use
of land, including, but not limited to, sub-division of land pur-
suant to the Subdivision Map Act and any other division of land,
including lot splits; change in the intensity of use of water,
ecology related thereto, or of access thereto, construction, re-
construction, demolition, or alteration of the size of any struc-
ture, including any facility of any private, public, or municipal
utility, and the removal or logging of major vegetation. As used
in this section, "structure" includes, but is not limited to, any
building, road, pipe, flume, conduit, siphon, aqueduct, telephone
line, and electrical power transmission and distribution line."
More specifically, the initiative provides that "on or after February 1, 1972,
any person wishing to perform any development within the permit area shall ob-
tain a permit authorizing such development from the regional commission and,
if required by law, from any city, county, state, regional or local agency."
No permit shall be issued unless the regional commission has first found both
of the following:
(a) That the development will not have any substantial adverse
environmental or ecological effect.
(b) That the development is consistent with the objectives of
the initiative.
In addition, the initiative provides that all permits shall be conditioned in
order to ensure that:
-34-
(a) Access to publicly owned or used beaches, recreation areas,
and natural reserves is increased to the maximum extent pos-
sible by appropriate dedication.
(b) Adequate and properly located public recreation areas and
wildlife preserves are reserved.
(c) Provisions are made for solid and liquid waste treatment, dis-
position, and management which will minimize adverse effects
upon coastal zone resources.
(d) Alterations to existing land forms and vegetation, and construc-
tion of structures shall cause minimum adverse effect to scenic
resources and minimum danger of floods, landslides, erosion, sil-
tation, or failure in the event of earthquake.
The issuance of a permit would require the affirmative vote of a majority of
the total authorized membership of the regional commission, with the following
exceptions:
(a) No permit may be issued for any of the following purposes
without the affirmative vote of two-thirds of the total
authorized membership of the regional commission, or the
state commission on appeal:
(1) Dredging, filling, or otherwise altering any bay,
estuary, salt marsh, river mouth, slough, or lagoon.
(2) Any development which would reduce the size of any
beach or other area usable for public recreation.
(3) Any development which would reduce or impose restric-
tions upon public access to tidal and submerged lands,
beaches and the mean high tideline where there is no
beach.
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(4) Any development which would substantially interfere
with or detract from the line of sight toward the sea
from the state highway nearest the coast.
(5) Any development which would adversely affect water
quality, existing areas of open water free of visible
structures, existing and potential commercial and sport
fisheries, or agricultural uses of land which are exist-
ing on the effective date of this division.
(b) No permit is required for the following types of development:
(1) Repairs and improvements not in excess of seven thousand
five hundred dollars ($7,500) to existing single-family
residences; provided, that the commission shall specify
by regulation those classes of development which involve
a risk of adverse environmental effect and may require
that a permit be obtained.
(2) Maintenance dredging of existing navigation channels or
moving dredged material from such channels to a disposal
area outside the permit area, pursuant to a permit from
the United States Army Corps of Engineers.
(c) The regional commission may provide for the issuance of permits
by the executive director in cases of emergency or for repairs
or improvements to existing structures not in excess of $25,000
and other developments not in excess of $10,000. (Non-emergency
permits would not be effective until after reasonable public
notice and adequate time for review of such issuance had been pro-
vided. If any two members of the regional commission request at
the first meeting following the issuance of such permit, the
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issuance shall not be effective and the application shall be
set for normal public hearing).
(d) If, prior to the effective date of the initiative, any city
or county has issued a building permit, no person who has a
vested right in that permit shall be required to obtain an
additional permit from the regional commission, providing
that no substantial changes are made in any such development.
Any person shall be deemed to have a vested right if, prior
to April 1, 1972, he has in good faith and in reliance upon
the building permit diligently commenced construction and per-
formed substantial work on the development and incurred sub-
stantial liabilities for necessary work and materials.
SPECIFIC REVIEW AND APPEAL PROCEDURES
After an application for a development permit has been made, the initiative
provides that the regional commission shall give "written public notice of the
nature of the proposed development and of the time and place of the public
hearing." The hearing must be set no less than 21 nor more than 90 days after
the application has been filed, and the regional commission must act upon the
application within 60 days after the conclusion of the hearing. Such action
shall become final after the tenth working day unless an appeal is filed with-
in that time.
Once a decision on the application has been made by the regional commission, it
may be appealed by any party to the state commission. The state commission
"may affirm, reverse, or modify the decision of the regional commission." The
state commission may also decline to hear appeals that it determines raise no
substantial issues. If the state commission fails to act within 60 days after
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a notice of appeal has been filed, the regional commission's decision becomes
final. Appeals heard by the state commission shall be scheduled for a de novo
public hearing and shall be decided in the same manner and by the same vote as
regional commissions.
In addition to the above appeals procedure, any party may petition for judicial
review of decisions made by the state or regional commission. Any party may
also seek injunctive relief, or maintain an action for the recovery of civil
penalties. It is not necessary to post a bond prior to seeking injunctive re-
lief, and any person who is successful in obtaining a restraining order or who
prevails in an action to recover penalties is entitled to a personal award for
costs, including reasonable attorneys' fees.
OTHER PROVISIONS
AMENDMENTS
A 2/3 vote is necessary for the Legislature to amend any of the initiative pro-
visions.
TERMINATION
All initiative provisions terminate 91 days after the final adjournment of the
1976 Regular Session of the Legislature.
CONFLICT OF INTEREST
The initiative includes specific conflict of interest provisions designed to
restrict the participation of commission members and employees, former members
and employees of one year or less, and certain business associates from parti-
cipating in any official commission deliberations or other official matters on
their personal behalf. Current members and employees are further prohibited
from participating in an official capacity in any matter in which they, their
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family, or certain business associates have any financial interest.
PENALTIES
A civil fine of up to $10,000 could be imposed for violation of any of the in-
itiative provisions. An additional fine of up to $500 per day could be imposed
for each day an unlawful development "persists."
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CURRENT PROGRAMS [FEDERAL]
CURRENT POLICIES AND PROGRAMS FOR LAND USE CONTROL
THE FEDERAL ROLE
CURRENT POLICIES AND PROGRAMS FOR LAND USE CONTROL
THE FEDERAL ROLE
Most federal agencies with domestic functions exercise some type of influence
on land use controls and management. This section focuses on four types of
federal programs that have a direct or indirect impact on land use. These four
categories of federal programs are: programs which manage federally owned land;
programs which regulate some type of land use; grants for certain types of de-
velopment; and grants for land use planning. This section also analyzes pro-
posed federal legislation which authorizes financial assistance for state land
use agencies and state coastal management agencies.
Perhaps the most important role the federal government plays in land use con-
trol is the ownership and management of its property and installations. The
impact of federal lands extends beyond their boundaries. The location and man-
agement of federally-owned properties influences the land uses of the surround-
ing areas and often has regional impact.
Several federal agencies have permit regulations which affect coastal areas.
These agencies include the Corps of Engineers, the Coast Guard and the Atomic
Energy Commission.
The federal government finances a large portion of the development of public
facilities, including water and sewer facilities and transportation facilities.
These two types of facilities determine land use to a great extent and these
programs have delineated the land use patterns in many metropolitan areas.
The most important planning program is the Section 701 program administered by
the U.S. Department of Housing and Urban Development. Several other programs
provide a small level of support for planning efforts. These planning programs
have had a limited impact on land use control. The planning functions supported
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by the federal programs have been administratively separated from the imple-
mentation and control mechanisms at the state and local level.
The proposed federal legislation requires states to establish control over
areas having environmental importance and the bills set up sanctions if the
states fail to comply. These bills support and encourage greater state in-
volvement in land use planning but do not preempt local regulations.
These areas do not cover the complete federal role in land use. The federal
income tax policy has a critical influence on land development. Federal in-
come tax provisions on depreciation and property tax deductions have encour-
aged home construction. Depreciation regulations have also created strong in-
terest in subsidized housing. However, federal taxation regulations sometimes
conflict with each other and these regulations can conflict with the goals of
federal programs. The overall impact of these regulations is not clear.
There are also many other federal programs that have an indirect impact on
land use. One study lists over 100 federal programs that relate to land use
in some way. Many of them have only a limited impact on land use and are
clearly beyond the scope of this report. Each of these program agencies, how-
ever, are required to specifically report on the environmental effects of
their activities according to the terms of the National Environmental Protec-
tion Act of 1970.
MANAGEMENT PROGRAMS
The federal government owns approximately one-third of the land in the U.S.
Out of 2.3 billion acres, including Alaska and Hawaii, the U.S. government ad-
ministers about 762 million acres.
The federal lands in California compose 44.8 per cent of the total acreage
-41-
(44,903,872 acres out of a total of 100,206,720 acres). The bulk of this land
is owned by the Forest Service and the Bureau of Land Management.
The following table lists the major land holding agencies and the acres they
control in the U.S. and in California.
Agency
Acres
U.S.
California
Interior Department
540,326,592
20,921,372
Bureau of Land Management
451,043,353
15,584,932
National Park Service
30,124,006
4,165,888
Fish and Wildlife Service
27,970,161
65,966
Bureau of Reclamation
8,751,140
1,104,534
Bureau of Indian Affairs
5,033,849
200
Agriculture Department
186,888,833
20,051,304
Forest Service
186,472,236
20,050,572
Defense Department
30,599,503
3,906,238
Army
11,348,385
966,125
Air Force
8,377,360
472,741
Corps of Civil Engineers
7,259,973
86,528
Navy
3,613,785
2,380,844
The four most important federal land management agencies are the Bureau of
Land Management, the Fish and Wildlife Service, the National Park Service and
the Forest Service.
BUREAU OF LAND MANAGEMENT
(BLM) located in the Department of Interior, classifies, manages and disposes
of the public lands and their related resources according to the principles of
multiple use management. It also administers the mineral resources connected
-42-
with acquired lands and the submerged lands of the Outer Continental Shelf.
