role of the states in guiding land use decisions

[From the U.S. Government Printing Office, www.gpo.gov]

Coastai Zone
information
Center

THE ROLE OF' THE STATES
IN GUIDING
LAND USE DECISIONS

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1974
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ED BY ESTHER LACOGNATA
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*PTEMBER 1974 FOR THE
L------- MAINE LAND USE REGULATION COMMISSION
DEPARTMENT OF CONSERVATION

COASTAL K,@'@IE
ACKNOWLEDGMENTS INF-ORMATION CENTER

The author (neither a planner@ lawyerp or journalist and.not
even a typist) is much indebted to the valuable contribution of
skill and expertise of the following people. Without their help
and encouragement this report would not have been possible:

James S. Haskell, Jr., Executive Director of LURC for
the duration of the project, for his supervision
from beginning to end, and expecially for help
with the monumental task of organizing the infor-
mation;
Stephen Bither, of LURC staff, for his "englishing" the
entire document and help with the painful nitty-
gritty of footnotes and bibliography;
Chris Larsen, of LURC staff, for good naturedly trans-
lating some terrible graphics to their present form;
The staff of the Law Library at University of Maine in
Portland for guiding me to the world of statutes
and law reviews; I
Linda Todd and Pat Merrick for typing and re-typing the
manuscript;
Fortin Powell, Alec Giffen, Ellen George and Sarah Redfield
.for review and most helpful comment on the document;
.Nancy Masterton for being a patient sounding board through-
out the project.

Property of Coe "WUT

DEPARTMENT 0F COMMERCE NOAA
COA87AL SERVICES CENTER
2234 SOUTH
HOBSON AVENUE
CHARLESTON SC 29405-2413

The preparation of this report was financially assisted by
the State of Maine, Department of Conservation, Land Use
_J Regulation Commission; appropriation account number 1249.1,.
Contract Number 904246.

!ELI

IYI

A B S T R A C T

The term "Land Use Guidance" refers to all the decisions, processe so.
laws and regulations which determine how land is to be used. It
includes the processes of planning, regulations and management of
land and land-uses.
When considering any new programs or legislation, consideration'
must be given to the legal, constitutional, and traditional values
of the society. This will allow for an effective, credible and
enforceable system. Traditionally and constitutionally, states
have delegated to local levels of-.government the police powers of
land use controls. There is, however, a general recognition that
local ordinances are*o-ften ineffective and are not sufficient to
deal with land use decisions with greater than local impact, and
that, therefore, a major overhaul of our.land use systems is long
overdue. 'Basically, the objectives of land use planning and control
are to resolve or prevent conflicts between and among public and.
,private interests while assuring an orderly and effective system of
development-and protection.
The designing of any system to,guide land use must include the
formulation of objectives, goals, and policies to carry them out.
Policies are developed early in the planning process to serve as
a framework for all the decisions that follow. Several states
have completed statewide plans which are focused around key policies,
notably Connecticut and Vermont. Experience has shown that if the
difficult decisions are made at,the policy-making level,.it becomes
easier to apply them to the formulation of standards and criteria,
and ultimately to the decision@on granting a permit on spe cific
proposa ls.,

Land use planning, or more specifically, comprehensive land use
planning, is-a necessary prerequisite for any land use ordinance.
A comprehensive land use plan is a compilation of goals, policy
statements, resource inventories, and projections-of'the ' conse-
quences of various alternative uses in a region,.together with
recommendations, codes, and ordinances. Its major purpose is to@
provide a complete picture of an area, to order priorities for use,
and to aid decision-makers. In.order to increase effectiveness,
the formulation of the comprehensive plan should be,approved by
agents other than the staff, such as the legislature, a regional
planning commission, the Governor, another state agency,. or an
agency independent of state government. Since changes occur in
uses or attitudes, the review process should be undertaken period-
ically, at least every five years.

There are three categories of implementation for any land use plan:
police power regulations, degrees of direct acquisition, and taxation
policies. Under the police power categorycomes the important concept
of zoning, or the regulation of property use by dividing a geograph-
ical area into districts and by specifying what uses of land are
permitted or prohibited in each district. Zoning ordinances, the
legal means of specifying how the comprehensive plan should be imple-
mented, spell out steps to be taken before any improvement is made,

and the means of administering these regulations. A zoning map,
which indicates district boundaries and permitted uses,is adopted
as alegal part of the zoning regulations.

One special aspect of the zonin g regula tions is performance standards,
which indicate permitted uses in a zone and specific requirements
of that usage, and which enable the permit-granting agency to have
an objective means of judging an application.

Since there is a period of time'between the recognition of the need
to regulate and control and the completion of a comprehensive Plan,
there are often "interim" regulations-, Interim district boundary
lines and use standards ar6 important because there are problems
of immediate urgent concern and because the adoption of interim
regulations would prevent undue rapid development in an attempt to
subvert the purposes of the comprehensive plan.

A second method for the effective implementation of land use policfes
is direct ownership by the state. There are several degrees of
ownership whereby the state can acquire direct control of certain
land areas: easements, which provide or deny certain uses on a piece
of land; a purchase and lease back agreement or a purchase and resale
agreement, under which the state, acting as a landlord, can set
conditions or restrictions for,the future use of the land; a land
bank concept, whereby the state, as trustee of the land, can plan.
for its use in the public interest on a permanent basis; and eminent
domain, the power of any level of government to secure a tract of
land for a public purpose. The use of land,by government itself
-for such purposes as military bases, post offices, parks,.and highways
should be no less regulated than private developments.

Some aspects of taxation may also be used to further the goals of
land use guidance. Property taxes, which may produce all municipal
revenues, are a factor in the use of land and in governmental attitudes.
The rate and the governmental level of taxation are controllable
factors, which can be arranged to facilitate the best use of the land.
Current use taxation, for example, allows a lower rate of taxation
on unused land; and a capital gains tax is levied against profits
gained from buying and selling land within a short period of time.

For zoning ordinances to be effective, there must be a system of
enforcement. The first essential step in an enforcement system
is a method of informing*the public of the existence of the law.
An application from a potential developer must then be reviewed by
an agency, Commission, or Board with permit-granting functions.
When the agency is satisfied that the activity is in compliance with
the terms and conditions of the permit, at the time of completion it
may grant a certificate of compliance.

A method of inspection in the field is important to assure that th e
,law is being obeyed and that the law is visibly enforced as a
deterrent. Penalty provisions, in the form of fines, injunctions,
or other actions, are also an effective deterrent if actively pur-
sued in the initial stage of the program.

The final component of any land use guidance system is a process
for appeal or for adjudicatory review. There are several different
types of appeal procedures, ranging from the court system to a local,
district, or state agencyI empowered to review permit decisions.

JTJRISDICTION

The jurisdiction of land use control is currently expanding from
municipal boundaries to larger geographic areas, and to activities
which, by impact, affect larger areas than municipalities or town-
ships. The physical resources, and the population dependent upon
them, are not contained in tightly defined political municipal
boundaries. Whole geographic areas, such as shorelands, wetlands,
mountain tops, and forest and agricultural lands, are all critically
linked to the ecological environment; yet they very rarely coincide
with the geodesic survey grids which establish city or township
areas. Large scale developments, such as highways, airports, large
recreational facilities, utilities, and industry, also have a greater
than local impact and require at least a regional form of review
and control.

There. are a variety of types of jurisdiction above the municipal
level, each determined by such factors as the region's social frame-
work, the uniqueness of geographical features, the economic dependence
on a resource, past experience, and the general level of concern.
The five basic types of jurisdiction under current land use guidance
are as follows: (1) Critical environmental areas, any portion of
land which is valuable because of natural characteristics (rather
than the type of development proposed); the determination of critical
areas depends on the goals and policies of the state. (2) A second
type of jurisdiction covers activities and developments of regional
significance, including developments by a govermmental'agency other
than the local government,,development for charitable purposes, and
developments by a public utility to provide services for a large
area. (3) "Developments of state-wide significance" covers activities
as well as the geographic area of the whole state. Such a development
could have major benefit or harm to the state'or to a large region
The implementation of controls'over large scale development" with
statewide significance is important because of the increasin ressures
for and the irreversible consequences of such development. @4@ The
state may assume control over areas with no local planning and.zoning
powers, but with.a great potential for private development, (5) A
statewide comprehensive land 'Use system would combine some of the
above categories; it could be run at a state or regional level of
control.

ISSUES TO CONSIDER IN DESIGNING THE SY STEM

There are several problems encountered when designing a system of
land use planning and control. There must be a balance between
values of efficiency, local control, participatory democracy, and the
checks and balances of power. The state,its citizens, legislators,
and Governor will have to make decisions on the following issues:
(1) Separation of major components: There are several questions

about the location of functions, both vertically, along levels of
government, and horizontallyjamong agencies of the state government.
Most reports believe that the local government should be given
decision-making powers and the state a power of review. Local
government is most responsive to local needs; however, there is a
tendency at the local level to render local zoning ordinances in-
effective, either by pressure from special interests or by a lack
of necessary resources for the effective administration of the
zoning ordinance.

Other levels of government which could have some functions are
intermediate or county-levels, regional and metropolitan agencies
(districts which may overlap or criss-cross,the present jurisdictions
of local, county or state governments), and the state level of govern-
ment. Although in the past fifty years the powers to regulate land
use have been vested in local governments, it now appears that the
states are assLu@ing this responsibility. There are several reasons
for this. One may be,that some land uses have a greater than local
or regional interest.and the state-level control has become necessary
to preserve unique resources. A state-controlled set of regulations
tends to transcend local politics and local'pressures. Arguments
against state-level control include an adherence to the principles
of "home rule" and the difficulty of administration from a central
location at t1le state capital.

The Federal leVel of government has a limited role in guiding the
use of land. Although there are resources which cross state boundary
lines, such as air, rivers, and mountains, there,is also a belief
in the "New Federalism" approach, in which local and state govern-
ments have greater control in setting policies and initiating new
programs. Even a major federal proposal, the National Land Use
Policy Act (not passed by the 93rd Congress) encouriages interstate
and regional cooperation but places a primary responsibility on the
,states.

One of the most important aspects of designing a system for land use
planning and control-is citizen participation. Effective and respon-
sive decisions depend on the wishes and values of the people. There,
are a number of techniques currently being developed and utilized
in many states, including citizen task forces, which represent
various interests or groups, and which devise the plan or legislation
to be submitted; boards or Commissions,,which serve'as decision-
makers on land use or other issues, and which may be comprised of
citizens knowledgeable in various fields or from the.geographical
regions of the state; citizen advisory groups, larger committees
which carry public opinion from the general public to the Commission;
and public hearings, probably the most universally used procedure,
which involves several processes for informing the public prior to
the hearing.

One of the first prerequisites for an effective public hearing is a
notification system. This should be followed by making the document
available for discussion and deba.te in the press and in group dis-
cussions in order to make citizens well-informed before they go to
the hearings. Public hearings should then be held at the different

iv.

stages of development of the comprehensive plan and of the zones
or districts.

Many states are engaged in conducting public opinion surveys, espec-
ially at the goal-setting stage. Some states are also working on
such methods of public eduation as workshops, slide presentations,
and newspaper inserts in an attempt to reach and inform as'many
people as possible. Vermont has used a combination of all the above
techniques in the development and adoption of its comprehensive plan,
and has had positive.results.

Part of,designing any governmental program is the decision on who
or what agency will be assigned to' administer the's'ystem. What is
emerging in practice is that the Governor will appoint a Board or
Commission, rather than one person, fordecision-making and adminis-
tration of land'use programs. Boards may be comprised of agency heads
and appointed citizens, or entirely of citizens, who represent, or
have expertise in, industry, municipalities, or conservation interests,
or who represent geographic regions.or political parties. One main
problem in appointing citizens who "represent!' certain interests is
that there is a great opportunity for conflict of interest. There
are some laws that deal with this problem, but they are generally
weak.

If the state government assumes the respo nsibility for land use
management, it must decide.how to,divide the functions within itself.
One alternative is to assign some or all aspects of the function
to present agencies; another is to create a new agency or commission;
a third possibility is the creation of a new agency or commission
subsumed under a present agency or department. Many states are
now trying to bring their bureaucracy under control by reorganizing
and combining their departments. By doing this, they are attempting
to avoid further proliferation of new agencies. Many new agencies
placed under the Office of Governor also cause inefficient.overprolif-
eration, with conflicting policies and responsibilities. A possible
disadvantage of reorganization is that agency heads will have more
power than before and may become "czars" or "empire builders;" This
@is outweighed, however, by the clear lines of responsibility and .
accountability which result. If government agencies are responsive,
to the people's needs,. and if they coordinate their efforts, a more
effective and efficient system can result. Of course, efficiency
in government.is a strong selling point for governmental reorganization;
but there is a system of human.values, goals, and policies that also
must be considered.

Broad functional areas, rather than specific programs, should be
recognized as the-basic framework forcontemporary executive organi-
zation. Land use, as a unique function, can not easily be placed
into existing agencies in most state governments. When deciding
the best location for these func'tions, some of the following issues
mustbe considered: (1.) What are-the functional criteria of land
use management: pollution control, protection, conservation,
development, or all of them? If all functions are under a broad-
based agency, the problem may be solved. (2) Should the components
be placed together or split into different agencies? There have

been a variety of methods for this. (3) Should the agency be
located within existing bureaucracy, or should it be independent
or located in the Governor's office? Considering the unwise practice
of proliferation, the independent approach is often rejected. Some
boards begin independent but are later subsumed or incorporated
under a larger*umbrella agency. Sometimes functions are assigned
in a diffused fashion to different agencies.and coordinated by a
Commission. Where the state h '.as only planning functions in its
land use program, this function could be assigned to.the State
Planning Office. States with more functions assign some or all
responsibilities to the'Department of Environmental Protection or of
Natural Resources., As of now, however, there has been no proven
best way of accomplishing the allocation of functions; thus the'
process of evaluation must continue:

RELATED FEDERAL PROGRAMS

The Fedbral Government, itself a direct owner and user of millions
of acres of land, has had and will continue to have a role in guiding
the use. of land, especially in those areas of critical concern which
extend beyond municipal boundaries and have a larger than local impact.

The most important Federal land use legislation is a National Land
Use Policy and Planning Assistance Act, first proposed in 1971.,
Although this act met defeat in this session of Congress, it is signif-
icant because it represents the culmination of at least 30 years of
piecemeal legislation. More importantly, it would establish a frame-
work for a comprehensive system, designed and administered by the
state with Federal assistance.

A review of 30 years of Federal'legislation, policy statements, and
other efforts related to land use guidance prior to the introduction
of the National Land Use Policy Act shows a piecemeal approach.
Legislation-covering highways, airports, wildlife andforestry pro-
tection,'shoreline and floodplain programs, agriculture, housing,
recreation, and critical areas -covered the inventory, planning, or
policy stages,of the specific programs. The more recent bills recog-
nized a need for a more general approach, covering such areas as
intergovernmental policy, co-inprehensive environmental policy, urban
growth and new coamunity development, air and water quality standards,
and coastal zone management. In these acts, the Federal government
attempted to respond to land use problems by setting policy as a
preventive and corrective measure and by using money to assist lower
levels of government in the,implemeritation of Federal policies.
There is still missing a-comprehensive and coordinated'system, for
every level of, government, that guides and interrelate s activities
on both public and private lands.

The first national land use policy was presented to the 91st Congress
in 1970 by Senator Henry Jackson of Washington; but the Act was not
seriously-debated. In the 92nd Congress, the Senate passed a Land
Use Bill; but the House di-d not consider the bill. In the 93rd
Congress a compromise bill was again passed by the Senate. In the
House, a somewhat different bill m*et defeat in a June 1974, procedural
move. The closeness of the vote, however, and the increased awareness
of the problems created by haphazard land use assure its reintroduction
in the next session of Congress.

vi.

The need for land use regulations is recognized not only as a re-
sponse to the "environmental movement," but also as essential to the
economic well-being of the nation. This legislation attempted to
relate urban and rural land use; to offer financial and technical
assistance to the states (and to self-administered land use programs
in Indian Tribal Lands); and ultimately to.work toward a National
Land Use Policy.

In the spirit of New Federalism, the Act would leave up to the State
and local governments most of the planning and other substantive
portions of the program, while providing funds for its implementation.
There was a provision for sanctions,.in the form of grant termination,
if the Federal review process sho wed that important requirements of
the program were not fulfilled. Despite new Federalism, however,
there was considei@ation of a unified National Land Use, Policy to.
protect national interests and to prevent inefficienci .es which could
result from fifty different sets of state policies. Arguments
against inclusion of such a policy included their inability to adopt
to diverse land resources, the current.existence of several Federal
laws, and the complexity of forming a consensus on policy. Some
other aspects of the bill included provisions for an assistance pro-
gram to allow Indians to plan and manage their land-; a means for
resolving conflicts between uses on Federal and adjacent non-Federal
lands, while spelling out policies and planning requirements for
public lands; consideration of the program's effect on government
property tax; and a designation of flour types of critical areas--
fragile or Historic Lands, Natural-Hazard Lands, Renewable Resource
Lands, and other lands determined significant by the State. There
was a complicated system for the'allocation of administrative functions,
with the Department of Interior designated as a lead agency, an inter-
agency board for.review of State proposals, and a third agency to
establish guidelines and submit them to the Interior Secretary. To
provide for,these program's, the bill authorized.1.00 million dollars
a year.

As mentioned earlier there were different versions of the bill sub-
mitted in the House and the Senate. The above list of provisions
of the National Land Use Policy does not reflect differences between
the two bills. If a similar bill does receive passage it will be
a major and innovative breakthrough. It is generally intended to
aid state and local governments, without exerting or increasing
power over them, in the designation of land use programs; it-also
seeks to remedy the piecemeal approach to land use regulation which
has.evolved through the years at the Federal, State, regional, and
local levels. Because this act would offer the necessary funds,
quality guidelines, and-the coordination-between State and Federal
policies, its passage is essential.

Other bills of importance which were considered in the 93rd Congress
were the Surface Mining Reclamation Act and the Housing and CommunitV
DevelopmenE_A"37.

EMERGING STATE SYSTEMS

There are emerging patterns in'the various systems being developed
by the States. Many states have recognized the need to exert some

vii.

guidance over development in certain critical geographic areas and
over the types of developments which-have a larger than local impact.
One important critical area, which hat been the subject of a great
deal.of legislation is coastlines. Many states also have control over
wetland areas, as well as laws regulating large scale developments.
Some of these laws, however, are not based on a comprehensive plan.

Another type of system is a regional commission, based on a special
resource or use of greater than local impact. Very few states have
a comprehensive system which assures that all si 'gnificant types of
development and. utilization of land anywhere in the state are guided
''by a state agency. Hawaii, Vermont, Florida, and Oregon have such
statewide systems in various stages of evolution and strength.

There are varying answers to allocation of functions questions. The
emerging consensus in the existing systems seems to be that local
planning agencies should continue and improve upon planning and
administering land use controls in their own jurisdiction. For
jurisdictions of statewide concerns, the state should*set a framework
of goals and policies; coordinate and review functions delegated to
local levels; set standard building and subdivision codes; and impose
an ordinance if the local level does not adopt its 0"Wm.

Along levels of state government, the existing programs have used a
variety of methods for the allocation of functions. One emerging
pattern is that Departments of Natural Resources are.serving as lead
agencies in land use guidance.

Since these patterns are still in an evolutionary stage, there is
still debate over state vs. local control,. There are also problems
beginning to surface involving red tape--bureaucratic mazes which are
i-nefficient for the state ard time-consuming for the applicant.
Remedies to the problem of red tape may be the streamlining of govern-
ment, and the resultant concentration of all land use functions.
Another problem is the need for an adjudicatory board or administrative
review board, instead of a direct appeal to the courts. Some systems
having local permit authority allow state-:level review, a process
which, if not Always effective because of the.make-up of the review
board, at least allows the applicant the belief that zoning laws
are administered fairly at the local level.

POTENTIAL FOR EFFECTIVENESS

The history of local land use legislation has been one of amendments
to and subversion of the orioinal intent of the zoning ordinance.
CD
Only if states can learn from the mistakes of local zoning, will
they be able to administer an effective program of land use guidance.
Hawaii's system has had some problems with maintaining protection
over agricultural lands; but there seem to be few examples of blatant
misuse. Vermont's system has some difficulty with enforcement,
because of,a lack of personnel; a "loophole" in the law; but many
Vermonters feel that the more brutal large-scale developers have left
the -state. Another problem faced by Vermont was the extra expense and
time required of the developer to complete the forms; but many feel
these obstacles would have to have been met erven without a statewide

viii.

system. The Florida system ran into problems,,:with administration:
local governments often had no ordinances and there was a small staff
with limited funds at the state level. There were also political
problems: political and social traditions ran counter to the precepts
of the law, with bitter opposition generated by local people and
supported by the big developers, agribusiness and speculative corp-
orations. Many in Florida blame the enactment of the law for high.
land prices and for a huge boom of development.before the law's
enactment (there were no interim provisions).

The state's concern with social aYid economic problems creates the
need for an assurance that the process of guiding land use will be
undertaken in a' comprehensive framework.. Balancing human needs with
environmental considerations and guiding land use away from some
areas toward others can result in the fulfillment of the vital
economic, social, and recreational needs of human beings. Thus
there is a need for effective comprehensive planning and for admin-
istrative procedures that will allow the effective implementation'.
of the program. This, of course, takes money, which could be pro-
vided if the National Land Use Policy Act passes. 'Administrative
organizations need well-funded,and trained agencies, free from
institutional or political bias, which can enable the system to
proceed, especially in coordination with the lo'callevel. Decision-
makers must also be free from conflicts of interest. Preestabli-shed
guidelines and zoning boundaries can assure the developer that his
proposal will be in relation to established goals and dictated con-
ditions. Amendment procedures should allow for some flexibility
but shou'ld not allow subversion of the intent of the plan. Enforce-
ment procedures must be set UP so there is no way for anyone in any
jurisdiction to think he can get away with something. Finally, there
must be some citizen vigilance of the law, and an assurance that
candidates and future office holders understand the law's intent
uphold it.
In summary, the State's new and complex endeavor of guiding the use
of land requires a coordination of all political decisions and a
commitment to follow.a comprehensive plan for a longer period of
time than the single term of elected officials. In the final analysis,
the effectiveness of any legislation boils down to the established
prerequisites of good government.,.

Stephen Bither

ix.

THE ROLE OF THE STATES IN GUIDING

LAND USE DECISIONS

PAGE

INTRODUCTION

SOCIAL FRAMEWORK ..................... 31

A. Constitutional Framework ................. ...... 3
B. Principles and Traditions ........ i.................

C. Recognition of Need for.Change .........................

D. Living with Contradictory Values ............ 0 .......... 5

E. Regulate'But Don't Limit Growth .......... ..... . 6

F. Goals as a Summation of Our Attitudes...'........ ...

DEFINITIONS AND COMPONENTS ....... 8

A. Policy Formulation ..... ................................. 8

B. Land Use Planning ............. ...... 11

1. Comprehensive Plan ................. ........ 12

2. The Land Use or Land Development Plan .... 13

3. Data Collection or Inventory .... ......... 00 ... 13

4. Review of Comprehensive.Plan .... 14

5. Planning as a Process ..... ;.................... .... 14

C.. Techniques of Land Use Guidance or Tools of Plan
Implementation ..................................... 15
.1. Zoning ....... e.......... ....... 15

2. Performance Standards ....................... 17

3. Interim Regulations ............ o, ................ 18

4. Degrees of Direct Ownership .............. ......... 19

a. Easements ....... ...... ... 19

b. Purchase and Lease.Back ..... .......... 20

c. Purchase and Resale ............................ 20

d. Land Bank ........... 20

e. Eminent Domain .............. 0 ... 0......... 0@ 20

PAGE

5. Taxation Policies .......................... 21
a. Property-Taxes .................................. 21

"b. The R,.,).tc o1' Taxation ....... 0 0.......... 21

C. Level of Taxa@,ion .............. ............... 21

d. Current Use Taxation ............. o ............. 22

e. Capitol Gains Tax .................... ......... 22

6. Supplements to Police Power ........................ 22

D. Methods of Assuring Compliance ..... 0 ....0........... 23-

1. Informing Potential Applicants ... ..... 23
2. Granting of Permits .................................. 24

3. Certificates of Compliance ................ 24

4. Inspection ................................ ... 24

5. Provisions for Penalty to Violators ................ 25

E. Procedures for Appeal .................... ............. 25

IV. JURISDICTION ........ o ...... oo ................ o..*.o ...... o. 27

A. Need for State Level Jurisdiction ...................... 27

B. Factors Determinin g Jurisdiction...... ....... 28

C. Types orf Jurisdictions That Have Emerged .... o o.o.... '28

1. Critical Areas .. .............. o.................. o. 29

2. Developments of Regional Impact .... o ......o .......... 31

3. Large Scale Developments of State-wide Significance.
Significance ...... o o..... oo..o .......... #*..o. 32

.the State Without Land Use Control ....... o 32
4. Areas of

5. Statewide ................... * ....................... 33

V. ISSUES TO CONSIDER IN DESIGNING THE SYSTEM .... o............ 34

A. Separation of Major Components ................ 0000000000 35

B. Location of Authority ............ 0 ........... 0..... 00.00. 37

1. Local Level ............. ..... 37

a. Advantages .......... o ol ............ 0 .... 0 ...... 37

PAGE

b. Disadvantages or Weaknesses on the Local
Level ........................................... 38

2. Intermediate Level ... ..... 38

a. County ......... 39

b. Regional and Metropolitan Agencies ............. 39

(1) Arguments For ............................. 40

(2) Arguments Against ..................... 40
3. State Level .... ........................
4. The Federal Level ............. ... 44

D. Citizen Participation ....... 44

1. Definition ........ 45

2.- Techniques of Citizen Involvement 46

a. Task Force to Study the Problem ..... 46
b. Boards or Commissions ............... 47.
c. Citizen Advisory Groups .... .......... 48

d. Public Hearing ........... ...... ...... 48

(1) Prerequisites for an Effective Public
Hearing ... ...... ... ... . 49

e. Public Opinion Surveys .... .. ... .. 50

f. Public Education ...... 51

E. Makeup of the Decision Making Body .... ......... ...... 52

1. Criteria for Selecting Membership ..... ... ..... 52

2. Analysis ......... ...- ....... ..... 53

3. Conflict of Interest . ..... .... 54

F. Location Within State Government ... 55

1. Assumptions Underlying State Government
Reorganization Efforts ....... ........ ... . 55

..a. Anti-Proliferation of Agencies ..... .. 56

b. Responsibility and Accountability 56

c. Coordination 57

PAGE

d. Government Should Serve the People .............. 57
e. Efficiency ..................................... 0 58

........................ o
f. Flexibility 0 59

g. Uniqueness of Land Use Functions ... ............ 0 59

2.. Alternative Approaches ........ oo.ooo_ ... o ......... 59

a. According to Function ....... 59

b. Separation. of Components ........ o .............. 60

c. Relationship to Existing Bureaucracy ....... o... 60

d. Alternative-Placements Within the State ..... o.o 61

(1) Lodging in Planning Agency ........... 0 61

(2) Independent Commission ............. o ....... 61

(3) Land Use Functions Assigned to Existing
Agency ................. o..... oo.o.-o ....o 62

VI. RELATED FEDERAL PROGRAMS: EXISTING AND PENDING
LEGISLATION ........................ o_ ...... o .......... o.. 64

A. Significant Federal Legislation 1944-1971 64
1. Listing ....... - ......... o......... o ........... 64

2. Summary .., ...................... o_ ............ o..o. 75

B. The National Land-Use Policy and Planning Assistance
Act .......... o........ o........... - .......... 76

1. Background ...................... oo ........... o..o.. 76

2. Need ... ........................ o...... o ........ t... 78

3. Major Issues ............... oo ..... o,_ ...... o... 80

a. The Relative Roles of Local, State and
Federal Government ...... o ...... o .... o..o.o..o.. 80

b. Sanctions ... 81

C. Concern over Other Economic and Soc'ial Needs.... 82

d. Inclusion of National Policies 83

e. Inclusion of Indian Lands 85

fo Public Lands .. ...... 85
g. Effects of Property Taxes and Property Owners 86

PAGE

h. What Constitutes "Cri.tical Areasif 87

i., Location of Administration ..................... 88

j. Level of Funding and Matching Ratio ..... 89

4. Summary 89
Co. Other Bills'Alive in the 93rd Congress ................. 91

VII. EMERGING STATE LAND USE GUIDANCE,SYSTEMS, ................... 92

A. Extent of Jurisdiction Choices ...................... 92

1. Critical Areas ................. 92

2. Large Scale Developments of Statewide
Significance ............ ........ 94

3. Special Purpose Regions ......... ............... 94

4. Statewide .............. ...... 95

B. Allocation of Responsibilities ................... 97

1.1 DistributfonAmong Levels of Government ............ 97

a. Hawaii ...... ................ 97

b. Vermont ...... 98

c. Oregon ............................... *.of ... 0.0 98

do American Law Institute Model Code, .............. 99.

e. Analysis 99
(1) Consensus For Local Level ................. 100.
(2) Consensus For Intermediate Level ........... 100

(3) Consensus For the State Level ............. 101

2. Distribution Among State Agencies ........... . 102

VIII. WILL IT WORK-EFFECTIVENESS ................... 105

A. Has,It Worked In Hawaii? .... 105

B. The Vermont System ..................... ........ 107

1. Enforcement ... 107

2. Administration ................................ 107

3. Effects,on the Economy .............................. 107

PAGE

C. Florida ................................................. 108

1. Difficulties in Administration .................. 109
2. Political Problems ...................... ... 10

3. Effects of the Land Use Law ......................... 113

IX. CONCLUSIONS ............... *......... ........... 114

A. Human Resources and Environment .......................... 114

B. Program Implementation ....................... ......... 115

1. Administration of the Permit System ..... 116

a. Red Tape in-Permit System ...................... 116
b. Fairness in Decision Making .... ................ 117
C. Decision Making Bodies. ........... .................... 118
D. Enforcement Procedures 119

E. Citizens-Vigilance ....... ... 119

F Summary .......... ... ........ .... .... .......... 120

X. BIBLIOGRAPHY ..... .... ..................122

A. General ... ..... ....... . ... ..... ... 122

B Federal Policies and Acts 123

C. State Policies and Plans ....... ... 124

INTRODUCTION

This report analyzes the role of the states in guiding the
use of land within their.jurisdiction. The purpose is to
offer the lay decision makers in legislatures, on local and
state level land use commissions, committees and planning
boards and concerned citizens, an understanding of the critical
issues,involved in setting up and evaluating their states'
efforts in'facing new responsibilities in land use control.