BLM typically controls lands of less value than those held by the other three
key agencies. It is responsible for the management of 60 per cent of the fed-
eral lands, and the BLM lands cover 20 per cent of the total land base in the
U.S. Lands under its jurisdiction are located primarily in the far West and
Alaska.
Public land resources managed by the Bureau include timber, minerals, wildlife
habitat, livestock forage, public recreation values and open space. BLM is
responsible for the survey of federal lands and maintains public records. It
is also responsible for mineral leasing on land held by other federal agencies.
FISH AND WILDLIFE SERVICE
Located in the Department of Interior, oversees the production and distribu-
tion of hatchery fish, the operation of a nationwide system of wildlife refug-
es, the regulation of migratory bird hunting, the management of fish and wild-
life populations by scientific research and methods, and the improvement and
protection of a quality environment for fish and wildlife resources to exist.
Most of the lands managed by the Fish and Wildlife Service are wildlife refug-
es. The National Wildlife Refuge System includes 330 refuges and game ranges
managed for migratory birds, protection of endangered species, public enjoy-
ment of natural resources, and economic benefits from sales of land products
and concessions.
The Fish and Wildlife Service also studies environmental impact statements and
water use projects proposed by federal or private agencies for the probable
effects of such projects on fish and wildlife resources and recommends measures
for their conservation and development. It places emphasis on conservation of
-43-
estuaries and development of comprehensive river basin plans which consider
future needs based on fish and wildlife.
NATIONAL PARK SERVICE
Located in the Department of Interior, manages an extensive system of nation-
al parks, recreation areas and monuments. Its purpose is to conserve the
scenery and the natural and historic objects and the wildlife of the park
areas. Park areas are divided into three categories: natural, historical
and recreational. The Park Service works to develop the full potential of
each area for the public's enjoyment and education and to protect the natural
and cultural resources in those areas.
FOREST SERVICE
Located in the Department of Agriculture, manages 154 national forests and 19
national grasslands in 41 states. The Forest Service manages these lands on
the principles of multiple use and sustained yield. It balances the large de-
mand for wood and paper products with other resources and benefits such as
recreation, wildlife habitats, livestock forage and water supplies.
The Forest Service protects these lands from fires, erosion, floods and water
and air pollution. Timber harvesting methods are used which will protect the
land and streams, assure rapid renewal of forests and have minimum impact on
scenic and recreation values. Some 14.5 million acres are set aside for wild-
erness and primitive areas where timber will not be harvested.
Major technical support has been provided by the Forest Service to the Tahoe
regional planning agencies in preparing the multi-purpose land use plan and
strategy for the entire Basin.
TRANSFER OF FEDERAL LANDS TO STATE AND LOCAL GOVERNMENTS
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The federal government is currently surveying its property and turning over
selected parcels to state and local governments. These excess parcels are
primarily lands managed by the Defense Department.
The transfers are usually designated for parks and open space. So far, 144
tracts in 39 states have been converted to parks. This program, known as the
Legacy of Parks program, began two years ago. The first transfer was at Camp
Pendleton in California. The Defense Department leased six miles of the 17
mile coastline of Camp Pendleton to the State of California.
The Property Review Board, which is the operating agency for this program, in-
tends eventually to survey all federal lands. At the present time it is foc-
using its efforts on military bases making up 58 million acres.
The Board has turned up major problems in the management of federal property.
Donald Rumsfield, director of the Board, stated: "It was apparent that many
thousands of acres of federal real estate throughout the country were being
wastefully managed, while other vast areas were unnecessarily fenced off,
their enjoyment denied to the American people to whom they belong."
INTER- AND INTRA-GOVERNMENTAL COOPERATION
The extent of federal ownership of land poses a major difficulty for land use
agencies in California and other Western states. It is difficult for the land
use agencies in these states to plan for non-federal lands because they are
unable to obtain sufficient information on federal land management activities.
The state and local governments do not have any input into federal decisions
and they are not consulted before the decisions are made. The problem for
state agencies is compounded by the fact that federal lands are often scattered
in checkerboard fashion.
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The lack of intergovernmental cooperation in land use decisions also poses
problems for the federal land management agencies. Unplanned or badly planned
land use patterns on the periphery of federal lands threaten the quality of
national parks, wildlife refuges and wilderness areas. These problems could
be avoided or alleviated with better intergovernmental cooperation and coordi-
nation.
Federal land management agencies often fail to coordinate decisions among
themselves, but lack of intra-governmental cooperation is usually unintention-
al. The decision makers are often unaware of the land use impacts of their
decisions.
A recent report from the Senate Committee on Interior and Insular Affairs high-
lighted this problem.
We have conducted too many of our programs and activities in inex-
cusable ignorance of their often contradictory and deleterious ef-
fects. Illustrative of this was the Everglades Jetport controversy.
In the Senate Interior Committee hearings in June 1969, three pres-
tigious federal agencies were (found to be) undertaking activit-
ies--flood control, airport development, and national parks and rec-
reation programs--in compliance with their mission-oriented guide-
lines but with little appreciation of the contradictory, self-de-
feating, and environmentally destructive land use impacts of those
activities.*
Another major problem in federal land use management is the lack of an adequate
data base for land use planning or for decisions having an important land use
impact. Another Senate committee report focuses on this problem.
Four years ago, Congress wrestled with a final decision on the issue
of whether dams would be constructed in the vicinity of the Grand
Canyon. Last year, this Committee held a series of hearings on the
Four Corners power question, considered by many to present an equal
or greater threat to the environment. The issues involved were much
the same-growing West Coast energy needs and environmental protec-
tion--but in neither case, when the first decisions were made, were
the issues properly addressed with data sufficient to identify the
*National Land Use Policy Background Papers, Committee on Interior and Insular
Affairs, U.S. Senate, April 1972, p. 7.
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various options and their potential environmental, economic and soc-
ial consequences.*
The use, management and disposition of the federal lands obviously is extremely
important in California. Several recent events and current proposals illus-
trate this fact. The National Park Service established the Point Reyes Nation-
al Seashore in 1962. This park covers over 64,000 acres of coastal area. The
Defense Department recently leased six miles of beach area in Camp Pendleton
to the State of California. The Defense Department is reviewing all its hold-
ings in California, and the state will have an opportunity to purchase any
lands that are declared excess property. Congress is considering a Golden Gate
National Seashore which would encompass 8,000 to 16,000 acres at the entrance
to the San Francisco Bay.
ENVIRONMENTAL PROTECTION ACT
The National Environmental Protection Act (NEPA) was designed to make environ-
mental protection a part of the mandate of every federal agency. NEPA requires
each agency to thoroughly evaluate the environmental impact of its decisions.
In particular, if an agency is involved in federal activity that significantly
affects the quality of the environment, it must file a detailed statement which
discusses the following topics:
1. the environmental impact of the proposed action;
2. any adverse environmental effects which cannot be
avoided should the proposal be implemented;
3. alternatives to the proposed action;
4. the relationship between local short-term uses of
man's environment and the maintenance and enhance-
ment of long-term productivity;
Land Use Policy and Planning Assistance Act of 1972, Report of the Committee
on Interior and Insular Affairs, June 19, 1972, p. 40.
-47-
5. any irreversible and irretrievable commitments of
resources which would be involved in the proposed
action should it be implemented.
REGULATORY PROGRAMS
While a number of federal agencies have a direct or indirect regulatory role
in land use decisions, three of them are of particular importance to coastal
areas. These agencies require permits for certain uses in and around waterway
areas and regulate specific land or water uses.
CORPS OF ENGINEERS
The Corps has responsibility for planning, programming and budgeting for the
improvement of rivers, harbors and waterways for flood control and related pur-
poses. It constructs, operates and maintains developments such as dams and
causeways in navigable waterways. It also administers the laws for the pro-
tection and preservation of these waters.
The Corps conducts studies of the most suitable methods of beach protection and
restoration. It provides assistance to states, counties and municipalities for
determining appropriate locations for recreation facilities. Congress and the
courts are interpreting the statutory authority of the Corps to include consid-
eration of public access, recreation, and protection of ecological and environ-
mental values in its projects and in waterways under its surveillance.
The Corps has provided considerable support to management and planning efforts
directed at the California Coastline as evidenced by their National Shoreline
Studies published in 1971. These reports focused on a "California Regional In-
ventory", "Shore Management Guidelines" and "Shore Protection Guidelines".
The Corps' role is particularly important in coastal areas because it regulates
-48-
all types of development which affect the navigable capacity of waterways.
No one can discharge refuse into navigable waters without a permit from the
Corps. Finally, anyone building a pier or bulkhead, dredging or drilling
must obtain a permit from the Corps. The Corps can fine violators and obtain
injunctions against them.
COAST GUARD
The Coast Guard is the federal maritime law enforcement agency. Its activit-
ies include search and rescue missions, boating safety, merchant marine safety
and navigation aids.
Perhaps the most important function of the Coast Guard that affects land use
is the regulation of bridges. Any governmental or private agency building a
bridge over navigable waters must receive approval from the Coast Guard. The
Coast Guard oversees the location, clearance and lighting of bridges. It also
can alter or remove bridges that obstruct navigable waterways.
ATOMIC ENERGY COMMISSION
The Atomic Energy Commission was established to provide and administer programs
for research and development in atomic energy uses, international cooperation,
production of atomic energy and special nuclear materials and the dissemina-
tion of scientific and technical information. It has responsibility to protect
the safety of the public and to regulate the control and use of nuclear mater-
ials.
The AEC regulatory functions include licensing and regulation of the civilian
use of nuclear materials. It issues permits for the construction of nuclear
power plants and any other nuclear facilities. In carrying out these regula-
tory functions, it negotiates agreements with states for their assumption of
-49-
certain licensing and regulatory authority for atomic energy activities. En-
vironmental impact review is required by AEC prior to the issuance of approval
of any proposed nuclear power plant site.