Although the U.S..Constitution initially left this function
to the states as one of the residual,powers, the states have,
up until the last ten years, routinely delegated the powers
to local government.- The 'recapturing of land use regulatory
functions is part of the !'quiet revolution" of land use controls,
largely in response to the new imperatives of shrinking
resources and large scale responsibilities too great for local
governments to handle.
It is probably@not an exaggeration to note that the environ-
mental concern of the late sixties for clean water and air
have reached maturity inthe concern for land use, which
includes both the environmental and related sooio-economic
problems facing contemporary society.

Government's role in land use control in the USA can be likened
to a tangled,ball of twine with individual strands inter-
connected in a most intricate way. At both the center and
circumference are the legal, social, written and unwritten
assumptions, traditions andattitudes of the people. Such
is the framework within which governments and their servants
have to,operate.'

Fundamental to both solving the problems and evaluating the.
proposed solutions is an understanding of the actual steps,
procedures, laws, regulations, and administrative institutions
which have evolved in previous governmental efforts at regulat-
ing land use. This report will include the traditional components
as practiced by municipalities as well as recommendations of
experts for improvements based on experience gained from past
mistakes and required by. the new demands.

After the general view of land use co ntrols, the report will
focus more specifically on the states' role. The first question
to be considered will be jurisdiction. Over what land use
activities and to what geographical extent should the state
extend its arm of control.? Other key issues will be the allo-
cation of power between local, regional, and state governments,

Page 1.

Included will be a critical look at citizen involvement in
land use decisions. The related question of the structure
and make-up of decision making boards w*ill also be considered.

Another thread of the ball of twine is the role of the Federal
government in the land use decisions of state and local govern-
ments. Significant existing and proposed legislation will be
introduced and considered as a necessary backdrop for evaluating
the states' role.

The report concludes with a review and analysis of the proposed
American Law Institute Model code and some of the emerging
patterns of land use guidance in other states. The information
and analytical variables used in this studV could serve as a
Fasis for a detailed study o7current and alternative op l'ons
for land use guidance in the state of Maine.

Although some'of the material used in this report was gathered
from a number of secondary sources (see bibliography), significant
primary material, furnished by 39 of the 50 states, was in the
form of responses to a letter from Governor Curtis to all the
Governors of the Nation in October of 1973.

We note with great interest the number of studies in this field,
in progress or just completed, by various task forces and
commissions appointed by the Governors, or in some cases by
the Legislatures.

us to benefit from the studies of other states. It illustrates
This exchange of information and recommendations has allowed

that while eachl.state has unique problems, we do have a nation-
ally shared set of problems of common assumptions, principles,
and laws, which binds us together and forces us to search for
solutions to these common problems of increasing demands on
limited land resources.

Pa-ae 2.

SOCIAL FRAMEWORK

A man was pleading his case in front of the Board
of Appeals for an exception or a variance. He was
getting more and more frustrated, till he cried out.:
"But I own it, don't I?"
and the chairman replied:
"Yes, in a way, Bill, I suppose
you do, but your land was there
for millions of years before you
were born and it will be there for
an awful long time after you're
dead. You are responsible for it
for just eighty short years. We
are all here as trustees, for future
generations, and we are just tenants
for life of whatever properties we
like to pretend we own.11 (1)

When contemplating any new program or legislation, the legal,
constitutional, and traditional values of our society have to
@be considered, both as a framework for the new system and as
limitations upon ii. Failure to do this may not only mean
dismissal in the courts, but experience has generally shown
that people will obey only those laws which they consider
reasonable and will ignore, even flaunt, laws which deviate
too far. (A good example was Prohibition.) Without the good
-will of'the prople, derived from acceptance and compatibility
with their.beliefs, enforcement is too expensive and nearly
impossible. In short, if we want a workable system to guide
the wise use of land-related resources:we must consider not
only our formal constitutional limitations, but the attitudes
and beliefs that people hold dear.

The following are some of the shared constitutional, traditional,
and contemporary attitudes which serve as framework for the
States' role in guiding. These are listed as currently assessed
and are, except for constitutional matters in a dynamic state
of change.

A. CONSTITUTIONAL FRAMEWORK

The U.S. Constitution, 5th Amendment says, "no person
shall be deprived of life, liberty or property without
due process of law; nor shall private property be taken
for public use without just compensation".

Eliot, Charles W. in The Maine Coast Prospects and
Perspective, p/6

Page 3.

- The U.S. Constitutionj 10th Amendment, reserves to the
states all powers not delegated to the Federal Govern-
ment.
- The states have police power to promote health, welfare
and safelty.
- The 14th Amendment limits such powers by prohibiting
any state from denying persons of property without due
process of law. Many state constitutions, including
Maine's, say, "private propprt shall not be taken for
y
public us(@ without just compensation; nor unless the
public exigencies require it". (2)
- The courts have classified zoning and subdivision ordin-
andes as controls under'the police power.-(3)

B. PRINCIPLES AND TRADITIONS

The democratic form of government requires maximum partici-
pation of the citizenry as close as possible to home.
- Although the areas,included in land use regulation is
necessarily expanding, community control must not be
lost. Channels have to be found for communities, from
the smallest to the largest, to be part of the system.
- Planners gather facts, make suggestions,:and explore
alternatives; but such decisions as when, whether, and
where should be made by citizens and their decision-
making bodies. (4)

C. RECOGNITION OF NEED FOR CHANGE

People generally accept that:
- Land is a limited resource, not only a commodity;,
- Land is not 2ply a money-making commodity;
- There is a crisis in land use, even if quiet. Every day,
some land is worn away. Typical development involves
conversion from a lesser to a more intensive use, usually
irreversibily and often with deteriorating environmental
quality;
- The complex nature of society, the increases in technology
population, demands mak es some kind of planning desirable;

(2) Maine Constitution, Article I, Section 21
(3) York Harbor Village Corporation v. Libby (1928) 126 Me.
537, 140A, 382 Additionally the read:er is referred toan
excellent historical and judicial analysis: The Taking
Issue: An Analysis of the Constitutional Liml==Land
use (75-ntrol, by F-red Bosselm, U.S. Government Printing
Office, W_as@ington, D.C. 20402
(4) Reich, Charles, I'The Law of Planned Society," Yale
Law Journal, Vol. 75, July 1966.
Rq Pt- 4

- In the absence of controls over land use, decisions
would continue to be made primarily for private economic
gains, that is there may be times when an unbridled.
pursuit of the profit motive may conflict with or at
least not be compatible with the best interest of @he
public health, welfare , and safety;
- Continuation of-present development trends will-result
in further deterioration of our land, air and water
resources to such a point that we may.be courting major
natural disasters jeopardizing human life itself;
- We are entering an era in which qualitative values and
aesthetic factors are-increasing in importance;
- The future 6f.succeeding generations in this countrywill
be shaped by the choices we make. We must choose well,
.for they cannot escape the consequences of our choices;
- Dealing with each land use problem as it 'reaches the
emergency level will not suffice. Government can't
function only by reaction.
D. LIVING WITH CONTRADICTORY VALUES

"People, since they are people, always want
to have their cake and eat it too. They are
always containing within themselves values
which are mutually inconsistent, but they
haven't explored it enough to know they are
inconsistent. They all have values which
are in conflict with the sheer facts of
life." (5)

and
"In Parsipanny, New Jersey,,a belief in free
enterprises reigns supreme - as long as the
enterprise is exercised someplacelelse.11 (6)

Regulations and controls need not deprive us of our rights
to private property. @Quite the contrary, they enable'us
to-enjoy and benefit from it more, although sometimes the
benefit is not immediately realized..

A judge in New Jersey expressed the concept that zoning
does not take away rights, it gives them:

(5) Prof. Israel Stollman cited by Richard Babcock in
Zoning Game, p. 39
(6) Babcock, Richard,..Zoning@Game, P.-21

Page 5.

"Lawful, restraints upon the conduct or
acts or persons are not intended as
infringements upon liberty, but instead
thev are intended as a protection of
-freedom and to quiet and peaceful en-
joyment of property. Such restraints
are in the common interest and promote
general 'Welfare. Valid zoning ordin-
ances 'create valuable property rights
that dil-d=n7 exist prior to their adopt-
ion." (7)

E. REGULATE BUT DON'T-LIMIT GROWTH

The former policy of "growth for growth's sake" is under-
going reexamination. It is recognized that in order to
minimize the costs and maximize the benefits of growth,
detailed knowledge of the resources to be utilized,
modified, or irrevocably committed is required.

The basic purpose of state land use controls is to direct
(rather than block) growth toward the most desirable Dattern
of development so that land use is properly related to the
level of services or protection required. The people,, and
their elected officials have not accepted a need for limiting
growth. They are convinced they can have economic growth
with environmental quality. In Maine this is expressed by
the slogan, "Development through Conservation'-', the explicated
policy of the current administration.

F. GOALS AS A SUMMATION OF OUR ATTITUDES

Finally, a special form of belief is embodied in the goals
toward which our policies are aimed. Three experts in the
field of land use control sum up the objectives which most
successfully combine all our attitudes:

British-commentator, John Delafons lists the objectives of
American land use planning as:

prevent conflicts between private 'interests in land use
prevent conflict between u lic and private interests
t
prevent conflict among DUER11Rinterests
secure sound standards or new development
facilitate private development and encourage private investment
still make our town (city 'state, nation) a better place to
live and do iness in;

Honorable Donald Walsche, Judge of Superior Court of State
of New Jersey, June 1953, cited in Herbert Smith's The
Citizens Guide to Zoning.

(8) Delafons, John, Land Use Controls in U.S., (1969) p. 40

Law Professor Jan Krasowiecki:

"Fundamentally,.every land use control
system is a system which strives to
obtain the maximum public benefit from
the use of land and a fair allocation.
of benefits and burdens of the S@stem
among different individuals 9

Planner!Richard Slavin:

"The goal is to develop policies and
programs taking into account both people's
and nature's need for the purpose.of min-
imizing the areas of conflict and discover-
ing and enhancing the areas of harmony.11 (10)

(9) Krasowiecki, Jan, "Model Land Use and Development Code",
Urban Law Annual.

(10) Slavin, Richard, "Toward a State Land Use Policy", State
Goverment, Vol. 44

Page'7.

DEFINITIONS AND COMPONENTS

The term Land-Use Guidance includes all the government decisions,
processes., procedures, laws, and regulations which determine
how landis to be used. This broad definition can include all.
land, private and public, at all stages of development--wild,
untouched, developing, or highly urbanized. Although this study
focuses on state government's role in guiding the use of land
the same types of activities are also applicable to other levels
of government.

Phrases often heard in this connection are "land use planning",
"land use regulation", and "land resource management". The
term "land use guidance" was expressly chosen to indicate to
the reader that we do not mean just "planning" or "regulation"
or "management". David Heeter, in Toward a More Effective Land
Use Guidance Lstem, chose the phrase "land use guida-HU-67-1,
because,
"it would be in fact a misnomQr to call
it a regulatory system. It is a land
use guidance system composed of a variety
of techniques, including regulations
(planning and management) which are to
be applied in concert to guide the use
of land." (11)

Governmental efforts at guiding the use of the land either has
currently or is clearly in the need of having these elements
or components:
- policies based'on set of goals;
- a comprehensive planning process which seeks to interpret the
policies with existing resources;
- various tools from zoning to acquisition to implement the wishes
of the people;
- an enforcement system which has to include a permit, inspection
and control for t;ompliance with the established ordinances;
- an appeals procedure which assures due process and equal treat-
ment under the law;

Definitions and analysis of each of these components'follows.

A. POLICY FORMULATION

There is a great deal of confusion in the literature and the
laymen's %k minds about tPe meaning of the word "policy". In
standard govePnmentese one often hears this or that candidate,
elected official, or commission recommend or adopt certain
Y
olicies.' Perhaps because policies are'usually explicated
even if in general terms) and goals are not,',we tend to think
of policies as forms of goals. To arrive at a common baseline
of understanding it will be useful to'define the two terms

Heeter, Davi d Toward a More Effective Land Use Guidance
system, (1969@ -p-77

Page 8.

as used in this paper:

Goals: The broad purpose, direction,or end towards
which all the agencies' efforts are committed
and directed. A goal is expressed in terms
of an ideal situation envisioned,without
regard to time or means of achievement.

Policies: An identified set of rules to be followed
to guide present and future decisions. (12)

Policies, then, flow fron,a.set of goals. The process of
formulating goals are still very difficult. Policies
are usually formulated from a set of goals that are
inferred '

It is only recently that the need for a set of policies,
duly discussed and adopted, has become recognized as an
essential part of any land use guidance system. Nation-
wide study commissions on land use problems (Douglass
Commission, ASPO _@or Connecticut) recommend a definite
process for the formulation of policies which reflect the
composite goals of the citizens in a state. Because these
are the crucial decisions which will guide the future and
will affect everyone,lit is es 'sential that citizens partici-
pate in these decisions to the fullest extent possible.

Policy decisions are sometimes tough, possibly the most
difficult aspect of the whole system. The policies arrived
at must be reconciled with competing and conflicting inter-
ests. Development policies-should face such questions as
"the quality of growth and terms on which it will occur,
at what cost and benefit." (13)

A number of states have completed statewide plans which
are fucused around key policies, and which should illustrate
what is meant by "policies" regarding land use.

Included among Connecticut's proposed policies are:

- "Establish and protect sufficient water supply sources
to meet future supply needs." (14)
- "Encourage urban development to be at sufficient densities
for the economic provision of services." (15)

(12) Haskell, James, Unpublished paper, July 1974
(13) ItMaine,Manifest'l,' the Allagash Group, 1972

(14) Policy_#1 out of 10, Connecticut Plan
(15) Policy #6 out of 10, Connecticut Plan

Page 9.

Vermont's policies, published in the draft of the State
Land Use Plan, prepared for public,hearing, are the pro-
ducts of more specific decisions:

- "It is the desire of Vermonters to retain the essentially
rural character of the state with settled areas clustered
within rural lands and forest lands."
- "Settlement of rural lands6thould occur on lands that have
low potential for agriculture, forestry of mineral extrac-
tion and are quickly-and convenientlv accessible to cities.
Large developments should not occur on other rural lands
unless directly related to agriculture or the utilization
of natural resources."
- "Development of vacation homes to serve Vermont's seasonal
population should generally occur on lands which are suit-
able for permanent residences."
- on growth - "Excessively fast growth seriously hinders
effective land use management. Growth should in no event
occur at a greater rate than the state or particular
regions or localities can accomodate consistently with
maintenance of the*Vermont character, resource conservation,
and orderly public investment planning."--and very specif-
ically:
- "Where alternative development proposals compete for limit-
ed lands and resources, development io serve the seasonal
or transient population should be subordinate to develop-
ment for the resident population." (16)

The Colorado land use policies derived from the integration
of goals organized into four major concerns: The Environ-
ment, Natural Resources, Population and Economic Development,
and Rela@ed Social Concerns. The separation of "Environ-
ment"and"Natural Resources" is a -new and interesting concept)

The goals for the environment include conserving the air,
water and,scenic resources, controlling development in
hazardous fragile areas while providing adequate recreation.

The goals regarding natural resources is to ensure that
development is consistent with the environmental, economic
and social goals. The policy is to strengthen the state
mining law while assessing new markets for and develop
non-fuel minerals to stimulate new economic vitality in
growth centers. It also includes a policy to encourage.
steps toward.a "State Forest Policies Act".

The goals regarding Economic Development and Population
is especially interesting because it deals with the growth
question in a very specific and unique manner, The policy

(16) State Land Use Plan: A Draft, Vermont October 1, 1973

Page 10,

recommendation is that a goal of a set percent of population
increase be targetted in each of the'five very different
geographic regions of the State. This policy is arrived at
on the basis of the human and natural resource base,in these
regions and in light of the other-3 major goal categories.

The policy plans regarding Related Social concerns integrates
the human resource with the other three.

It recognizes that both private market forces and govern-
mental land use controls may have profound if unintended
social impacts:

IfThe imposition of environmental controls, by
limiting or prohibiting certain kinds of commer-
cial and industrial activity, may alter established
patterns of employment and culture. To compensate
for'such effects, programs.to assure access'for all
citizens to public areas, provide low cost housing,
relocation assistance, and alternative employment
opportunity are needed.11(17)

These are the broad outlines. Each category has of course
more specifies underit.

The point is that policies don't have to be,so general that
they loose effectiveness. If the difficult decisions are
made at the policy-making level, it becomes easier to apply
them to the formulation of standards and criteria, and ulti-
mately to the decision on granting a permit on specific
proposals.

As in Alice in Wonderland: "Would you tell me, please
which way I ought to go
from here," asked Alice.
"That depends.a good deal
on where you want to get
to," said the Cat.

Lewis Carol
Alice in Wonderland

LAND USE PLANNING

"Planning is one of the few tools available
to guide change. Change is coming at us
like an express train down a railroad track.
We could turn away--only to be soon run down
by its massive force. Better that we stare
it in the eye, recognize it for what it is,
and.stretch it onto a tract of our own choice.." (18)

(17) A Land Use-Program for.Colorado, p. XVIII
(18)'Richard RuBino in Maine Coast Prospect 'and Perspective,
P. 50

Page 11.

Planning is an essential part,-sometimes the only
element performed on the states level, in any pro-
gram seeking to guide the use of land.

A comprehensive plan is usually a prerequisite of
any ordinance seeking to regulate land use. The
standard enabling law for zoning requires that
"regulations shall be made in accordance with a
comprehensive plan." Land Use or Land Capability
or Land Development Plans are often found as applied
titles of Comprehensive Plan. "Planning" also
includes the data collection system, an adoption
process by other agencies or government and finally
planning is a process of continually updating and
evaluating data in light of@changes in technoloby,
economics and social attitudes.

1. Comprehensive Plan

The Comprehensive plan has become a prerequisite for
governmental regulations over land use. The basic
reason for this is that in order for any imposed
restrictions to be fair and just they have to be based
on objective criteria of physical conditions and pre-
determined policies. The existance of a plan with all
the information on resources and proposed uses sets a
basic set of ground rules for regulations and enforce-'
ment actions for governmental agencies. It also affords
the owner of private property or potential developer
a predicatable guide for his individual decisions. It
is,,of course, essential that all involved (players in
the game) then follow this plan (rule-book) in a con-
sistent manner.

The definition in the Maine Statutes is:

"A compilation of policy statements, goals,
standards, maps and pertinent data relative
to the past, present and future trends of
the municipality (or-region, depending on
jurisdiction) with respect to its population,
housing, economics, social patterns, land use,
and water resources and their use., transport-
ation facilities... (It), being as much a
process as a document capable of distribution-,
may at successive stages, consist of data
collected, preliminary plans, alternative action
proposals... (It) shall include recommendations
for plan execution and implementation... 11(19)

(19) Maine Revised Statutes, Title 30, 4961

Page 12.

Through numerous court decisions, testing the
validity of zoning ordinances, comprehensive plans
have accumulated extensive legal definition. For
example in New York Courts such a plan "connotes
full consideration of problems presented and rea-
sonable and uniform provisions to deal with them
which tend to promote general community welfare" (20)

but

"It is not necessarily a written document. 'It is
an underlying purpose to control land uses for the
benefit of the whole c6mmunity's problems." (21)

The major purpose of a comprehensive land use plan
is to inventory the non-controlled phenomena, natural
processes, and visual characterisitcs of an area; to
reconstitute these in a value system, thus helping
decisi6n-makers perceive the degree to which they
offer both opportunities and restraints to land use.

2. The Land Use or Land Develo@ment Plan, a part of
the com-pr-e-Fe-nsive p7an,is the proposed or projected
utilization of land. It relates the specific area
considered to the general location of districts for
residential, business, industry, farming, forestry,
recreation, watershed, conservation, and open space
purposes.
3. Data Collection'or Inventory-

A part of the planning process is the collection and
use of data or inventory of existing resources,.pop-
ulations and rates of uses. Any data.collected should
be capable of being stored, retrieved when needed and
used for prediction purposes. Data should be reliable
and in such a form (standardized) that can be used for
a variety of purposes.

As state level landuse concerns'have advanced, several.
states have begun developing more sophisticated systems
for data collection and land use data. Various agencies
are involved in data collection to fulfill their functions.
,(i.e., Fish & Game, Transportation, Commerce & Industry)
Some of their information is usable in the comprehensive
planning process.

Some.states are now beginning to develop means of
inter-relating data from these diverse sources. Ge orgia's

(20) Albright v. Town of Manlius, 312 N.Y.S. 2d 13
June 30, 1970
(21) Walrus v. Millington, 266 N.Y.S. 2d, 833, February 4, 1966

Page 13.

environmental mapping systems (GEMS), Minnesota's
Land Management Information System and Wisconsin's
Critical Resources Information Program (CRIP) are
examples of this aspect of planning. In Maine the
State Planning Office coordinate M.I.D.A.S. (Maine
Information Display Analysis System). Arizona has
completed a sophisticated Arizona Trade-Off Model
(ATOM) which provides a comprehensive evaluation of
policy alternatives for economic growth and the environ-.
ment by indicating changes that would result from.
particular decisions.

4. Review of Comprehensive Plan'

Since the comprehensive plan does involve a high
expression of political policy the writers of the
Americal Law Institute Model Code (ALI) strongly
recommend it must be consciously related to the
political forces of government. The'Model Code
suggests that the plan.be.submitted to the Legis-
lature, and if not disapproved within 90 days be
deemed accepted. (22)

Some statutes require review by other governmental
agencies, such as Regional Planning Commission, or
by an other state agency, the State Planning Office
and the Governor.

5. Planning as a Process

The ALI Code also recommends the establishment of a
"Long Range Planning Institute," probably affiliated
with the state -university, to take a broad view in-
dependent of the government agency.

It should be remembered that although elements of a
plan might be complete at a given time, it has to be
able to reflect the effects of dynamic change. A
means of re-evaluating has to be built into the pi@o-
cess of comprehensive planning. A review of,com-
prehensive plans is recommended at least every 5 years.
Finally, lest the above sounds like we are on our way
to utopia9 it is important to recognize that, as Delafons
says, 11plans are no better than the means of implement-
ing them."

(22) Note to article 8 405
A Model Land Develo2ment Code, Tentative Draft #3,
American Law Institute (ALI), April 22, 1971.

Pagp 14.

C. TECHNIQUES OF LAND USE GUIDANCE OR TOOLS OF PLAN.
IMPLEMENTATION

The tools available to the state-to direct the use of the
land, and to implement any plans, fall into three general
categories: police power regulations, degrees of direct
aquisition, and taxation policies.

Under the police powers, the state can adopt regulations
which reasonably promote the "health, safety, morals and
general welfare." Regulations may be self-administering,
that is, the provisions don't require further administra-
tive actions except to check or enforce compliance; or,
they may require an administrative agency to make an order
@.for each.individual.case, based on standards or criteria.
Subdivision ordinances, site review, and conditions for
special exceptions fall into the latter category. (23)
These cat,egoriesare not mutually exclusive, however.
There needs to be explicit performance standards for use
-in certainIzones; and,th6se could be self-administering
understood criteria in a permit-giving system. For
example in a certain limited residential district, road
construction is permitted following a set of standards
aimed among other things at preventing erosion. In an-
other district, resource protection, road building requires
a,permit from the Planning Board which may set down more
conditions necessitated by the resource being protected.

The concept of regulatory control has been established by
the municipal use of the police power to zone, as delegated
by the states. It is not entirely certain that the same
tools will be finally applicable and effective on the
state level., However, some of the processes are,the same,
even if ultimately modified and called.a different name.

1., Zo ning

A major step in implementing a comprehensive plan or
a land use policy, is traditionally the use of devices
such as a "zoning ordinance." In every day language,
zoning is the activation of the maxim "a place for.
.everything and everything in its place."
A court's defini.tion of zoning is "territorial division
according to the character of the land and the build-
ings, their particular uses and uniformity of use within
the zone." (24) It is "based upon an enabling act which
sets forth specific purposes and classifies homogeneous
and compatible uses into separate districts under a

(.23) Krasowiecki, "Model Land Use and!-Development Codell,-Urban
Law Annual

(24) Northwest Merchants Terminal v. O'Rourke, 60 A 2d 74@9
MD 1948

Page 15.

comprehensive plan so as to'enable a community to
exclude specific uses which could not be so exclu-ded
under municipal police power" (25)

Zoning then, is the regulation' of property use by
dividing a geogr @aphical area into districts and by
specifying what uses of land are permitted or pro-
hibited in each district.

A zoning ordinance is,one of the legal Imeans of
specifying how the comprehensive plan is to be
implemented. They aim at ensuring that development
@aotivities will be compatible with existing uses
and constraints dictated by the land. They serve to
protect both public and private investment as well
as the public health and safety and general welfare.
@Zoning regulations set forth the steps which must be
taken and the conditions which must'be met before an
existing land use may be altered, or a lot, tract, or
parcel of land improved.

The zoning ordinance itself will spell out'the means
of administering these regulations. It will provide
for several processes: an appeals procedure to@inter-
pret the zoning law,and to correct alleged errors in
any interpretation;.aL process to determine whether
special conditions for specific uses required by the
regulations (conditional uses and special exceptions)
have been met; and a process to hear and decide requests
for variances from the strict interpretation of regu-
lations and for amending or reconstructing the.estab-
lished zones and standards.

A zoning map is the graphic depiction of the zoning
districts within the area for which the zoning reg-
ulations are applicable. It normally includes an
indication of'the boundaries of each of the zoning
districts, as well as a schedule of uses legend showing
the type of uses which may be'-permitted in each of the
zoning districts. It *also normally-includes identifi-
cation of roads, streams, and other "fixed cultural"
natural features a's well.as:dimensions indicating the
boundaries between zoning districts. It is adopted
as a legal part of the zoning,ordinance, and is des-
ignated'as the official zoning map for a particular
geographic area.

(25) Andover Township v. Lake, 214 A 2d 870, N.J.,,1965

Page 16.

2. Performance Standards

.-Performance standards are criteria which allow the
consideration of alternate uses which might be com-
patible with the values being protected. "Without
definite standards, an ordinance becomes an Iopen door
to favoritism and discrimination," (26) Standards give
the permit-giVing body an objectivemeans of judging
several applications against the same criteria and
therefore, assure.equal treatment under the law. Standards
will usually indicate not only the uses permitted in a
zone, but also the s ecific requirements of the usage
(size, bulk, setbackr Performance standards are special
standards in the zoning regulations which establish
required performance measurements in a particular zone,
or for a particular use and areenfo.rced by a designated
agency. Any use that can meet these standards will be
allowed. Performance standards can also deal with smoke
emission, noise, odor, glare, disposal of waste material,
and the actual process of operation of the particular
use. Once a use has been permitted, it must maintain its
ability to perform.according to the standards, or else
have its certificate of compliance revoked.