DEVELOPMENT PROGRAMS
The federal government has set up a large number of grants, loans, and other
forms of assistance to state and local governments for development projects.
The two types of development projects which have the greatest impact on land
use are transportation and water and sewer construction. The two major trans-
portation programs are the Interstate Highway System and the ABC program which
finances primary and secondary roads. Four different agencies finance the
planning and construction of water and sewer facilities.
TRANSPORTATION
Federal aid to assist states in road construction began in 1916. The first
federal assistance to urban highway programs was in 1944. The inter-state
highway program, started in 1956, produced a three-to-fourfolo increase in
federal expenditure for transportation assistance. Congress enacted extensive
requirements and physical standards in 1962.
ADMINISTRATION
The U.S. Department of Transportation has numerous transportation programs in-
cluding such items as beautification and mass transit. The two largest pro-
grams are the interstate highway program and the ABC program. The federal
government pays ninety per cent of the cost of the interstate system which
will total 43,000 miles when completed. The program pays fifty per cent of
the cost with the remaining share covered by the state governments.
-50-
Congress has established the formulas for apportionment of funds for these
two programs. Monies for interstate highways are apportioned to each state
on the basis of the state's estimated share of the total financing required
to complete the system. The ABC program distributes funds according to each
state's relative share of population, land area and road mileage.
The funds for highway programs are disbursed to state highway departments.
Each state submits a plan, specifications and cost estimates. DOT approves
a state transportation system and then provides funds as the states complete
approved individual projects within that system. Federal funds can be used
to reimburse planning, design and construction.
BUDGET
The primary source of financing for both programs is the Highway Trust Fund.
A four cent tax on gas, oil, and rubber produces the money for the fund.
Congress makes authorizations for expenditures on the basis of the amount in
the fund.
Total annual authorizations for the fund increased markedly in the late 50's
from $575 million in 1955 to $3.4 billion in 1960. Authorizations totaled
$5.4 billion in 1972. Interstate System authorizations represent about three-
fourths of the 1972 figure or $4 billion.
PROPOSED CHANGES
Several important changes will probably take place in federal transportation
policy in the next few years. The 1972 National Highway Needs Report rec-
ommends that a Single Urban Fund be established to fund urban highway and
mass transit projects. The purpose of this change is to provide increased
resources to deal with the problems of transportation in our major metropolitan
-51-
areas and to provide an assured pattern of program growth by funding both
highway and mass transit projects from the highway trust fund. The Interstate
highway program would be continued as a separate program.* Apparently DOT
will place increasing emphasis on solving urban transportation as the inter-
state system nears completion.
WATER AND SEWER
Four federal programs make grants to states and localities for water and sew-
er projects. The following agencies administer these programs: Environmental
Protection Agency, Department of Housing and Urban Development, Farmers Home
Administration and Economic Development Administration.
OFFICE OF WATER PROGRAMS
This agency is located in the Environmental Protection Agency and provides
funds for the construction of wastewater treatment works, including inter-
cepting and outfall sewers. Collector (residential sewer systems) are not
eligible for grant assistance.
The program assisted approximately 9400 public facilities between FY 1957 and
FY 1969. EPA took over the program in December 1970 when EPA was established.
Although EPA has many grant programs to assist pollution control, the waste-
water treatment works construction grant program accounted for $2 billion of
the $2.4 billion appropriated to EPA in FY 1972.
The agency distributes funds to the state principally on a population formula,
thereby favoring more populous states. The federal share currently may not
exceed 55 per cent of the planning and construction costs. The matching pro-
visions are complex and the federal contribution is dependent on the state
share and the local share. For example, if the state share is 25 per cent
and the project conforms to enforceable water quality standards, the federal
*Part 1 of 1972 National Highway Needs Report, 1972, p. VII.
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share may go up to 50 per cent. Between FY 1968 and FY 1971 appropriations
increased from $203 million to $1 billion. The appropriation in this program
essentially doubled in FY 1972 to $2 billion. Pending legislation in Congress
would raise the funding to a level of $5 billion in FY 1975.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
This department administers two community facilities programs which provide
grants for 1) basic water and sewer facilities and 2) public facilities loans.
The basic water and sewer program provides direct grants of up to 50 per cent
of the cost of construction. Eligible projects include those providing for
the storage, treatment, purification and distribution of water, as well as
those for the collection and transmission of storm and sewer water. The sew-
age grants cannot be used for waste treatment facilities and are primarily
designed to support construction of collector lines. The grants serve to com-
plement the grants EPA awards for wastewater treatment works.
In order to receive federal assistance, a project must be consistent with an
officially coordinated or unified program for an areawide water or sewer fac-
ilities system as part of the planned development of the area. Local public
bodies, state and interstate agencies, and boards or commissions established
by state law to finance water and sewer improvement projects are eligible for
grants.
Congressional appropriations for this program totaled $350 million in FY 1971
and approximately $500 million in FY 1972. However, despite the large demand
for water and sewer funds at the state and local level, the Office of Manage-
ment and Budget has allowed expenditures of only $150 million per year for
several years.
PUBLIC FACILITY LOANS
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HUD also grants public facility loans to help finance public facility construc-
tion when credit to support such projects is not otherwise available on reason-
able terms. Loans may be made to municipalities and other political subdivi-
sions having populations under 50,000 but priority is given to communities
with less than 10,000 inhabitants needing funds to construct water, sewer and
gas distribution systems.
The public facility loans which were authorized by the Housing Amendments of
1955, must be of sound value or adequately secured SO as to provide reason-
able assurance of repayment. Interest rates are set by statute at either 0.5
per cent above the rate on all interest-bearing obligations comprising the fed-
eral debt or 3 per cent whichever is higher. Maturities on these loans are
limited to 40 years.
Loan assistance is concentrated in areas with credit shortages, chiefly in
Southeastern and Southwestern states. In intra-regional terms, the assistance
goes chiefly to very small, poor, rural communities. There is virtually no
flow of funds to metropolitan areas or growth centers. Net loan approvals
were $40 million in FY 1971.
ECONOMIC DEVELOPMENT ADMINISTRATION
The principal EDA assistance program affecting water and sewage line construc-
tion is the grant/loan program for public works and development facilities.
Grants and direct loan funds are used to assist communities whose economic
growth is lagging behind the rest of the nation to construct or improve the
basic public services and industrial infrastructure required to attract
growth-generating enterprise.
Eligible communities are in areas designated by EDA according to the rate
of unemployment, population loss, low income, and areas experiencing a sudden
-54-
rise in unemployment 50 per cent above the national.
Direct loans and two types of grants are available under the program. Basic
grants provide up to 50 per cent of the project cost, and supplementary grants
can raise the federal share to 100 per cent of the total cost. Grants account
for approximately 65 per cent of the program's funds.
Although this program is authorized up to $500 million, Congress has appro-
priated about $160 million for each of the past several years. Approximately
60 per cent of the funds go for water and sewer facilities, about half expended
for plants and the other half for collection or distribution lines.
FARMERS HOME ADMINISTRATION
This U.S. Department of Agriculture agency has more than 20 major loan and
grant programs. Its soil and water program provides loans and grants to non-
profit organizations to construct community water and sanitary sewer systems.
Public or quasi-public bodies and corporations not operated for profit which
will serve rural areas of up to 5500 population may receive financial and
technical assistance in planning, developing and improving or extending water
and waste disposal systems. Loans and grant funds may be used to cover costs
related to water supply pipelines and sewer lines.
A borrower's total indebtedness for assistance may not exceed $4 million at
any one time. Grants may be made to help finance up to 50 per cent of the
development cost of a water or waste disposal system when grants are needed
to reduce to a reasonable level the charges the users will pay.
The funding level for rural water and waste disposal grants was $41 million
in FY 1971. Direct loans totaled over $32 million the same year.
-55-
OTHER DEVELOPMENT PROGRAMS
The U.S. Department of Housing and Urban Development funds up to 50 per cent
of the total cost of acquisition and development of open space land in urban
areas. Development costs may include roadways, basic utilities, recreational
facilities, improvements of acquired structures and preservation of historic
and architecturally significant structures.* Only urban areas are eligible
to receive the grants.
The federal obligation in FY 1971 was $75 million and this level increased to
an estimated $100 million in FY 1972. During FY 1972, HUD approved 551 open
space grants.
Other federal programs having an impact on land use are home mortgage insur-
ance and urban renewal. HUD's mortgage insurance program enables homebuyers
to obtain mortgages with relatively low down payments. In FY 1971 HUD extended
mortgage insurance through its non-subsidized Section 203(b) program to approx-
imately 220,000 homes valued at over $4.6 billion. This program has been a
major factor in the development of suburban areas around the large central
cities.
The urban renewal program provides grants for surveys and planning, land ac-
quisition and clearing, rehabilitation of existing structures and installation
of public improvements in areas designated for renewal. These grants cover
two-thirds of the project costs. The federal obligations for this program in
FY 1971 were $551 million. The program is proposed to be folded into revenue
sharing in 1973.
Airport grants, available for the Federal Aviation Administration, fund 50
per cent of the cost for land acquisition, site preparation and runways,
*Catalog of Federal Domestic Assistance, Office of Management and Budget,
1972, p. 397.
-56-
lighting utilities and other basic facilities. Federal obligations totaled
$170 million in FY 1971 and are estimated at $280 million for FY 1972. FAA
also provides planning grants for the development of airport master plans
and system plans.
The Department of Transportation assists in financing the acquisition, con-
struction and improvement of facilities and equipment for urban mass trans-
portation systems. Grants are made for not more than two-thirds of project
costs. Grant obligations were $284 million in FY 1971 and increased to an
estimated $510 million in FY 1972.