Performan ce standards can also be written for special
areas or activities designated by the state as "critical".
The state,.by statute or an.authorized agency, may
establish standards for future developments in these areas.
This is anew concept which extends the spliere of tra-
ditional zoning ordinances.

The criteria in the 'Vermont-Land Use and Development Act
are..examples of standards.for land use legislation used
throughout the county. "Before granting a permit,
subdivision or development: 1) will not result in undue
water or air pollution ... 2) does,have water available for
the reasonably foreseeable needs of the subdivision...
3) will not cause unreasonable high,@ay congestion'or
unsafe conditions.f? (27)

This device should not necessarily be@forced into a
typical zoning framework. The significance lies in the
standards of performances for various*uses. The narrow
concept of similar uses in homogeneous areas, as in
municipal zoning, just does not apply to vast regions of
land.

This t of regulation (not necessarily based on
zoning has been tested in the courts. The Supreme
Judicial Court of Maine'ruled'that criteria for

(26) Homrich v. 'Sto vas, 372 Mich. 5 32 (1964) cited by Delogu,
Planning and the Law in Maine, Part 2, p. 19@
(2@) Vt. R.S.A. 10 9 6086 Supp. 1971

Page 17.

allowing developments, as exemplified by Maine's
Site Location Law, (38 mRsA � 481-88') (and similar
to Vermont's, quoted on previous page) are not uncon
stitutionally'vague nor do they deny equal prote 'ction
of the law.. They were held to be a reasonable exer-
cise of the,police powers of the state. (28)

3. Interim Regulations

Before leaving the discussion on regulations we should
mention Interim regulations. Thes6-usually refer to
a set of standards and regulations developed for a
limited period of time. The interim is between the
time of recognition of the need to regulate and control
and the completion of a comprehensive-plan.

The only legal definition found in West's "Words and
Phrases" is: "Interim ordinance is one passed with
intention of preserving the status quo'until a sub-
sequent zoning ordinance can be enacted." (29)

The ALI Code recommends a "short-term program" for a
specific stated period of time "in order to achieve
ogjectives, policies and standards contained in the
plan." The authors do recognize the need for state
regulation before a plan is complete. "The Reporters
have rejected the idea that the adoption of a state
land development plan (comprehensive plan) should be
pre-condit,ioned for state regulation. The social and.
environmental problems demanding state action are so
urgent and important that the delay inherent in require-
ing formal adoption of an official state plan outweighs
any gains that would be achieved." (30)

The comprehensive land use laws already in effect in
Hawaii, Vermont and Oregqn have interim provisions:

Hawaii - had provision for reg ulations designed "to
7-
main-Fain the existing conditions, in.so far as
practicable and reasonable, until the adoptior! of
regulations in their'final form... Their interim
regulations were adopted 9 months after this law
(1961), but only after public hearings, with the
same specifications as for permanent regulations.01)

(28) Re Spring Valley Development by Lake'sites, Inc. Me. 300A
2d; 736, (Feb. 1973)-

(29) Phillips Petroleum Co. v. City of Park Ridge, Ill., 149
N.E. 2d 344- March 31, 1958
(30) ALI, Article 8 404
(31) Act 187, Session Laws of Hawaii, 1961

Page 18.

Vermont - "Prior,to adoption of the capability
ai=5`Vvelopment planp the board shall adopt an
interim land capability and development plan which
will describe the present use of the land and
use based on@ecological considerations." (32) These
standards are in effect.until the adoption of 'a land
use plan, Public hearings were also included.

Oregon - Prior to approval by the Commission of its
statewide planning.goals and guidelines the goals
adopted in a,previous law (-ORS.215,515) are to be in.
effect. This previous law authorizes the governor
to prescribe and administer plans 'and zoning ordin-
ances for lands within a county not regulated by
December,31, 1971. Under this authority Governor
Tom McCall placed a moratorium against issuance of
any building'permit in Li:hcoln County.

in Critical Areas- Another means of interim control
available toit state is the designation of areas
of critical state concern. These are areas which
present problems of immediate and critical import-
ance. The authors of ALI

".do not recommend'...that the state be prohibited
from designating any district of critical state
concern until it has"prepared and obtained
legislative approval of a Comprehensive State
Land Development Plan. Many of these districts
will.present problems of-immediate and critical
importance and if designation is delayed, the
probability of seeing the area preserved or
developed in a manner consistent with the states
p
goal will be forever lost."( 33)
.4. Degrees of Direct@Ownership

Direct ownership by the istate is potentially the surest
technique of assuring that the land is used in the public
interest. There are various.degrees of ownership where-
by the state can acquire direct control of certain land
areas.

a. Easements: The state may purchase a right, privilege,
or advantage .in.the use of the land, but still not
be outright (fee simple) owners of the land. Conser-
vation easements may be positive or negative. They
may provide access to public or private land, for
hunting or fishing, or to a lake or stream, or they
may simply keep land open by denying certain develop-
ment-rights. A negative easement would deny the owners
(for a priceYcertain specified uses of the property.

(32) 10 Vermont Statutes 604
(33) ALI, note to Article 7, Section 201

Page 19.

b. Purchase and Lease Back the state as a landlord
can set conditions or restrictions for use of the
land. It could lease to developers, in which case
the state might form a development corporation. This
has been used by public or quasi-public Development
Corporations, where the city purchases.the land and
leases-it to developers. This technique is also
applicable to new towns and industrial parks.

c. Purchase and Resale - also used in urban renewal
projec7s. This re-chnique allows the government to
set conditions for resale so the development can
proceed along a plan.

d. Land Bank concept is actually a form of Community
Developm nt Corporation except on a state level.
The state becomes the owner of land by gift or
purchase without necessarily a specific proposed
use in mind. It then holds this land in a "bank"
andcan plan for the use of the land in the public
interest on a permanent basis.(34)

e. Eminent Domain is a power of government to secure a
particular tract of land which may be necessary for
carrying out a public purpose-. Proceedings under
this power are usually well-defined in.the statutes
and the owner of the land is compensated for the loss.
Usually the state acquires a "fee simple" title,
but easements can also,be acquired byeminent domain.

Florida has an interesting measure, which can be
considered as a new technique, but is more likely
a combination of all the above, including compensation
for taking the land'. According to the 1972 Environ-
mental Land and Water Management Act, the state can
completely ban development on land it considers en-
dangerod; but it must purchase these lands outri-ght.
The voters of the state passed a $240 million bond
issue to back up this provision.
That'government, itself,.-is often.a "developer" of
the land, and as such can have considerable impact
on land use patterns, should not be forgotten.
Military bases, post offices, parks and.highways
will have considerable effect on private develop-
ment in the future. These should be no less regu-
lated or planned or than private developments.

(34) Maine Manife.st, p. 5-18

Page 20.

Lands to be acquired by eminent domain is, of course,
the surest way the state could attempt to implement
a policy of protecting 'a particular resource. Areas
for acquisition and the proposed timetable should
be included in the action plan of the comprehensive
plan.

Taxation Policies

The taxation power of the state can be a factor in land
use decisions. Tax measures, formulated in light of
policies and goals of state land use, can be an adjunct
to the state's system of land use guidance. The scope
of this paper allows only a listing of taxation policies,
to be considered by the reader for their effect on land
use.

a. Property Taxes

Obviously, if all the money needed by municipalities
comes from this tax, the policy of that level of
govermment will be to do what it can to encourage
tax-producing developments - sometimes with a "come what
may" attitude. The "biggest bang for the buck" attitude
will often over-ride long range immeasurable social
or ecological considerations.

b. The Rate of Taxation, of course, will be a factor
in the owner's decision on use of the land. The
balance between how much is needed to fulfill the
fiscal responsibilities of the state and how much
would foster undesirable land use creates a tough
policy question, which has to be answered by the
state policy-makers in light of all the policies of
the state.

The rate of taxation of a resource product, i.e.,
Tree Growth Productivity Tax can be delicately set
to hit the right balance between being too low, too
high, or just the right level to encourage good
management practices. Used properly the amount of
taxation can be a tool to implement a policy of
the state aimed at conserving a highly productive
economic resource, such as the forests.

c. Level of axation - taxing of property on a regional
scale, instance, could possibly do much to
encourage the appropriate, rather than expedient,
use of the land, based on municipal competition for
taxable development.

Page 21.

d. Current Use Taxation, instead of potential use
,the rate would determine what an owner will do with
his land. If the rates of current use are lower
than the rates of potential use, he might not be
forced.to-prematurely sell his land to a more intense
user. -Maine's Farm and Open Space Land Law
enables certain farm lands and open space to be taxed
at current use value rather than the highest and
best use. The farm lands must be at least 10 con-
tiguous acres and must be so assessed by the tax
assessor. The open space designation must be in
conformance with the Comprehensive Plan and be
approved by the'Local planning board or the Land Use
Regulation Commission . (35).

e. Capitol Gains Tax - tax on the profits gained on
land by buying and selling within a short period of
time. Vermont passed such a "tax on the gains from
the sale or exchange of land." The rate of taxation
diminished with the number of years held, down to.
nothing if held more than six years..(36) The
intention is to discourage land speculation.

6. Supplements to Police Power

There are times when the above techniques are not
adequate to accomplish the state'-,s objectives-of land
use control. The search is continuing for a solution
to the unanswered tension between the constitutional
lim'itations of "taking" an d the need forprotection
of the long range community public interests.
David Heeter believes that development incentive and
compensatory payments are supplements to the police
power which could make them a more satisfactory vehicle
to over come the constitutional limitations. (37) A
"development incentive" or trade-off type arrangement
might be, for example, to allow a developer to build
at a higher density than spelled out in the ordinance,
but requiring him to set aside a certain percentage of
the land for open space or recreation. Compensatory
payment may be made to a landowner on the condition
that the regulations continue to be in effect. The
damages to be paid would be the difference between the
value of the property before and after the imposition
ofregulations.
Another fascinating technique just beginning to be
discussed is the "DevelopmentRight Transfer". It is
a means whereby an owner of property who has been

(35) 36 MRSA 585-593
(36) Vermont Statutes, Title 32, Chapter 2,36, 1973 Sapp.
(37) Heeter,,David, p. 11

denied or postponed his option for development by
zoning or moratorium can sell his right to a purchaser
whose property is located on developable land. The
purchaser then has bought a right to develop at perhaps
a higher density or greater height or whatever conditions
set by the regulatory agency. This technique looks
like a dream solution to the problem of compensating
the private property owner while handing the governmental
agency a guiding tool so it can encourage the kind of
developments its policies favor. It seems worthy of
greater study by all land regulatory agencies. (38)

According to.Fred Bosselman in Quiet Revolution - "further
exploration is needed to provid7e a-sound legal-ratio'nale
for setting off benefits created by the regulatory pro-
gram against the losses caused by restrictions." Although
the value of one piece of land might be lowered temporarily,
an adjacent piece of land might increase in value in
the long run because of regulations. Finally, he says,
"Those who create systems of land regulation based on
modern ecological knowledge should be aware of the con-
stitutional issues, but should not be'so afraid of it
that they ignore the approches that are available for
working creatively within the constitutional limit." (39)
There is currently a growing interest in examining the
possibility of a system of compensatory payments.

D. METHODS OF ASSURING COMPLIANCE

There is a set of techniques to assure that the whole system
accords with the comprehensive plan, regulations, and standards.
Without an effective system whereby the intentions, policies,
and comprehensive land use plans can be implemented, the
whole system is a shameful waste of money. Enforcement has
a number of components:

1. Informing Potential Applicants

The first essential step is to devise a method of in-
forming the public of the existence of the law. Potential
developers must be made to realize that certain activities
will require a permit. The applicant must have available
to him an application, which will channel all the inform-
ation pertinent to the enforcing agency, so it can judge
whether the proposed use is in accordance with the
guidelines and standards for that district, as provided
in the ordinance.

(38) J.J. Costonis, Development Rights Transfer: An exploratory
Essay; Yale Law Journal, 83:75-128, November 1973, or
D.M. Carmichael ' Transferable Development Rights As A Basis
of Land Use ContnoT_,=orida. State University Law-Review,
2:35-107-,Vinter. 1974

(39) Bosselman, Fred, The Quiet Revolution In Land Use Control,
(1971) Page 23.

t
2. Granting of Permits

There must be an agency, a Commission or a Board,
whose function is to handle applications for permits.
Permits are judged according to the "standards" for
permitted uses, and special conditions spelled out in
the ordinance. Part of the permit system is the con-
sideration of special exceptions and variances to the
provisions of the zoning regulations. The decision
making body or person will also consider unusual cir-
cumstances which may require variances from the ordin-
ance. In order to have an enforceable land use guidance
system, the Commission will have to grant only variances
that are consistent with the basic intent of the ordin-
ance. Criteria for special exceptions and variances will
need to be clearly spelled out.

3. Certificates of Compliance

Certificates of Compliance or occupancy are issued by
the Commission or Agency to indicate that the construction
of a building, subdivision, development or any other
activity is in accordance with the conditions of the
permit. This is a check on the whole procedure. It
means that an inspection is necessary before a structure
can be occupied or a development operational. It assures
that the proposal at the time of completion meets all the
applicable requirements and/or conditions placed on its
original permit.

Although this may seem like a costly requirement, it is
cheaper than picking up individual violations, and is
more effective than just hoping for the best.

4. Inspection

There must be an effective system to assure that the law
.is being obeyed..

The location of the agency within various levels of
government empowered with enforcement would depend on
the organization of the system. Inspection could be
accomplished by other agencies in the field, or could
be delegated to local agencies which are in the best
position to discover violations.

The important thing is that there should be an efficient
method of inspection in the field, so that no one can
feel that the law is unenforceable and that he can get
away with violations.

Page 24.

5. Provisions for Penalty to Violators
All land use legislation 'has enforcement provisions
for handling violations, such as cease and desist
powers, and penalties for violations. The literature
does not contain much.discussion on penalty provisions.
Is this perhaps because we are mainly focusing on
establishing a system (or is it because we are such
a law abiding nation)?

Max* e.n lt rovisions are fixed between $500
1mum
(Vermont@ anad J1POOO (Hawaii) per day for 'violation.
The enforcing agency may, in the name of the state,
"institute any appropriate action, injunction or
other proceeding to prevent, restrain, correct or abate
any violation hereof of the rules promulgated hereunder."(40)
A similar section is customary in all such statutes.

The threat of court action and penalty is an essential
psychological component which indicates to the public
that the law will be enforced. It is not unreasonable
to assume that the greater the rate of successful
prosecution in the initial stage, the less will be the
need for it as time goes on.

E. PROCEDURES FOR APPEAL

The last component of a land use guidance system is a pro-
cess for appeal or for adjudicatory review.

The word "appeal" means an application for review by a
higher tribunal. Adjudication is "to pronounce or degree
by judicial sentence, settle judicially, pass judgement."
Obviously, then, the specifics of the review procedure
will be determined by what powers are delegated to lower
levels of government.

When a decision is handed down or a permit is denied at
the local or regional level, then there is a choice of
appeal routes. The appelant may turn to the court system
(at that level) or to a state agency set up for review
purposes. Decisions by state agencies may be appealed to
the state court or'to an administrative review board.

In all cases, court, commission, or review board--the
records of the hearings held by the previous agency are
considered evidence at the appeal procedure. In cases where
there were no hearings, then there are procedures for pro-
ceeding de novo (or anew, from the beginning)- either going
back to Tge-7-n-11-tial agency or at the present hearing. The

(40) 10 Vermont Statute, 9 6004

Page 25.

State Land Adjudicatory Board (in ALI) would have the
same powers of issuing decisions and attaching conditions
and restrictions as the agency whose decisions are being
reviewed.

While the adjudicatory board bases its decisions on the
same set of policies, standards, regulations as the local
agency, the basis for judicial review includes constitutional
and due process considerations. The court may declare an
order, rule, or ordinance (or part thereof) invalid if it:

- is contrary to the constitution of the U.S.;
- is in excess of the statutory authority;
- was issued without observance of procedure required
by law, i.e. proper notification of affected owners
and public, proper minutes and proceedings at hearing,
duly sworn in officials; '
- is arbitrary, capricious, in abuse of descretion,
or is otherwise not in accordance with law;
- not based on findings of fact presented at hearing.(41)

(41 ALI Code 9 109

Page 26.

IV. JURISDICTION

Jurisdictio n is the territory over which (any) authority is
exercised. The jurisdiction of land use control is currently
expanding from municipal bourdaries to larger geographic areas,
and to activities which, by impact, affect larger areas than
municipalities or townships.

A. NEED FOR STATE LEVEL JURISDICTION

The physical resources, and the populations dependent upon
them, are not contained in tightly defined political munici-
pal boundaries. The current concern for the environment
stems from the recognition that the use of natural resources
has complicated, sometimes with unpredictable consequences
on the present and future natural and human resources in
areas considerably removed from the original resource being
used.

Water is a good example of a resource which ignores artifical
municipal boundaries. The use to which the land is put in
a watershed certainly affects water quality and all of the
people who depend on it. The water supply of the citizens
of a very wide geographical region has to be guatanteed
either by voluntary coordination of geographical entities
in a whole watershed or by some regional government which
can guard the water fron undue pollution.

Whole areas, such as shorelands, wetlands, mountain tops,
and forest and agricultural lands, are all critical links
-in the environment; yet they very rarely coincide with the
established city or township political boundaries. The
resources of these geographical regions are often referred
to as fragile, because if misused or mismanaged their resources
can become non-renewable and therefore lost forever. Not
only are these areas critical now, but there is high demand
for their use. It is the responsibility of some govern-
mental entity to provide the services which are dependent
on the resource, such as water and recreation, and at the
same time to preserve these resources which are vitally
linked to the biological and economic survival of future
generations. This responsibility is beyond the geographic
scope of municipal government.

Another factor to consider is that the contemporary life
of high energy use, "advanced" technology, population con-
centrations and affluence has created demands for land use on
a much larger scale than before.

Page 27.

The resultant large scale developments affect a much larger
number of people and greater geographical areas than encom-
passed in a town or even a county. Examples of such large
scale developments are highways, airports, large recreational
facilities, utilities, and industries whose costs - benefit
analyses require consideration of a large number of variables
and considerations and whose order of magnitude far trans-
cends local capabilities, facilities, or vision.

B. FACTORS DETERMINING JURISDICTION

Recognizing the inadequacy of present municipal boundaries
for land use guidance purposes does not automatically deter-
mine the areas and activities the state may wish to extend
its control over. Variables which will influence the choice
of jurisdiction in a particular state are:

- the social framework, sets of beliefs and traditions
associated with the state. For example, the New
England states strongly believe in local control. In
some rural areas, as in Maine, where local zoning.
ordinances are repeatedly rejected by the voters, even
local municipal control is interpreted as too far
removed from sialf-determination;
- the uniqueness of certain geographical features of the
state such as shorelands, mountain tops, wildlands;
- the heavy dependence on a particular economy based
on a major resource -.marine, forest or agricultural
land;
- the experience in recent years of heavy demand for use
of resources in the state;
- the general level of alarm over the irreversible con-
sequences of the uses of some resources on the other
resources and citizens in the state.

C. TYPES OF JURISDICTIONS THAT HAVE EMER GED

The jurisdictions under current state land use guidance can
be categorized into five types: critical areas, regional
impact developments, large scale developments, uncontrolled
areas, or where there is no local authority, and statewide
comprehensive system combining all of the above. It should
be noted that a larger-than-municipal jurisdiction does not
automatically imply the administration of the whole system
by the state. The allocation of the various functions is
varied among the states and is, infact, a key issue in design-
ing state land use guidance systems, to be discussed in the
next chapter.

Page 28.

1. Critical Areas

Critical areas are lands in certain regions whose
uncontrolled development poses a threat to the public
health, welfare, and general safety. There are two
types of critical areas: ones is "critical environ-
mental areas" and the other might be called "critical
development areas".

The best definition of critical environmental areas
was in a Virginia study:

"A critical environmental areas is any portion
of land, regardless of size, which because of
location, physical features, historical character,
natural productive capability, scenic significance
or unique flora or fauna, contributes to the
economic, aesthetic, or cultural well-being of
individuals or society, and which because of these
peculiar qualities in in limited supply." (42)

Note that the controls over critical environmental areas
are based primarily on the nature of the land rather
than -the type of developmenT -proposed.

The management of "critical environmental areas" has
proven the most popular form of state land use control.
Sometimes, concern over a special area initiates a state-
wide concern. Areas which might be included in this
designation are:
Shorelands (within specified # of feet
Coast lines of highwater)
Flood plains
Watersheds
Wetlands
Agriculture or forest lands
Wilderness Areas
Wildlife Habitat
Historic Areas
Areas with.Special Physical Assets

(42) Critical Environmental Areas; Virginia 1972

Page' 29.'

Critical development areas would include areas around
major facilities which, because of their special use
tend to draw development to the area. It is sometimes
deemed desirable to regulate the land use activities
that will occur to prevent undesirable strip development.
Examples of such areas include:

Highway Interchanges
Airport Regions
Power Plant Vicinity
Vicinity of Major Parks
Adjoining areas to Large Shopping Malls
Areas near major Recreational Resorts

What constitutes a critical area for a particular state
could be influenced by the goals and policies of that
state. For example, if a goal of the state is to pre-
serve agricultural land, then its policy would dictate
that state declare prime agricultural lands as critical
areas (where development would be limited).

States which seek to control such critical areas usually
pass special legislation to set up the regulatory system.
The statutes will generally require that the state
agency spell out the reasons for designation of a partic-
ular area, and the dangers that might result from un-
controlled or inadequate development. The state agency
then delineates the boundaries or definition of an area
and sets up standards for activities permitted therein.
Further implementation might be up to lower levels of
government with varying degrees of state supervision.
In Maine the Shoreland Zoning Law is an example of
this type of legislation. The state sets up guidelines
but allows local municipalities to administer the controls.

A limitation of this jurisdiction is indicated by a
reservation included in the Florida Land Management Act.
Pollowing the ALI Code almost to the letter, the Florida
legislature delineated critical areas, but apparently
got cold feet. Fearing that development would be
strangled, they enacted a measure specifying that not
more than 5 percent of the land could be so designated.
The workability of this limitation is open to question;
and its effects will have to be watched-as the law is
put into practice.

Page 30.

2.. Developments-of Regional Impact

In contrast to critical areasp which is based on the
type of land in question, the state's jurisdiction
over regional or large-scale developments covers activ-
ities. Development of regional significance provide
benefit to an area beyond the boundaries of a single
goverment; but they may have implications for a con-
siderably larger area. The following types of develop-
merit fall into this category-

developments by a governmental agency other than
the local government. This would include develop-
ments which use state or federal grant monies.
The point is that "state or federal grant programs
for the aid of development are almost always insti-
tuted for the purpose of achieving goals of a
broader community than the residents of a particular
government. It-is important to insure that the
local governments do not allow their own constit-
uents' fears of adverse effects of development to
outweigh completely the interests of a broader
section of society that might be entitled to great-
er concern"; (43)
developments which will be used for charitable pur-
poses, including religious or educational, and which
are intended to serve a substantial number or people
outside of the local jurisdiction.
developments by a public utility to provide services
for a large area-i

Examples: airports
recreational facilities
electrical generating facilities
hospitals
industrial plants (When not large scale)
office parks
mining operations
oil storage facilities
port facilities
residential development
post secondary education
shopping centers
power.plant siting

Generally, the state land planning agency would adopt
definite rules, guidelines, and factors to be consider-
ed in order to determine if a particular development
falls within this category. This provision does bring
under regulation activities which have previously been
left out of local zoning ordinances. Not too many states,

(43) ALI Code, note to art 7, 1 303

Page 31.

so far, have specifically spelled out this category.
Florida and the proposed Washington law do include
it.

This jurisdiction could conceivably fall between critical
areas and large scale developments (next category) or
could be considered under either framework.

Large Scale Developments of State-wide Significance

The jurisdiction of large-scale developments is over
activity; but in actuality it encompasses the geographic
area of the whole state a s onomous term is develop-
ment of state-wide si4i icance.) Definitions 37 a-
large scale development an e factor to be considered
before granting a permit for such development may be
spelled out either by the statute or by the agency
responsible for land use. Certainly a large scale
development would be one which could have major state
or regional benefit or harm. Factors which ALI recommends
be considered in defining what constitutes large scale
developments include:

- the size of the site to be occupied;
- the number of people likely to be present;
- the potential for creating environmental problems
such as air, water, and noise pollution;
- the likelihood of additional or subsidiary develop-
ment being generated.

The problem is, as Russell Train put it, "An alarming
number of large scale developments are occuring where
there is no regulatory authority." Because the pressure
for, and the irreversible consequences of, such develop-
ment severely limits future options for the state, it
might become imperative to set up control over large
scale developments before a statewide land use manage-
ment system is adopted. Maine is often cited for being
the first to use such an approac@h. The Site Location
Law both defines and sets up criteria by which to judge
applications for large scale development.

4. Areas of the State Without Land Use Control

There are areas over which the state assumes controls,
either because there is no adequatE: local authority or
because of the potential adverse effects created by
extreme development pressures.

The powers-of the state may be terminated, in such areas,
when the local government takes over its function in an

Page 32.

approved manner, or when in the case of unorganized
areas, a local government is formed. The state of
Colorado promulgated regulations in the municipalities
and counties where the 1976 Olympics were to take
place and wher-ee local land resource controls were
absent. -The Colorado Land Use Commission was empowered
to do this until acceptable regulations were adopted
locally. Oregon also enables the state to prepare
plans and enforce zoning on-all areas not subject to
local.regulations. Maine's Land Use Regulation Commission
is cited as an example of a total land use guidance
system set up for its vast unorganized territory (50%
of state area), mostly in private ownership, where there
is no local government, but plenty of potential for
pri vate development.

5. Statewide

The jurisdiction of a statewide comprehensive land use
system would obviously extend over the whole state
and more than likely include one or more or all of the
above categories of jurisdiction. Although the jurisdic-
tion might be statewide, all the powers of administration
are not necessarily left in the state's hands. One
advantage to this system would be the elimination of the
need to classify and define jurisdictions.

Statewide programs are usually characterized by the
existence of a comprehensive plan. Hawaii's 1961 Land
Use Law has been the noted pioneer in the field. It
has statewide zoning; but zoning is not necessarily a
prerequisite for a statewide system. There are state-
wide systems evolving in Vermont, Puerto Rico, Washington,
Colorado, Oregon, and Florida. Many other states have
active blue-ribbon committees studying the advisability
of setting up a coordinated, statewide system.

Page 33.

V. ISSUES TO CONSIDER IN DESIGNING THE SYSTEM

"Planning is meaningless at all levels without
adequate control and implementation of powers...
land use policy can only be effective when
developed and backed by --,ame level of government
as is responsible for the implementation." (44)

"Controls should be in existence but there has
been no desire for responsibilities to F with
authority to establish such controls," 4@)

Once the limitations of land use control becomes evident, the
next step is to design a system of land use guidance which:

- covers areas and activities of greater than local
significance;
- most effectively coordinates the policies, plans,
regulations, permit system and enforcement;
- is in line with the attitudes and traditions of
the citizens;
- assures the support of the citizens; and
- is administratively manageable and enforceable.

To achieve such a system requires a precarious balancing between
values of efficiency, local control, participatory democracy,
and checks and balance-c' of power. The State, its citizens,
legislators, and Governor will have to make some decisions on
the following key issues:

- Should the various components in the system be combined
into one agency, or is it advisable to separate them?
- Which functions should be performed by the state, the
regional, and the local levels of government?
- What is the best means of assuring citizen participation?
- What should be the make-up of the Commission or Board
assigned to administer the system?
- What agency of state government should be responsible?

Each state has to find its own approach according to the values
acceptable to its constituency.

As Governor Terry Sanford of North Carolina quotes Supreme
Court Justice Louis D. Brandeis:

IlIt is one of the happy incidents of the federal
system that a single courageous state may, if its
citizens choose, serve as a laboratory and try
novel social and economic experiments without risk
to the rest of the country." (46)

(44) New Mexico Land Use Study
(45) Arkansas Study
(46) Sanford, Terry, Storm over the States, p. 33 Page 34.

A. SEPARATION OF MAJOR COMPONENTS

The question of separation of function is an issue that
concerns the distribution of powers and duties among levels
of governments of among agencies on the state level.

Should policy making, planning, standard setting, and ermit
@ranting (the last two often referred to as management@ be
in one agency; or should the functions be separated among
agencies or divisions? If separation is desirable, then
the argument can be whether the function should be spread
out on one level or assigned to various lower levels of
government--regional, local. .