PLANNING PROGRAMS
Four federal programs provide grants to state governments which are earmarked
for planning purposes. These programs are designed to increase the states'
planning capability and to enable the states to meet legislative require-
ments for receipt of development funds. The Section 701 program has played
a major role in the establishment of state and local planning agencies all
over the country. However, the other three programs have had a rather limited
impact partly because of the low level of funding.
701 PLANNING PROGRAM
AUTHORITY
The National Housing Act of 1954 set up the Section 701 planning program.
The legislation stipulates that grants to state agencies are authorized for
the provision of planning assistance to municipalities of less than 50,000
population and to counties without regard to population. However, if a county
has a population greater than 50,000 and is located within a metropolitan
area, its planning must be coordinated with a program of comprehensive planning
-57-
being carried out for the metropolitan area. Regional planning agencies and
planning agencies in cities of over 50,000 can apply for grants directly to
HUD.
ADMINISTRATION
The U.S. Department of Housing and Urban Development administers the Section
701 program. The program is designed to promote sound local, areawide and
statewide development through comprehensive planning. It provides grants of
up to two-thirds of the cost of a planning project in most cases. All appli-
cants must have an overall program design and they have to make application
to HUD annually.
Eligible activities under the program include the preparation of development
plans, policies and strategies; implementation measures; and the coordination
of related plans and activities being carried on at various levels of govern-
ment. A broad range of subject may be considered in the course of the compre-
hensive planning process. They include land development patterns, housing,
community facilities, the development of human resources and the development
and protection of natural resources.*
STATE AGENCIES
The activities carried out by state planning agencies vary from state to
state. Generally, these agencies conduct a statewide planning program and
provide technical assistance to small communities. Some state agencies focus
on statewide planning while a few limit their activities to providing tech-
nical assistance.
BUDGET
*Catalog of HUD Programs, HUD-214-SP, July 1971.
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The funds authorized for the program have increased markedly since the pro-
gram's inception. In 1955 Congress authorized $1 million, in 1964, $21 mil-
lion and in 1970, $50 million. In 1971, HUD merged the Community Renewal
Program which provided planning grants to cities over 50,000 population with
the 701 program. As a result of this merger, the authorization for the 701
program in 1972 fiscal year totaled $100 million.
PROPOSED CHANGES
Several changes are currently taking place in the administration of the pro-
gram. HUD is now emphasizing that the 701 grants are for planning and manage-
ment assistance. HUD apparently is focusing on management because many
agencies have developed plans rather than setting up a planning process.
In line with this emphasis, HUD is aiming to support the chief executive of
state and local governments in formulating and coordinating community develop-
ment strategies.
The proposed 1972 Housing Act increases the authorization for the program
from $100 million to $200 million. It also replaces the federal two-thirds
matching grant with an 80 per cent-20 per cent matching ratio.
OUTLOOK
The major contributions of the program have been the development of a state
planning capability in virtually every state and the support of areawide
planning agencies, COG's (Council of Governments). In the next four years,
the program should improve the management capability of state and local gov-
ernments.
WATER RESOURCES PLANNING COUNCIL
AUTHORITY
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Several other federal programs provide monies to state agencies for plan-
ning purposes. The Water Resources Planning Council prepares a continuing
inventory of water resources throughout the country. It is an independent
agency set up in 1965 by the Water Resources Planning Act. The two main
functions of the Council are to establish and assist river basin commissions*
and to administer federal financial grants to states for water and related
land resources planning.
ADMINISTRATION
All states are eligible to receive the planning grants. A designated state
agency, usually the state agency dealing with natural resources, must submit
an application that indicates the intended use of the funds. The planning
effort should be aimed at the conservation, development and utilization of
water and other related land resources in a manner which protects the public
interest. The grants cannot be used for construction. Otherwise, the states
have extensive flexibility in using the funds.
The appropriated monies are distributed on the basis of several criteria.
Sixty per cent of the grant money is determined by state population, land
area and income. The remaining. forty per cent is distributed on the basis
of need.
BUDGET
The original legislation authorized $5 million per year for ten years begin-
ning in 1967. Appropriations have been relatively low, however, reaching
some $3.7 million for FY 1971.
BUREAU OF OUTDOOR RECREATION
Seven commissions have been created thus far. Their jurisdictions cover
most of the northern half of the country.
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The Land and Water Conservation Act of 1962 established the Bureau of Out-
door Recreation. This bureau, located in the U.S. Department of Interior,
supplies grants to states for the planning, acquisition and development of
outdoor recreation areas. In order for a state to receive acquisition or
development grants, it must develop a comprehensive statewide outdoor rec-
reation plan and update and refine it on a continuing basis. The plans
identify the capital investment priorities for acquiring, developing and pro-
tecting significant outdoor recreation resources within a state. The 50-50
matching grants cover planning, acquisition and development.
ECONOMIC DEVELOPMENT ADMINISTRATION
EDA is an agency of the Department of Commerce. It has authority to provide
grants and direct loans to non-profit organizations for the planning and con-
struction of public works, industrial parks and vocational educational facil-
ities and in general to organize projects designed to stimulate economic
growth and employment.
EDA supplies planning grants to a county or multi-county organizations. These
grants enable the local EDA organization, composed of elected officials and
private individuals, to employ a full time staff. The staff must submit an
Overall Economic Development Program for the area before it is officially
designated as an EDA district.
The fiscal year 1972 appropriation for EDA planning grants was $5.5 million.
EDA distributed these funds to 124 districts.
LEGISLATION
Congress is considering a number of bills which would have a direct impact
on state land use controls. Several of these bills would return control for
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developments with regional impact from local government to the states. Other
bills support state regulation of coastal areas. Overall, these pieces of
legislation reflect a growing support in Congress for improved state control
over large-scale development and over areas of environmental importance.
LAND USE POLICY AND PLANNING ASSISTANCE ACT OF 1972 (S 632)
This Act requires the states to set up a state-wide land use planning pro-
cess. Each state's land use planning program would focus only on those land
use decisions which have an effect outside of the local land use regulatory
agency. The American Law Institute estimates that only 10 per cent of all
land use decisions fall into this category.
The state planning process is designed to develop a data base on the state's
land and natural resources, and its population and economic trends, and pro-
jections of the quantity of land needed for various uses. The states are re-
quired to have a staff and an appropriate planning agency three years after
enactment.
The bill places emphasis on the implementation of the state land use programs
rather than their substance. It requires state land use programs to exercise
determinative state authority over areas of critical environmental concern,
large-scale developments of more than local significance and key facilities
and to assure that local regulations don't unreasonably restrict developments
of regional benefit.* The legislation requires that a land use program deal-
ing with these four areas be developed within five years.
The proposed program sets up both carrot and stick for states. The annual
authorization is $100 million for eight years. Under the bill, the U.S. gov-
ernment would fund 90 per cent of the state costs for the first five years
*Land Use Policy and Planning Assistance Act of 1972, Report of the Committee
on Interior and Insular Affairs, U.S. Senate, 1972, p. 52.
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and two-thirds of the cost for the next three years.
SANCTIONS
If the states do not meet the requirements in the legislation, the federal
government cuts off a portion of the state's funds in three federal grant-in-
aid programs. The proportion is 7 per cent the first year and increases to
21 per cent by the third year. The three programs are the 1970 Airport and
Airway Development Act, the Land and Water Conservation Act of 1965 and var-
ious federal highway programs excluding the Interstate Highway System.
"The three programs for which funds would be withheld are deemed to have the
most significant long-range and irreversible impacts upon land-use patterns
because of the exceptional influence they have over public and private devel-
opment. **
The Interior Department estimates that the three programs on which sanctions
would be imposed provide $1,756,775,000 to the states. California is the
state that could be affected most by the sanctions in the event of noncompli-
ance. It now receives $125 million from the programs. About $9 million could
be withheld under the 7 per cent penalty and over $26 million could be with-
held under the 21 per cent penalty. Thus, there is substantial incentives
for a state to participate in the land use program.
If a state is declared ineligible, it may appeal to a three-man board. The
board is composed of a governor and an impartial federal official selected
by the President and an impartial citizen selected by the other two board mem-
bers.
*Land Use Policy and Planning Assistance Act of 1972, Report of the Committee
on Interior and Insular Affairs, U.S. Senate.
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FEDERAL ROLE
While most of the bill's requirements deal with the ability to implement the
land use planning process, rather than the substance of the activities, it does
leave the door open for federal review of areas designated to be of critical
environmental concern. The states cannot exclude from the areas of critical
environmental concern any substantial areas which are of major national signi-
ficance and require special planning and management. If a state requests,
the federal government will indicate those areas of major national significance
before the five-year deadline for submission of a land use program. Areas of
critical environmental concern, according to the Senate report, include coastal
wetlands; marshes; other lands inundated by tides; beaches and dunes; signi-
ficant estuaries; shorelands; flood plains of rivers, lakes and streams; scen-
ic areas, forest and related land which require long stability for continuing
renewal, etc. In effect, the federal government can control the designation
of these areas and will guide the states in selecting them.
INTERAGENCY COOPERATION
The administration of the program comes under the Assistant Secretary for
Planning in the Department of Interior. However, nine other federal agencies
must participate in the federal review of the state programs and the determin-
ation of grant eligibility. In addition, HUD not only makes general recom-
mendations, but also indicates if it is satisfied with the large-scale devel-
opment, developments of regional benefit and key facility components of the
state land use program.
FEDERAL-STATE COOPERATION
Federal grant and loan programs such as water and sewer construction must
be consistent with the approved state land use programs. The state land use
-64-
agency must indicate its views on applications from state and local govern-
ments. These applications to be reviewed should have significant land use com-
ponents in an area or areas subject to the state land use program.