The review of the literature indicates that this problem
has not really been explored in any great depth. This is
perhaps because it is a new one facing the states. David
Heeter (see bibliography) does cite recommendations based
on the local experience of zoning administration. The
recommendations are for local-level land use controls,
although the concepts may be applicable to the state level.
All four reports reviewed by Heeter (Douglass Commission,
ASPO for Connecticut, ACIR, and ALI) recommend that the
present day functions of the Planning Commission or Board,
Building Inspector, and Board of Appeals be combined into
one agency, which would be responsible for all local
ordinances. The Douglass Commission held that the original
separation of administrative, judicial, and legislative
functions results in a time-consuming maze and in uncoord-
inated, possibly contradictory decisions. In this analysis,
of local land use controls, state agencies are offered
as a review (and check) on local agencies.

The question revolves around whether or not policy planning
functions should be separated from regulatory and permit
functions. There are about an equal number of arguments
on each side.

Proponents of separation of functions give some of the
following arguments:

"Policy making and policy implementation functions
should be separated to encourage clearly defined
policies embodied in a formal planning procedure
and less polic evolved through a series of con-
frontations.11 T47)

The concern is that an agency or commission might not only
bend over backwards for an applicant; but that under the

(47) Richard Chapin, Chairman of the Washington Land Planning
Commission in "The Change in Legislative Climate", State
Government, Volume 46, 1973

Page 35.

same pressures it might change the rules and standards,
and thus might doubly jeopardize the intent of the law.

J. Jackson Walter, regarding the Environmental Board in
Vermont:

"It may be somewhat unrealistic to expect the
board to act on one hand as a planning group
charged with the responsibility of formulat-
ing a statewide blue print and on the other
hand act as a disinterested judge and jury on
permit applications." (4@5)

People who believe that the functions should be adminis-
tratively combined in one agency include Clyde Fisher,
Chief of Environmental Planning Coordination, Northeast
Utilities , Hartford, Connecticut, who questions the ad-
visability of separating policy enforcement, "When the
enforcement experience provides a valuable grasp of policy
implications that cannot be obtained in any other way. A
huge body of regulatory agency experiOnce suggests that
such separation is undesirable." @49)

Michigan's Governor's Special Commission on Land Use:

"To achieve desired goals of land management,'
such agency should be imparted with both
planninE and management capability and author-
ity. Planning without implementation will not
bring about a purposeful program, nor will
management without planning." (50)

Then there is the non-answer or "it doesn't make a differ-
ence" argument which may be just as valid-.

"From Wisconsin experience it is not clear that
either the concentrated or dispersed organization
of land planning functions is -the key to a success-
ful program. Much more important is the active
strong support of political and administrative
leaders." (51)

There is no clear answer. Although care must be taken
to differentiate between statewide land use control and
local zoning ordinances,' the 50 year history of-local
zoning experience should provide some answers. Perhaps
the retognition of weakness in either separation or

(48) Maine Law Review, Volume 23, (1-971)

(49) Fisher, Jr., Clyde 0., "A Giant Step Forward, But Insufficient
and Already Dated," Land Use Control Annual, ASPO, (1971) p. 61
(50) "Governor's Special Commission on Land Use Report" (Michigan
1972) p. 10
(51) Correspondence from Roger L. Schrantz, Deputy Director of State
Bureau of Planning and Budget, November 21, 1973.

combination of all functions could lead to compromise
alternatives. Some of these might include a policy super-
visory committee (perhaps in 1-egislature), firm guidelines
spelled out in statutes (as in Vermont), and stiff require-
ments for changing standards.

The decisions on this issue will be important in determin-
ing who will do the planning for the various jurisdictions,
who will grant the permits and conditions for development,
and who will review or adjudicate appealed decisions.

B. LOCATION OF AUTHORITY

"Jurisdiction to prescribe rules for land use should
coincide with the territory substantially affected by
the prescription." (52)

The decisions regarding the allocation of functions-among
the different levels of government present a most delicate
and political problem. The administrative value of stream-
lining authority, or even concentrating power at one level,
is severely limited by our belief in home rule, decentralized
power, and checks and balances. On the other hand, for the
sake of reason and efficiency, shouldn't the governmental
level of land use control coincide as much as possible with
the geographical boundaries of affected human and natural
resources? There are advantages and disadvantages, effici-
ences and inefficiencies on each level.

1. Local Level

a. Advantages

"Most decisions on land use developfiient do not
have an extra-municipal impact, as anyone who
has nodded through the interminable agenda of
boards or appeal and planning commissions
knows. Machinery is cryin for overhaul but
should not be abandoned." @53)

Local government is the closest to local problems and
hence the most responsive to local needs. Partici-
patory democracy is much easier to accomplish on the
local level. Babcock believes that it is the convic-
tion of local decision-maker that he is more competent
to decide these questions than his professional count-
erpart in Albany, Columbus, or Sacramento.(54) It is
probably easier to enforce, inspect, and prosecute on

(52) New York State, Planning Revision Study, Document No. 4, p. 2
(53) Babcock, Ric*hard, "Comments on Model Land Development Codes,"
Urban Law Annual, 1972
(54) Babcock, Richard, The Zoning Game, p. 19

Page 37.

the local level.

b. Disadvantages or Weaknesses on the Local Level:

Local zoning ordinances have often become ineffective
with the easy passage of infinite amendments.
Local,
heavy, special interest politics might be one reason.
A more likely situation however, is that local govern-
ments may often lack the resources required to draw
up and effectively administer their zoning ordinances.

Local communities have tended to use zoning as a means
of maximizing local interests. Local authorities tend
to exclude such facilities as garbage disposal, correc-
tional institutions, and low income housing, viewing
them as undesirable from the local viewpoint. The
urge for property tax revenue rises to the top of all
considerations in decision-making.

Local governments are also unable to take a compre-
hensive view of the state and its goals (myopia, for
short).

"The error in zoning today is not that the
decision-making is exclusively local; the
flaw is that the criteria for decision-
making are exclusively local, even when
the interests affected are far more com-
prehensive." (55)

2. Intermediate Level

In recent years the tension between the traditions of home
rule and the recognition of the large scale impact of
land use decisions has led to a search for an intermediate
level of government to regulate the use of those resources
and services which most nearly coincide with the geograph-
ical boundaries of affected human and natural resources.

Problems emerge from each attempted solution. The munici-
palities are too limited in scope; the state is often
seen as too far removed. The problem with the "somewhere
in between" is that the affected geographical boundaries
vary with the type of resource being used. For example,
watersheds are different from air quality regions or
service areas for transportation purposes.

The result has been the c reation of veritable maze of
intermediate levels of government and'regional agencies
for each function. Examples are the Water and Transpor-
tation Districts, Air Quality Regions, Law Enforcement

(55) Babcock, Zonina Game, p. 20

Page 38.

Districts, and Regional Planning Districts, and the
traditional counties to name a few. The oldest inter-
mediate level of government is the county.

a. County

County Government is a viable choice for administering
selected aspects of land use guidance in some states.
Legally it is a "political subdivision of the states
established for the more convenient administration
of Government." (56)

The effectiveness of county government depends very
much on historical tradition and the existin county
lines (whether or not they fit today's needs5. County
governments in the New England states seem extra-
ordinarily out of line with the requirements for land
use guidance. Their governmental functions are often
minimal: Connecticut has abolished theirs, entirely.
In Hawaii, Wisconsin, Minnesota, and Oregon, they
are in a position to assume land use functions. Counties
do have elected officials and powers to tax. Perhaps
with boundaries re-drawn and strengthened support
from the state or-federal government, they could be
called into service for more permit-granting or
enforcement functions.

b. Regional and Metropolitan Agencies

Regional or metropolitan agencies are administrative
districts which may overlap or criss-cross the present
jurisdictions of local, county, or even state govern-
ments. Examples are metropolitan governments, region-
al planning agencies and river basin agencies. Not
wishing to waste money by allowing redundant dupli-
cation of services, Federal policies have created
much of the new regionalism. Federal grants for
Highways, Housing, and Sewerage treatment construction
require regional cooperation in planning. This was
minimally satisfied by requiring the review by regional
agencies of applications for Federal funds (the so
called A-95 review procedure).

Many states have used the geographic districts to
form so-called Regional Planning Districts.

(56) Ballentine Law Dictionary, 1969

Page 39.

(1) ArELments For

Arguments made for these regional and metropolitan
agencies or Commissions include:

- they fulfill the need for a coordinating agency
which coincides with services and recipients;
- their composition of local officials offers a
forum for airing grievances;
- they are in a position to be an "input conduit"
from local citizens; and
- they could serve as a coordinating agency (go-
between for) state, local and federal governments.

Philip Savage in "Designing a State Land Use Program"
points out that the "Regional Planning Agencies are
better able than the states to respond to sectional
peculiarities;" (57) They could, for example, be
based on a river basin approach, which would be con-
ducive to coordinating water and land management'
issues. He recommends project planning review but
stops short of giving permit function to regional
agencies.
(2) Arguments AZainst

Criticisms arise from weakness of the agencies them-
selves, and from the lack of relationships with other
levels of government:

- most of these regional commissions or councils of
government have no regulatory power or authority;
their role is only advisory;
I'Metropolitanism, in its most innocuous form-
regional planning agencies or councils of
government - is on the balance an exercise
in futility, a "talk-talk" role that is
bound to fail. Planning without the attri-
butes of sovereignty, the power to tax, to
regulate and to condemn is nothing." (58)

- the officials of these regional commissions are
drawn from its local constituents. Consequently
while they may air grievances, everyone is looking
out for his parochial interest;
- the functions of these agencies are not clearly
defined;
- they are not adequately funded to do a good job.
Richard RuBino, in an article on Florida's new

(57) Savage, Philip, "Designing a State Land Use Program", State
Government Summer, 1973

(58) Babcock, "Model Land Development Code", Urban Land Annual,
1972

Page 40.

legislation, reflects on the uncertain state of
affairs by his recommendation: "If you throw
the dog a bone, you better let him chew on it;"
i.e. give it power and money.

To summarize the present situation, the various
regional districts seem to criss-cross and overlap
existing county lines with various jurisdictions.
The power gets diffused and "who, me, account-
ability?" results.

3. State Level

In our Federal form of government, state governments
uniformly exist between local and Federal jurisdict-
ions. Amendment 10 of the U. S. Constitution, states:

"The powers not delegated to the U. S.
by the Constitution, nor prohibited
by it for the states, are reserved to
the states respectively, or to the
people."

Originally, the powers to regulate land use resided.
in the states. In the last 50 years, however, the
states have delegated their control over land use
to local.governments. The pendulum appears to be
swinging back.

One reason cited for the states' resumption of their
role in land use guidance has been the much-discussed
National Land Use Planning Act, first proposed in
1971, but not yet passed. This is a rather super-
ficial reason, because the act itself is a response
to the conditions which require the reassertion of
state authority.

(59) RuBino, Richard, States Role in Reference Management,
1972.

Page 41.

Emerging from the need to consider the impact
of resource use upon the human and natural environ-
ment is a series of interests. Land use with greater
than local significance might have regional impact;
other developments might have state-level signifi-
cance; and some land uses might have Federal signifi-
cance.

NA2.

TOWNSHIP REGION STATE COUNTRY

Jurisdictions listed above in Chapter IV all qualify
as having greater than local impact. It should be
fairly obvious by now that our social framework
limits us from offering the simple solution, "all
land use guidance activities in jurisdictions of
greater than local impact should be assigned to the
state." It would make a clean model in the abstract
but it just won't work.

There are arguments, pro and con, for state level land
use controls, just as for the other levels:

Arguments For

- The state has a responsibility to guard unique
resources so that it can guarantee these resources
for the economic and recreational needs of present
and future populations. Most of these resources
fall beyond municipal boundaries. They are often the
"critical areas", such as shorelands, estuaries,
mountains, wildlife habitats and vast forest, marine
and agricultural resources.

Page 42.

- The state is in a better position to resolve the
constant conflict between development and environ-
ment. Local interests are presently pretty much
based on the concern for local revenue. Local
officials tend to give more weight to the property
tax advantage accruing from potential development
than to any other concerns such as community
stability, aesthetics or ecology;
- The state is also in a position to transcend local
politics, and thus could strengthen the effective-
ness of local control. It can offer objective cri-
teria and, more importantly, a back-up authority
for badgered local officials to "hang their hat on."
This need has been noted especially in cases of
exclusionary zoning, where local predjudice is too
strong and a higher level of authority needs to
assert itself.
- The state as the seat of all residual powers is
in better position to coordinate the overlapping
activities of local governments and
- usually has broader based taxing power to secure
the kind of financial resources which are required
by a well planned and implemented land use guidance
system.

Arguments Against

There are limitations to the State assuming all of
the powers and duties of land use guidance:

The most serious limitation is the tradition of
"home-rule", for individual citizens to have an
effective say in the determination of those land
use policies and decisions which are intricately
related to their individual destiny. As Wesley
Kvansten, a planner in Oregon, expressed it - "land
use is an absolute determinant of quality of life;
everything (except sex) is based on it.";
It is administratively impossible.for the state
government to effectively reach every nook and
cranny of the state area. It is inefficient for
the administrators from the state capital to travel
all over in order to hold hearings and enforce reg-
ulations in the field;
Although the states' would be assuring new powers
with the extra local land use responsibilities,
relatively speaking, local governments could con-
ceivably be somewhat weakened as a result.

Page 43.

4. The Federal-Level

The programs of the Federal Government will be analyzed
in a later chapter, but this examination of the relative
allocation of power among levels of government is not
complete without a glance at the National Government.

Since such resources as air, rivers, and mountains over-
lap state boundaries, does it follow that we should
have a Federal land use guidance system? That is not
what is emerging. There is a general climate today
of new Federalism, giving a more active voice to local
and state governments in setting policy and initiating
new programs. There are a number of causes, such as
disillusionment and promises unkept; but the chief reason
is that the Federal Government is too far removed from
local problems.

The proposed National Land Use Policy Act encourages
interstate and regional cooperation but places primary
responsibility back on the states. The proposed role
of the Federal government is only to assure and encouragE
offering coordination and financial assistance. Addition-
ally, the NLUPA, especially with a sanction provision,
would control the possible competitive advantage (or
disadvantage) accruing to a state with no regulations.

D. CITIZEN PARTICIPATION

"The system remains the ever elusive target. But
the system is neutral and it will ultimately be
most effectively utilized not by the most strident
but by the most thoughtful and best prepared." (60)

Designing a system without considering the avenues of effec-
tive citizen participation is likely to be an exercise in
futility

Citizen participation could be considered a component of
land use guidance systems but it is better described as a
catalyst in the dynamic interaction between the social
framework and the best intentions of state authorities.

The decisions that are included in the components of a land
use guidance system represent the allocation of resources
based on social values and goals. It is fundamental to our
participatory democracy that government be "of the people"
and therefore, that decisions be based on their wishes and
values.