The bill sets up two requirements for federal and state coordination in con-
trolling land use in federally-owned lands and in the areas adjacent to fed-
eral lands. The federal agencies owning land within a state must coordi-
nate their plans, programs and policies for their lands with the state land
use agency. If a federal agency plans any changes in the use of their lands,
it must publish a statement outlining the consistency of the proposed changes
with the state and local land use programs. Second, the states must try to
ensure that federal lands are not degraded because of adjacent land uses.
This requirement applies particularly to national parks and wilderness areas.
The Secretary of Interior, on his own authority or at a governor's request,
can set up ad hoc committees to deal with specific conflicts that arise in
the management of federal lands and adjacent areas. Representatives of fed-
eral and state agencies, local governments and user groups will sit on the
committees.
STATE-LOCAL ROLE
While the states must exercise determinative authority over the four land use
areas, they have the option of either directly planning for these areas or
letting local agencies carry out the planning. If a state chooses the latter
option, it must establish guidelines and controls for the local agencies to
follow.
The Senate report says: "The Act does not require or contemplate radical or
sweeping changes in the traditional relationship and responsibility of local
government for land-use management. It does, however, require that the states
-65-
play an active role in major land-use planning and management decisions which
are of regional, state or national concern."
OUTLOOK
Several Senate committees want to review the bill. Both the Public Works
and Banking, Housing and Urban Affairs Committee chairmen will probably re-
quest changes. This process of committee review may take several weeks or
several months. Once the bill is finally put up for a vote, it should pass
but committee reviews may delay passage this session.
NATIONAL LAND POLICY AND MANAGEMENT ACT OF 1972 (HR 7211)
This legislation is sponsored by Wayne Aspinall, chairman of the House In-
terior and Insular Affairs Committee. A section dealing with state land use
control of private lands and a section dealing with the management of public
lands are both included in the bill (HR 7211).
PRIVATE LANDS
The private lands section is similar to the Land Use Policy and Planning As-
sistance Act (S 632). The primary difference is the funding level for the
state land use programs. The House bill authorizes $204 million spread over
five years. The amount and federal share decrease over the five years. The
authorization for the first year is $54 million with the federal share at 90
per cent; for the next two fiscal years, $45 million and a federal contribu-
tion of 75 per cent, and for years following $30 million with a 50 per cent
federal payment.
The controls, sanctions and administration of the state land use programs are
almost identical to those outlined in the Senate bill. It requires the state
land use planning programs to establish control over areas of environmental
-66-
concern, large-scale developments, key facilities and developments of reg-
ional benefit.
If a state does not establish an acceptable planning process, federal funds
for airport, highway and land water conservation are withheld on a graduated
scale of 7 per cent, 14 per cent and 21 per cent over three years. The Sen-
ate bill designates that these funds are to be held in escrow and given to
states when they obtain or regain eligibility. The House bill is more severe
and stipulates that the withheld funds will be distributed to eligible states.
The Assistant Secretary for Land Use Policy and Planning in the Department
of Interior will administer the program. The House bill sets up a National
Land Use Policy and Planning Board to coordinate the land-use activities of
federal agencies and three national land-use citizen advisory committees for
federal agencies, and it encourages citizen advisory councils of 10-15 mem-
bers for regions, states, districts and localities.
PUBLIC LANDS
The public lands section of the House bill is in part based on the 1970 re-
port of the Public Land Law Review Commission. Mr. Aspinall was largely res-
ponsible for initiations of the commission's six-year study of the use of
public lands.
This section requires all federal agencies which manage public lands to draw
up land use plans. The objective is to establish uniformity in the acquisi-
tion and management of federally-owned land, for mining and mineral leasing
claims, animal grazing leases, timber harvesting, recreational activities and
other uses. In order to achieve this objective, the bill provides for reten-
tion of federal ownership of the bulk of public lands, transfer of public
lands to non-federal ownership for purposes designated by statute, the management
-67-
of such lands in a manner that protects the environment, the coordination of
regional, state and local land management plans, and public participation in
all procedures leading to the classification of any public plan. *
REVIEW OF PUBLIC LANDS
Under the legislation, Congress will review land set aside by executive with-
drawals which includes most national forests in the western part of the coun-
try most wildlife refuges and some national monuments. Congress would not re-
view lands that it has given public status such as national parks and wilder-
ness areas.
The Secretary of Interior will have to examine each withdrawal and submit
legislation detailing its purpose and necessity. However, the withdrawals
will remain in effect unless they terminate or are revoked by Congress.
When land tracts of more than 25,000 acres are to be sold or classified for
a use that would exclude other uses for more than a year, the agencies in-
volved would have to seek permission of the Senate and House interior com-
mittees. Both panels must approve.
OUTLOOK
Environmentalists are strongly opposing the bill. The review of public lands
would encompass almost all lands now managed by federal agencies including the
Bureau of Land Management. It could lead to a change in usage or sale of
areas already set aside as national forests or wildlife refuges.
The Administration is also opposing the bill, and efforts are being made to
separate the public lands section and the private lands section. If the pri-
vate lands section is split off, it will most likely pass the House. Because
Norman Beckman, "Toward Development of a National Urban Growth Policy,"
Journal of American Institute of Planning, July 1972, p. 246.
-68-
this section is quite similar to the Senate bill (S 632), a Senate-House con-
ference on the two bills would face little difficulty and congressional enact-
ment would probably follow.
However, Wayne Aspinall opposes splitting his bill. If it is not split, en-
vironmentalists and the Administration are expected to move to defeat it. In
that event, legislation dealing with state land use programs covering private
lands would not come out of Congress this year.
NATIONAL RESOURCE LANDS MANAGEMENT ACT (S 2401)
The Senate is also considering a public lands bill. The National Resource
Lands Management Act (S 2401) gives the Bureau of Land Management a firm oper-
ating charter. It does not deal with public lands managed by other federal
agencies.
Unlike the Aspinall bill, this legislation uses existing procedures for execu-
tive withdrawals such as national parks, monuments or forests. It declares
that the federal government should continue to own the lands administered by
the Bureau of Land Management (BLM). However, the Secretary of Interior can
sell or dispose of these lands after considering environmental management and
public objectives. Finally, the bill requires the Secretary of Interior to
make an inventory of all BLM lands giving priority to areas of critical en-
vironmental concern and potential wilderness.
NATIONAL COASTAL ZONE MANAGEMENT ACT (S 3507)
This Act, which has already passed in the Senate, authorizes the Secretary
of Interior* to make grants to coastal states for management programs covering
*The Act originally placed this program under the Secretary of Commerce. How-
ever, the House version of this bill authorizes the Secretary of Interior to
administer the program.
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the land and water resources in coastal areas. The coastal states are those
bordering on the Atlantic or Pacific Ocean, Gulf of Mexico and the Great Lakes.
The outer limit of the coastal zone is the limit of states' legal authority;
the inner limit is flexible. It extends inland only far enough to allow the
management program to control the lands whose use has a direct impact on the
coastal water. Coastal waters include harbors and estuary-type areas such
as bays and marshes.
ADMINISTRATION
The development grants to the coastal states cannot exceed two-thirds of the
cost of a state management program, and no state is eligible to receive more
than three annual grants. Once the Secretary of Interior approves a state's
coastal zone management program, it is eligible for annual administrative grants
covering up to two-thirds of the cost of administering the program. A state
may pass-through some of these funds to local, areawide or interstate agencies.
To be eligible for an administrative grant the bill specifies that a state
must establish one of the following methods to control land use: (1) state
establishment of criteria and standards for local implementation, subject to
administrative review and enforcement of compliance; (2) direct state land
and water use planning and regulation; or (3) coastal state administrative re-
view for consistency with the management program of all development plans,
projects, or land and water regulations, including exceptions and variances
thereto proposed by any state or local authority or private developer, with
power to approve or disapprove after public notice and an opportunity for
hearings. "*
*National Coastal Zone Management Act of 1972, Report of the Senate Committee
on Commerce, April 19, 1972, p. 13.
-70-
The bill also establishes grants for the acquisition, development and opera-
tion of estuarine sanctuaries. The grants are designed to create national field
laboratories to gather data and make studies of the natural and human pro-
cesses occurring within and directly affecting the estuaries.
BUDGET AUTHORIZATION
The authorization for the program development grants is $12 million for FY 1973
and the necessary sums until the end of FY 1977. The funding for the admin-
istrative grants is $50 million to be distributed as necessary each year until
expended. The bill allocates $6 million for the estuarine sanctuary grants.
FEDERAL-STATE COOPERATION
The Act sets up several requirements for intergovernmental and interagency
cooperation. Federal agencies must administer programs in the coastal zones
so that their activities are consistent with the state management programs.
A federal agency cannot undertake a development project in a coastal zone
that is inconsistent with a state program unless the Secretary of Interior
finds the project is consistent with the objectives of the legislation.
State and local applications for federal grants for programs impacting coastal
areas must include the coastal management agency's statement on the relation-
ship of the proposed program to the state management program.
The Act requires applicants for a federal license or permit to conduct any
new activity in a coastal zone to submit a state certification that the pro-
posed activities comply with the state's approved management program.
COASTAL ZONE MANAGEMENT ACT (HR 14146)
The House has recently passed a Coastal Zone Management Act which is simi-
lar to the Senate bill. It sets up two-thirds development and administra-
tive grants for state coastal management agencies and 50 per cent grants for
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acquisition and development of estuarine sanctuaries.
The House bill outlines the characteristics of the state management programs
in greater detail. Each program must include: (1) an identification of the
boundaries of the portions of the coastal state subject to the program;
(2) a definition of what will constitute permissible land and water uses;
(3) an inventory and designation of areas of particular concern; (4) an iden-
tification of the means by which the state proposes to exert control over
land and water uses; (5) broad guidelines on priority of uses in particular
areas; and (6) a description of the organizational structure proposed to
implement the management program.
The bill also authorizes the Secretary of Interior to designate marine sanc-
tuaries. These areas would be set up to preserve or restore their conser-
vational, recreational, ecological or esthetic values. They would be areas
located outside the coastal zone and superjacent to the subsoil and seabed
of the continental shelf.
OUTLOOK
There was little opposition to the coastal zone legislation in the House.
Since the Senate and House bills are similar, final approval for a coastal
zone management act will probably come in the next few months. A Senate-
House conference is now considering the two bills.
SUMMARY OF LEGISLATION
The table below outlines the major aspects of the proposed congressional
legislation discussed in this section.
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Congressional Land Use Proposals
Non-Federal Lands
S 632
HR 7211
Purpose
Provides federal grants-in-aid
Provides assistance to states for
to assist states develop land
land use programs and establishes
use programs.
public land policy (see below).
Adminis-
Places control within Depart-
Places control within Department
tration
ment of Interior under new
of Interior under new office of
office of land use policy ad-
land use policy administration.
ministration.
Planning
Requires states to develop land
Requires state to develop land use
Process
use programs, within five years
plans for areas of critical envir-
for areas of critical environ-
onmental concern, key facilities,
mental concern, key facilities,
developments of regional benefit,
developments of regional benefit
large-scale developments, new sub-
and large-scale developments.
divisions, new communities.
Sanc-
If state does not develop an ap-
If state does not develop accept-
tions
proved program within five years,
able program by July 1, 1976,
federal grants-in-aid (for air-
federal grants-in-aid (for airports,
port development, highways and
highways and land and water conser-
land and water conservation fund)
vation fund) are withheld at 7%,
are withheld at an increasing
14% and 21% over three years.
rate of 7%, 14% and 21% over
Funds revert to U.S. Treasury to be
three years. Funds held in es-
distributed to qualified states.
crow until state qualifies.
Grants
Authorizes $100 million annual-
Authorizes $204 million over five
ly for eight years, with fed-
years: $54 million the first year
eral share 90% for first five
with 90% federal share, $45 mil-
years and two-thirds for last
lion the second and third years
three years.
(75% federal share), $30 million
the last two years (50% federal
share).
Appeals
If a state is declared ineli-
No provisions for appeals.
gible for grants, the Presi-
dent must name an ad hoc hear-
ing board which must rule with-
in 90 days.
Inter-
Requires federal-state coordi-
Sets up national land use policy
Govern-
nation and cooperation in plan-
and planning board, national com-
mental
ning and management of federal
mittees and advisory councils to
Cooper-
and adjacent federal lands.
coordinate federal and non-federal
ation
land use planning.
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Federal Lands
S 2401
HR 7211
Cover-
Deals only with lands adminis-
Applies to all federal lands.
age
tered by the Bureau of Land
Management (BLM).
Classi-
Requires the Department of In-
Requires federal agencies to in-
fication
terior to inventory all BLM
ventory all public lands and clas-
lands with priority to areas
sify for uses of maximum public
of critical environmental con-
benefit.
cern and potential wilderness.
Disposal
Authorizes Department of Inter-
Authorizes disposal of any federal
ior to sell or dispose of BLM
lands meeting certain criteria.
lands after considering envir-
onmental management and public
objectives.
With-
Uses existing procedures for
Requires House and Senate Interior
drawal
executive withdrawals of fed-
Committees to review all executive
eral lands for national parks,
withdrawals over 25,000 acres.
monuments, forests, etc.
Coastal Zone Management
S 3507
HR 14146
Purpose
Provides financial assistance
Provides assistance to states for
to coastal states to develop
the management, protection and de-
a management program for the
velopment of the land and water re-
coastal zone.
sources of the nation's coastal
zone.
Adminis-
Places control of the program
Places control of the program under
tration
under the Secretary of In-
the Secretary of Interior.
terior.
Grants
Authorizes $12 million annu-
Authorizes $15 million annually to
ally for program development
1975 for program development grants
grants (federal share 2/3),
(federal share 2/3), and $50 mil-
and $50 million annually for
lion for 1974 and 1975 for adminis-
administrative grants (federal
trative grants (federal share 2/3).
share 2/3). Also authorizes
Also authorizes 50% grants for pur-
50% federal grants for pur-
chase of estuarine sanctuaries ($6
chase of estuarine sanctuaries
million annually).
($6 million annually).
Sanc-
Termination of grant.
Termination of grant.
tions
This proposed federal legislation indicates a strong trend toward state regu-
lation for land use decisions with regional impact. The purpose of the legis-
lation is to assist the states in developing a land use process which promotes
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economically and environmentally sound uses of the nation's resources.
The California Initiative differs from the basic trend indicated in these
bills in several respects. The Initiative seeks to control all types of de-
velopment. S 632 and HR 7211 focus on large-scale developments, key facil-
ities and areas of critical environmental concern. The Initiative aims at
a land use plan for the coastal area whereas S 632 and HR 7211 emphasize the
development of an effective land use planning process.
The proposed legislation requires that the federal assistance go to a state
agency established by the governor. This agency must coordinate its activi-
ties with other state, regional and local agencies. The Initiative sets up
a commission which is not appointed by the governor, and does not require
the commission to coordinate its activity with other governmental agencies.
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CURRENT PROGRAMS [STATES]
THE STATE ROLE
INTRODUCTION
THE STATE ROLE
INTRODUCTION
States have the constitutional authority to control the use of land within
their jurisdiction, but they have typically delegated this authority to the
local level. The state role, up until recently, has been limited to owner-
ship and management of lands, the location and development of major facilities
and tax incentives.
The impact of state land ownership is not limited to state lands. The loca-
tion of these lands and their use can influence and in some cases determine
the uses on surrounding properties. The location of government centers and
capital facilities guide growth patterns and are the result of state policy.
Finally, through the use of tax incentives, states can indirectly influence
the expansion of urban areas and can support preservation of agricultural
and open space lands.
However, the importance of these functions is limited in comparison to the
role played by the local government. The local government through zoning
and subdivision legislation has direct control over the location of land uses.
In recent years, a number of states have taken steps to recover some of their
power over land use control. The section is a detailed examination of this
type of land use legislation which states have enacted over the last ten years.
It is the focus of this discussion of the state role for several reasons.
First, the California Coastline Initiative is an example of this type of leg-
islation, and comparisons can be made between it and legislation already
enacted by other states. Second, several bills before Congress implicitly
require states to establish land use control legislation.
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The state laws passed during the last decade on land use fall into four cate-
gories:
(1) direct statewide control of land uses
(2) statewide criteria and standards for land use decisions by local
governments
(3) direct state control of land uses in selected areas
(4) state criteria and standards for local land use decisions in
selected areas
A summary of state legislative requirements and their relation to the Calif-
ornia Coastline Initiative is included at the end of the four sections.
DIRECT STATEWIDE CONTROL
Three states have enacted legislation which establish statewide land use con-
trols. The tool for carrying out these controls is a statewide comprehensive
planning process. When this type of process is used along with police powers
(such as zoning and subdivision laws), the state has an opportunity to influ-
ence economic and physical development.
Typically the state draws up its comprehensive plan. However, the adminis-
tration of the plan may be solely in the hands of the state, or as is usually
the case, it may be under a joint arrangement between the state and local
governments.
Three states utilize the statewide approach. The most important example is
the State of Hawaii.
HAWAII
ADMINISTRATION
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The Hawaii State Land Use Law of 1961 gave the state much greater control than
any other state had previously held over land use. The law set up a state
Land Use Commission and instructed the commission to divide the entire state
into four districts: conservation, agricultural, rural and urban. The land
in the urban district could be used for whatever purpose local zoning regula-
tions allowed. Land use in the agricultural and rural districts had to comply
with the regulations of the State Land Use Commission, while land use in the
conservation district had to meet the regulations of the state's Department
of Land and Natural Resources.
Several factors provided the impetus for the Hawaii land use legislation.
These were the economic importance of agriculture, the imminence of develop-
ment pressures and associated threats of urban sprawl and the tradition of a
strong, centralized government.
During the law's ten years of operation, three basic policies have guided
the administrators. (1) The commission should preserve prime agricultural
land for agricultural use. (2) It should encourage tourist-attracting de-
velopment without disturbing the attraction of the natural landscape. (3)
It should provide compact and efficient urban areas where people can live at
reasonable cost.
The state Land Use Commission membership is composed of seven private citizens
plus the director of the Department of Land and Natural Resources and the
director of the Department of Planning and Economic Development. The commis-
sion has carried out the instructions of the statute by dividing the state
into four districts: urban, rural, agricultural and conservation.
CONTROLS AND CRITERIA
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The urban districts include urban areas and enough land to accommodate urban
growth for ten years. Rural districts generally contain low-density residen-
tial development on lots of at least one-half acre. The agricultural dis-
tricts cover both crop and grazing land as well as agriculturally-oriented
industry. Two-thirds of the conservation districts are publicly-owned Forest
and Water Reserve Zones. The other third is private land primarily in moun-
tainous areas.
The commission controls urban growth by designating the boundaries for the
urban districts. Intensive development can only occur in these areas. In ef-
fect, both state and county approval are necessary for development in urban
areas. Uses permitted in the urban districts are under county zoning regu-
lations, and a county could zone a portion of an urban district for agricul-
tural uses.
The use of lands in the rural and agricultural districts is governed by Land
Use Commission regulations. The commission decides on requests for boundary
changes and special permits under a tight time schedule established by statute.
The appropriate county planning agency must review each petition and the com-
mission holds public hearings in the county where the land is located. Count-
ies may issue special use permits in these districts subject to final approval
by the commission.
The Department of Land and Natural Resources has sole regulation over use in
the conservation districts. Currently, the department divides the conserva-
tion area into two general subzones, a Restricted Watershed zone and a general
use zone. Uses allowable in the general use zone include residences, resorts,
hotels, golf courses, marinas, etc. The governing body of the department
passes on all applications for special use permits in the conservation zones.
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ASSESSMENT
The commission does not have guidelines from a master plan to aid its decis-
ion-making process. Hawaii adopted a state plan in 1960. However, the
rapid population growth and economic changes that have taken place since
then have made the 1960 plan obsolete. The state completed a revision of the
plan in 1967, but the planners specifically avoided setting land use policies.
The state planners indicated that the commission was responsible for land use
planning. However, while the commission has been directed to plan, it has not
been given any planning capability. The commission's planning activity is
largely limited to setting boundary lines for the rural and agricultural dis-
tricts.
The commission's staff is quite small and the staff size limits the enforce-
ment capability. The commission does not attempt to follow up on permits to
see that conditions and restrictions are obeyed, and it does not check on de-
velopment undertaken without a permit. The statute directs the counties to car-
ry out enforcement, but it is difficult to determine the degree of enforce-
ment.
Violations of the law are punishable by a fine of not more than $1,000. Each
day of the violation is considered a separate offense.
The tax policies and land use policies of the state often appear to conflict
with each other. Hawaii has two tax laws which affect land use policies.
Land is taxed at a higher rate than buildings, to encourage improvement of
urban land. This approach is consistent with the narrow urban limits policy
of the Land Use Commission but it may have contributed to excessive congestion.
The tax laws allow a land owner to obtain lower assessments by dedicating his
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property to agricultural use. To obtain this classification an owner must
submit a request to the Department of Taxation. The determination of the
request is based "upon the productivity ratings of the land in these uses for
which it is best suited, a study of the ownership, size of operating unit
and present use of surrounding similar lands and other criteria as may be ap-
propriate."
Land in proximity to existing urban areas is the only land likely to be dedi-
cated. Dedication of this type of land may limit the commission's ability
to control orderly urban expansion. "Unless land is dedicated the statutory
direction that the assessors give consideration to the land use classifica-
tions set by the Land Use Commission has apparently had little effect. In
addition, the tax laws have been criticized for permitting the dedication of
land for agricultural purposes in districts zoned urban by the Land Use Com-
mission, thus defeating the purpose of the Land Use Law. "*
Tourism and urbanization have had an important impact on implementation of
the law. The law has been administered to strongly encourage the develop-
ment of tourist facilities in many natural or agricultural areas of the state.
The state has attempted to guide this development to preserve the natural en-
vironment.
The commission has tried to limit other types of new development to areas
next to urban zones. This policy has prevented urban sprawl. However, it
has also produced a rapid increase in housing costs. This policy has created
a shortage of land and forced development into areas where site improvement
costs are high. "The land shortage has furthermore resulted in an absence
of competition, thereby encouraging each segment of the housing industry to
increase its profit margin. The overall consequence is that housing costs
*Fred Bosselman and David Callies, The Quiet Revolution in Land Use Control,
Council on Environmental Qualitv. 1972, p. 32.
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in Hawaii are most than double the national average. **
Hawaii's present situation causes strong conflicts between development and
conservation. The Land Use Law provides a method for the state to resolve
these conflicts on the basis of a statewide policy. "The decision-making
process would probably be more effective, however, if more closely-tied to
a state planning process that provided the regulators with more current data
and better analysis of the relevant policy considerations. "**
VERMONT
ADMINISTRATION
In 1970, the Vermont legislature passed an act requiring statewide land use
planning to govern all essential aspects of growth. The Land Use and Develop-
ment Act, known as Act No. 250, is designed to promote environmental objec-
tives as well as social and economic aims. It sets up an Environmental Board
and nine district commissions to draft and enforce a plan. The plan is enforced
by use of permits, which are required for subdivisions of ten or more lots
and for commercial and industrial developments.
At the time the law was passed there was little local zoning in Vermont. De-
velopments over one acre require a permit if they are located in an area with
no local zoning. This feature of the legislation is an incentive to local
governments to define their land use objectives and set up zoning controls.
The law establishes a state/local partnership in which the state controls the
larger developments and those areas outside local government jurisdiction.
It encourages the local governments to control the smaller, in-town develop-
ments.
*Fred Bosselman and David Callies, The Quiet Revolution in Land Use Control -
Summary Report, Council on Environmental Quality, p. 6.
**Bosselman and Callies, op. cit., p. 7.
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The lack of local zoning in Vermont probably played an important role in
enactment of this legislation. Local governments were not regulating the
large-scale developments of vacation homes.
The legislature was already concerned about the overall physical growth with-
in the state when a proposed large-scale land development in southern Vermont
became the focus of public interest. In response to citizens' objections,
the Governor of Vermont appointed a study commission, known as the Governor's
Commission on Environmental Control. The Commission's report, put out in
January 1970, found that land development by large corporations had become a
major activity in the state and posed an immediate threat to the state's en-
vironment. Act No. 250, passed later that year, in part adopted the recommen-
dations of the Commission.
An Environmental Board and nine district commissions administer the Act. The
Board is made up of nine members, all appointed by the governor. The Chair-
man of the Board serves two years and the other members serve four years.
The Act does not require that members represent any particular social or
economic group.
The nine District Environmental Commissions are sub-agencies of the Environ-
mental Board. The jurisdictions of the district commissions follow county
boundaries. Each commission has three members and these are also appointed
by the governor.
The Environmental Board sets policy and serves in a quasi-judicial manner to
review the decisions of the district commissions. The district commissions
carry out the day-to-day responsibilities.
The Environmental Board may appoint a full-time executive officer and other
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professional and administrative staff that it needs and can afford. The
total amount spent annually on the land use program is $100,000.
The legislation directs the Environmental Board to prepare three plans. The
Interim Plan simply describes the present land uses and natural resources.
The Capability and Development Plan is to be a guide to the coordinated, ef-
ficient and economic development of the state including distribution of pop-
ulation and uses of the land. Finally, the Land Use Plan will be a map indi-
cating the results of the Capability and Development Plan.
CONTROLS AND CRITERIA
A permit system for commercial and industrial developments as well as sub-
divisions is designed to ensure implementation of the land use plans. The
Act states that business, individuals and government agencies must get a per-
mit for:
(1) The construction or improvement on a tract or tracts of land owned or
controlled by a person, involving more than 10 acres of land within a radius
of five miles of any point on any involved land, for commercial or industrial
purposes,
(2) The construction of improvements for commercial or industrial purposes
on more than one acre of land within a municipality which has not adopted
permanent zoning and subdivision bylaws,
(3) Any housing or multi-family dwellings, condominiums or trailer parks which
involve ten or more units and are owned or controlled by a person within a
radius of five miles of any point on any involved land, or
(4) Construction or improvements on a tract of land involving more than ten
acres of land which is to be used for municipal or state purposes.
(5) Construction or improvements for commercial, industrial or residential use
above the elevation of 2,500 feet.
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Permit applications are filed with one of the nine district commissions.
The state Agency of Environmental Conservation and the County Foresters re-
view all permit applications. The Agency of Environmental Conservation form-
ulates its policy on each application and files a statement of its views with
the appropriate district commission.
A hearing is held after the Agency of Environmental Conservation gives the
district commission its pre-hearing position paper. The commission must hold
a hearing if anyone required to receive notice requests a hearing. Also an
adjoining landowner may request a hearing.
The law requires the permit applicant to give notice of his filing to any
municipality where the land is located, any municipal or regional planning
commission affected, any adjacent Vermont municipality, municipal or region-
al planning commission of the land is located upon a boundary. The applicant
must also publish a notice in the local newspaper.
The commission may choose to order a hearing on its own. If no one requests
a hearing and the commission does not order one, the commission must act on
the application within 60 days after the application is filed, or the appli-
cation is automatically approved.
An applicant may appeal the commission's decision to the Environmental Board.
The state appellate court would review any appeal from the Board's decision.
The legislation states that before issuing a permit the district commission
or board must find that the subdivision or development:
(1) Will not result in undue water or air pollution. In making this deter-
mination it shall at least consider: the elevation of land above sea level;
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and in relation to the flood plains, the nature of soils and sub-soils and
their ability to adequately support waste disposal; the slope of the land
and the effects of effluents; the availability of streams for disposal of
effluents; and the applicable health and water resources department regula-
tions.
(2) Does have sufficient water available for the reasonably foreseeable
needs of subdivision or development.
(3) Will not cause an unreasonable burden on an existing water supply, if
one is to be utilized.
(4) Will not cause unreasonable soil erosion or reduction in the capacity
of the land to hold water so that a dangerous or unhealthy condition may re-
sult.
(5) Will not cause unreasonable highway congestion or unsafe conditions with
respect to use of the highways existing or proposed.
(6) Will not cause an unreasonable burden on the ability of a municipality
to provide educational services.
(7) Will not place an unreasonable burden on the ability of local govern-
ments to provide municipal or governmental services.
(8) Will not have an undue adverse effect on the scenic or natural beauty
of the area, aesthetics, historic sites or rare and irreplaceable natural
areas.
(9) Is in conformance with a duly adopted development plan, land use
plan or land capability plan.
An application cannot be denied solely for criterion (5), (6) and (7). How-
ever, the law clearly gives the Board and commissions wide discretion in at-
taching conditions to the permit.
Either public or private landowners may petition for variances from adopted
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land use plans. Applicants request variances from the appropriate commission,
which will hold a hearing if someone requests it.
"No variance from the final Land Use Plan may be granted unless the Peti-
tioner shows that:
(1) the land is needed for a different use;
(2) the land is useable for the proposed use; and
(3) conditions and trends of development have so changed since the adoption
of the existing classification as to warrant reconsideration." The Envir-
onmental Board will set out more detailed regulations on the basis of these
criteria.
The commissions act on the petitions for variances on the basis of the
Board's regulations. The applicant can appeal a denial to the Board and can
subsequently appeal to Vermont's highest appellate court.
ASSESSMENT
There are several problem areas in the law and its implementation includ-
ing exemptions from the law, the interaction of planning and regulation and
policy implementation. The law does not cover pre-existing development
plans and this factor means that unregulated development will continue in
some areas of Vermont. The large acreage requirements do not take into ac-
count the potential damage from strip development. Other types of exemp-
tions do not bear any relation to the potential for damage. Even primitive
recreational development requires a permit, but farming and forestry do not.**
*Elizabeth Haskell, et. al., Managing the Environment, Woodrow Wilson Cen-
ter for Scholars, 1971, p. 304.
**Fred Bosselman and David Callies, The Quiet Revolution in Land Use Control,
Council on Environmental Quality, 1971, p. 80.
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The creation of new planning agencies has been one of the successes of the
law, but the law does not specify which plans have priority. The Environ-
mental Board's policy positions do not become a part of the state plans.
The district commissions can comment on the plans, but they do not play any
role in their preparation.
Most of the planners view the plans as flexible instruments which must adopt
to changing needs. However, many involved in the review process see the
state and regional plans as zoning maps. Commission members and developers
apparently will use the land use map just as a zoning map would be used. "The
difference between planning in its traditional sense and planning having the
augmented status provided by the Environmental Control Law accounts for con-
siderable friction in the permit review process and for the deliberate pace
at which the organization of the statewide planning process is proceeding. "*
The sophistication of local parties to a hearing affects the nature of the
adversary proceedings. One result of the law may be greater use of zoning
controls and urban planning at the local level since the law doesn't apply to
developments under acres in zoned towns and town planning is a requirement
for permit issuance.
"The Environmental Control Law has been part of a massive holding action by
the State of Vermont, opposing unplanned random development until the state's
policies and priorities could be revised to deal with the pressures. The
effort began with expanded local powers, and when pressure continued to
build without substantial local response, the Environmental Control Law and
various administrative rulings... resulted. "**
*Ibid., p. 82.
**Ibid., p. 89.
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Since the law's inception, the commissions have been evaluating develop-
ment according to standards suggested by state agencies on a case-by-case
basis. They have applied broader policies on the local and regional level
and in some cases have enforced statewide policies. However, longer range
plans must give the overall direction.
"Despite its problems, the administration of the Law seems to be progress-
ing well. The critical process, however, is the preparation of state plans
that can provide both flexible guides for developers and standards for the
regulators. The presentation of these plans in 1973 will provide the real
test of Vermont's land regulatory system.
MAINE
ADMINISTRATION
Maine has also established a set of statewide land use controls. In 1970,
a statute gave the states' Environmental Improvement Commission extensive
power to regulate land developments. Any development of 20 acres or more
come under the jurisdiction of the Commission.
Maine, like Vermont, has not had extensive local zoning and developers did
not face restrictions in the way they used land. Recently, there has been
a large increase in the number of developments, and second-home industry
threatened to alter some of Maine's scenic areas. In addition, several com-
panies proposed heavy industries near some of Maine's most valued natural
sights. These two factors created the impetus for the legislation.
The Governor appoints ten members to the Environmental Improvement Commis-
sion for a period of three years. The membership must be made up of two rep-
resentatives of manufacturing interests, two from municipalities, two
*Ibid.
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representing conservation interests, two representing the "public," and two
must be knowledgeable about air pollution.
The law authorizes an administrative staff and a director. It also encour-
ages the Commission to utilize the skills and knowledge of other state agen-
cies. Total appropriations for the Commission in FY 1971 were just over $1
million. These appropriations included $85,000 specifically for land use
control.
The Commission's responsibilities other than land use control are:
(1) Recommendation of new water quality standards to each legislature;
(2) Supervision of the waste treatment plant construction program and pro-
vision of technical assistance on waste control to industries and towns;
(3) Promulgating ambient air and emission standards for the legislature to
act on;
(4) Enforcement of all regulations under its jurisdiction;
(5) Establishment and maintenance of standards for the operation of muni-
cipal waste treatment plants;
(6) Approval of plans for proposed municipal drainage systems;
(7) Rule on applications for variances from air and water quality standards;
(8) Register sources of air contamination; and
(9) Undertake research in waste disposal.
CONTROLS AND CRITERIA
In land use control, the law instructs the Commission to control the location
of large developments SO that "such developments will be located in a manner
which will have a minimal adverse impact on the natural environment of their
surroundings." The statute justifies state level control by stating that
"many developments because of their size and nature are capable of causing
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irreparable damage to the people and the environment in their surroundings
and that the location of such developments is too important to be left
only to the determination of the owners of such developments."
The method for achieving control over proposed developments is the permit sys-
tem. The Commission requires a permit from the following types of develop-
ment:
(1) A commercial or industrial development occupying 20 acres or more; and
(2) A development which includes drilling or excavating of natural resources.
The Act excludes logging which is Maine's major industry. However, it clear-
ly includes industrial facilities such as factories, major commerce such as
shopping centers and large housing developments. The Act is not clear wheth-
er a development by a public agency requires a permit.
A developer with plans coming within the statutory jurisdiction must file a
permit application with the Commission. Within 14 days, the Commission must
either call for a hearing or approve the application. The Commission's dis-
cretion is limited to four factors:
(1) "The financial ability of the developer to fully complete the project,
including facets such as solid and liquid waste disposal and water supply;
(2) "The ability of the project as planned to avoid the hindrance of traf-
fic movement and provide adequate parking and loading areas;
(3) "The proposed development has made adequate provision for fitting it-
self harmoniously into the existing natural environment and will not adver-
sely affect existing uses, scenic character, natural resources or property
values in the municipality or in adjoining municipalities; and
(4) "That the development will be consistent with the type of soil involved. "*
*Elizabeth Haskell, Managing the Environment, p. 326.
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An applicant can appeal the Commission's decision to the Supreme Judicial
Court within 30 days. The law does not deal with the question of appeal from
orders placing conditions without a hearing.
The statute appears to permanently preclude any heavy industry or deep and
surface mining from previously undeveloped areas. Mining and heavy industry
cannot locate in an area without adversely affecting "existing uses, scenic
character or property value in adjoining municipalities. II Documented
legislative history does not clarify the meaning of this language. The leg-
islature may have intended to limit heavy industry and mining to areas already
contaminated by such activity. The statute defines natural environment to
include: "the character, quality and uses of land, air, and waters in the
area likely to be affected by such development, and the degree to which such
land, air and waters are free from non-naturally occurring contamination."
However, "if the legislature did intend to limit future heavy industry or min-
ing to their present locations, and preserve those areas where the environ-
ment is now 'free from non-naturally occurring contamination,' then the stat-
ute does not make this clear. 11*
ASSESSMENT
The Commission has assigned only one staff member and an assistant to proces-
sing the permit applications. Because of the limited budget, the Commission
does not have staff to investigate information in permits nor to follow up
on enforcement of conditions in permits it issues. However, the staffs of
other state agencies assist the Commission during the permit review process.
The law has created much public interest; and, because of this, the Commis-
sion generally learns of new development activity. The Commission is appar-
ently limiting its focus to particular areas and types of development. It
*Ibid., p. 326.
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processed only 136 applications in its first 15 months. The small number in-
dicates the Commission's selectivity. "Thus, for example, waste-discharge
licenses for emissions into existing sewer systems have been required only
where the effluent increased the load 'significantly,' i.e., by 25 per cent
or more. In general the Commission is exercising its jurisdiction within
urban areas only to a limited degree.
The primary control problem is the lack of a check procedure once the Commis-
sion issues permits. The failure to verify that conditions attached to per-
mits have been met has made it difficult for prospective real estate buyers.
They cannot determine if the property has been developed according to the
law.
There have been only a few proposals for heavy industry. The State's Depart-
ment of Economic Development encourages light industry rather than heavy in-
dustry to come to Maine. Consequently, the Commission's real workload has
been the processing of permits for residential subdivisions. As of August 5,
1971, 83 per cent of the applications processed by the Commission have been
for the construction of housing, about half of these for seasonal housing. "**
The Commission's decisions on permits may be aggravating the state's housing
shortage. Mobile home sales are leading permanent home sales three to one.
Some friction has developed between the Commission and local reviewing agen-
cies when the locality thought it was more capable of evaluating an applica-
tion. Normally, however, the state and local agencies have not come into
conflict. "The existing harmony between state and local government undoubtedly
stems from the fact that much of Maine is wholly without land use controls.
*Fred Bosselman and David Callies, op. cit., p. 196.
**Fred Bosselman and David Callies, op. cit., p. 198.
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Only one-third of Maine's townships are 'organized' into municipal corpora-
tions, and of these, only 15 per cent are zoned. "*
Finally, there is no overall state plan. "The major question for the future
is whether the state can expand the Site Location Law into a more comprehen-
sive land regulatory system that leaves the local issues to local governments
but deals with major development proposals in the framework of a broader con-
ception of state planning than the current Law contains. "**
STATEWIDE CRITERIA AND STANDARDS
Several states have enacted legislation which guide the land use decisions
of local agencies. In effect, the state sets up the criteria on which local
agencies base their decisions or the state draws up land use controls for
those areas of the state which are not regulated. Three states that have
taken this approach are Colorado, Oregon and Washington.
COLORADO
ADMINISTRATION
The state legislature passed three bills in 1971 collectively called the Col-
orado Land Use Act. The bill passed because there was considerable concern
over new construction of recreational and second-home development.
The legislation did several things to increase the effectiveness of planning
in Colorado. The Land Use Commission was created in 1970. This Act increased
the Commission's membership from seven to nine, and it established an advis-
ory committee made up of representatives from commerce, industry, agriculture,
conservation and natural resources together with four members of the General
*Ibid., p. 198.
**Ibid., p. 199.
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