(60) Salmon, Thomas, Vermont: "Public support for Land Use
Controls, State Government, Summer 1973, p. 200

Page 44.

Who, if not the people, should determine where the public
interest lies? Additionally, pragmatic considerations re-
quire the participation of present and potential owners of
the land to assure their cooperation in implementing an
effective land Use guidance system.

"Policy-making and decision-making systems which
do not include substantial participation by
private citizens and groups run the double risk
of loss of expertise public confidence.11 (61)

1. Definition-

The trouble withdefining citizen participation is that
it is a qualitative and quantitative term. It depends
on who is defining it. One man's citizen participation
may be another man's stage effect. Probably all would
agree that it is a means of actively involving citizens
in the decision making process of government. The issue
is whether or not the process effectively does what it
sets out to do.

Citizen participation is often given*lip service and no
more. Some bureaucrats consider it at best 11sugar coating",
or worse, "a pain-in the neck". Perhaps the reason for
the derision is that the techniques to achieve public -
involvement have@so far eluded most professional planners
and government.officials. For instance, citizen partici-
pation is often considered assured by a notice of a
piablic hearing in the fine print, classified section of
the daily newspaper. If citizens don.1t turn out or make
"relevant" comments, they are labeled "uninformed" or
"apathetic".

Effective citizen-involvement will depend on the sen-
sitive use of many techniques, none of which is suffic-,
lent by itself. the methods used need to be'carefully
tailored to the stage of the process, the cultural,
traditionaly, and political climate and the sheer geo-
graphic size and population distribution of the state.
In short, it will not happen automatically, even if
citizens want toparticipate. It will take an effort,
i.e., money and staff, to continually,involve the public
to.motivate them, to show them how, and to-make them
feel that their participation counts.,
Diagram #1 (on reverse page) shows the various techniques
of channelling 11input'"from the General Public to the
Decision Making Body.

(61) Massachusetts report, Citizen Task Forces on Environmental
Reorg.

Page 45.

Governor or
Legislature

representin Task Force to
Study Problem -P

Public
representatives Decision Making
Board of
''opinion surveys Commission

Workshop discussion

Information Professional
Staff

Citizen Publications
Organizations 0

send representative N
d Advisory Board
send re Or
gittee
Special
Interests

Clubs & send renresent2tiup-
Groups
C
L .6

Diagram #1

J where
ames Wilkinsong Director of Forestry in Vermont,
a model.system of citizen involvement has been worked-
out, lists three basic,stages of public involvement:
First, develop a public understanding of a problem
and the need for action; second, provide opportunities
for taking part in the action; third, earn the support
of the people for the adopted plan. (62)

2. Techniques of Citizen Involvement
in many states various techniques are currently being
developed and utilized with varying degrees of success.
As more experience is gained,.and as the pressure of
involvement is maintained, newer and more effective
methods will surely be developed. The enclosed,diagram
and the following brief description will illustrate
the methods used and their inter-relationships.
a. Task Force io,StudV the Problem

One basic mechanism is the use of a Task Force to
study the problem. Generally this involves appoint-
ments by the Governor or legislature of a group
of "Prominent" citizens to look into a problem and
make recommendations. This is the first stage of
developing a public understanding and is a tech-
nique often used to attack a new problem and estab-
lish a new program., This first committee can also
use.the other techniques.s1hown on the illustration.

States have established and utilized task forces in
varying degrees. Massachusetts has just completed
publishing th' massive work of a 200 member citizen
task force, whose assignment was to "develop the
necessary background material required to justify
..any changes in the state's present structure, as it
relates to environmental affairs." In Michigan
the Governor appointed a special commission on Land
Use, consisting of members "selected by virtue of
their outstanding performance in areas related to
landdevelopment, management, and stewardship", and
assigned.staff to support, administer, and coordinate
activities of the commission.

Florida created an "Environmental Land Management
Study Committee (ELMS,, at the soon get to be known,
anacronyms area sine qua non@ which not only
drew up the Florida Land Use Bill but had statutory
authorization@to stay in existence two years beyond
the passage of the bill in order to assure its effect-
iveness and to make improvements upon it. This comm-
ittee-consisted of 15 members, gubernatorial appolfftees..

(62) Wilkinson, James E. Jr., "People Power in Land Use Planning"
unpublished remarks, 1973

Page 46.

from various "interests", plus State Legisl 'ature
appointments. A staff of 10, including consultantsp
was assigned to the committee.

Some states approach this phase of initiating new land
use programs by establishing Executive or Legislative
Committees; or, as in New Jersey, most of the committee
is composed of 10 government agency heads, and three
appointed citizens, one of whom serves as chariman.
This does afford a lesser degree of general public
participation; but perhaps the advantage of greater
efficiency and less involvement can be offset by
more public input via well-planned public meetings.

The shortcomings of the Task Force system is amusingly
illustrated in an article by two staffers assigned
to the State Land Planning Commission in the State
of Washington. They cite problems arising from the
wide variety of people, (eight legislators from
both parties, mostly from one end of the state; and
eleven laymen from all walks of life including a farmer,
the Dean of the Law School and a representative of
The League of Women Voters@,the lack of permanent staff
and the limited budget. Other problems included
having to get together on weekends, spending months
arriving at a common terminology, and forming little
internal political factions. All of these obstacles
had to be surmounted before they could make recommen-
dations to the next legislative session on all aspects
of land use planning. Two staff people were finally
assigned to the committee and they did meet their
deadline within 6 hours for filing legislation.

All is well that ends well. The monumental bill,
155 pages, c'ouldn't have been thoroughly studied
by anyone; nevertheless, the first hearing produced
a remarkable list of supporters. The moral of the
story, according to authors McConnell and Robertson,
is.that adequate staff has to be provided to these
committees; and all.the other techniques of involvment
(listed below) have to go along with the appointment of
the commission. (63)

b. Boards or-Commissions

A system of public guidance of land use will require
some body of decision-makers., On the state level
this may be a land use commission or aboard of
natural resources or environmental protection. The
appointments to the decision-making body attached to

(63) McConnel, R. L. , & John L.. Robertson , "An Ev_alua'tion.. of@
the Commission Process", State Government, Summer 1973

Page 47,

this agency can be considered citizen participation
at the highest level. This is an excellent opportunity
to obtain broad representation from people knowledgeable
in the various fields involved and from the various
geographical regions of the state.

c. Citizen Advisory Groups

In addition to direct appointment to govermment commissions
citizens may be asked to serve on citizen advisory committees.
This might be a larger committee of citizens composed of
representatives of interested organizations, clubs, groups.
This group can be a conduit which carries public opinion
from the general public to the decision-making body. They
may review and criticize draft documents, serve as a
sounding board and as a forum for the exchange of ideas
among groups, the staff, and the decision-making body.

The American Law Institute Code recommends state and
regional advisory committees, appointed by the Governor,
with a membership no larger than eleven.

The commissions can exist on many levels, on an,ad hoc or
a permanent basis. For instance, Oregon Law
requires a State Citizen Involvement Advisory Committee,
which must establish and review plans for citizen involve-
ment that were mandatorily submitted by every county as
part of their comprehensive plan. (64)

The "Citizen Advisory Committee" is prone for a major
pitfall: soliciting public input, creating an illusion
of participation,:but then not making valid use of it.
Additionally, the group may be subverted to being a
rubber stamp for the decision making body; or more
benevolently, an advisory board may be appointed for
appearance sake and then never consulted. If this
type of situation were allowed, as Wilkinson of Vermont
puts it, "It would be a sham and a 'fraud with credibility
gurgling down the drain". (65) The original purpose is
destroyed. The point is that if the intention of
involving citizens is genuine, then citizens feel rewarded
and that they have participated, but if they feel used,
they will either turn cynical, apathetic, or they will
vent their frustration in opposition.

d. Public Hearing

On a wider scale of citizen involvement, public hearings
are the most universally used procedure. A public hearing
is a minimal legal requirement of due process built into

(64) Oregon, S.B. 100 635, 1973
(65) Wilkinson, People Power in Land Use Planning

Page 48.

every local zoning ordinance and many state statutes,
and may be required at any and all stages of the pro-
cess.

To illustrate what is usually meant by a public hearing,
let us assume that an agency is required by statute
to hold a public hearing on establishing or amending
boundaries and standards/or districts. A notice of
hearing is sent to the owners directly affected by the
decision and is published in the classified section of
the newspaper, hopefully reaching all interested parties.
The means of sending the-notice, the number of days ahead
of hearing, and the number of times such notice must
appear are spelled out by the statute or administrative
code of a state. The appropriate commission then holds
a public meeting where the staff either hands out the
drawn up standards, illustrates them by map, or explains
then to the public and the decision making body-ususally
all three. The decision making body then sits to hear
opinions and facts from "the public". A record of the
hearing is usually kept, and a certain number of days
are allowed for the submission of written comments by
the public. The Commission then deliberates and passes
0.n the proposed boundaries and standards.

This is the outline. What happens at the hearings,
how much real input the public has, and the amount of
controversy, all depend, of course, not only upon the
interests involved but on the preparation of the public
for the public meeting. Public hearings are not sufficient
by themselves. Going through the bare minimum require-
ments could be 11 a sham and a fraud with credibility
gurgling down the drain." An increasing problem is the
complexity.and technicality of these issues considered
in all environmental or land use hearings. The layman
is easily "snowed under" by technical experts, leaving
the field open primarily to the legal and technical
experts hired by large special interests. There are a
number of supplementary steps that can be taken to over-
come this obstacle and generally raise the level of citizen
participation.

Prerequisites for an Effective Public Hearing

Requirements for an effective public hearing include
a notification system which reaches the maximum number
of peopl-e-irn-enough time to allow the public to inform
themselves on what is expected at the hearing. Second,
the public needs to be well-informed, to be able to give
relevant, meaningful information and opinions. Making
the document to be discussed available ahead of time,
having a series of newspaper articles, sponsoring group
discussions and speaking engagements, giving media inter-
views - all these steps prepare citizens for better
involvement at public hearings.

Pnain LQ

As Dr. Madge Ertel states, in a study on citizen partic-
ipation in Massachusetts, the kind of answers at public
hearings depends heavily on the questions:

"The major conclusion is that the usefulness
of public meetings depends heavily on the
questions asked of the public,....public
response is generally effective when the
public has some reasonable concrete pro-
posals to which it can respond and that
will aid members of the ublic in organiz-
Ing their thoughts." (66Y

It is becoming apparent that the kind of participation
at a hearing very much depends on the attempts to
involve the public. There is nothing more-inhibiting
to public participation than being faced with a neatly
bound, foot-thick document at the public hearing. This
looks to the public as a 11t7ait accomplis," convincing
the citizens that any suggestions they could make would
not be able to unbind the document.

Holding public di scussion in stages-beginning with
seeking help with problem definitions, alternate approaches
to solutions,' at the goals and policies stage, following
in succession with a review of rough draft policies and
at least two hearings on the comprehensive plan, and
culminating in the delineation of actual districts or
zones-will prepare for better input at the hearings
and will help to keep the public informed and motivated.

e. Public Opinion Surveys

Many states are engaged in conducting public opinion
surveys, especially at the goal-setting stage of the
process.

Great care needs to be taken to make this technique
effective. Obviously, the surveyed population should
be representative; and most importantly, the questions
should be phrased to avoid "loading the deck" and to
provide meaningful choices. Colorado's survey asked
people to underline their choice of policy, regarding
population, industrial and economic growth by indicating
whether they want to "encourage", "discourage", or
"neither" on each variable.

This technique is useful as a direct means of measuring
public sentiment, even if officials or politicians have
a hunch this will serve officially to confirm what may
already be suspected. Having involved the public this
way will be a help in passing and promoting state plan-
ning policies.

(66) "Public Participation in the formulation of a'Plan for
Management of Solid Waste Disposal... 11, Massachusetts
Institute for Man and His Environment, March 1973.

Page 50.

f. Public Education

More encompassing than other approaches is basic public
education. This umbrella of techniques is limited only
by the finances and imagination available. Some states
have used a series of workshops with representative
groups, with surveys filled in at the workshop. Others
are working with the media, producing film or slide
presentations to show throughout the state (Hawaii,
Connecticut, Vermont, Oregon). Others, (Deleware,
Vermont) are experimenting with tabloid newspapers pub-
lished as an insert. Public education is certainly a
mysterious art: ,The effectiveness of each technique
never can be assured. For instance, the Massachusetts
study finds it necessary to point out that for group
discussion a "moderator should be chosen on the basis
of ability to direct and stimulate discussions." Quest-
ions have to be formulated so that all alternatives
can be analyzed. In summary, it is obvious that to
further the goal.of public education, not only are the
best intentions needed,.but the best talents should be
available to the state.

To indicate how the various techniques discussed above
may be combined it is useful to look at Vermont's approach.
Vermont has developed a model system in the planning and
the permit phases of the system, which includes just
about all the techniques mentioned here. As Governor
Salmon states it:

"Vermont relies most heavily not upon professionsl
input and administration but upon its tradition
of citizen-centered government. I will concede
the shortcomings of this concept but I am per-
suaded that, for us, it reflects the cherished
tradition that people should be intimately in-
volved in the governmental process." (67)

It should be added that the Ford Foundation made a major
grant ($100,000) to the Vermont Natural Resources Council,
a private organization, to work out techniques and strat-
egies to use in encouraging citizen involvement.

In the Planning phase, Vermont:

- conducted a comprehensive public opinion surv2Z to
ascertain the degree of control Vermonters consider
appropriate. The response was very positive... 51%
of the sample was in favor of statewide'zoning.

(67) Governor Thomas Salmon, "Public Support for Land Use Controls",
State Govermment, Summer 1973.

Page 51.

held a series of eight public hearings on goals
and policies--2,000 people attended.
-'Governor Davis appointed a Task Force for each
environmental district composed of prominenf-citizens
to make recommendations.
- in the political campaign, Act 250 was the major issue
addressed by candidates for Governor.
- Draft copies of capability and development plan mailed
to each Vermont household (in newsprint) in preparation
for public hearing..
- Thousands attended public hearings (in the dead of
winter, after the election and during Christmas).
- The document was redrafted, incorporating suggestions
of public, submitted to Governor and Legislature (with
another public hearing).

Additionally, the permit system is organized to maximize
citizen involvement.

There are nine district environmental commissions, each
having three citizen members from the district which they
serve. They issue development and subdivision permits;
input is also prescribed from local and regional comm-
issions, via required review procedure.

The State Environmental Board is 9 citizens appointed
by the Governor. No particular experience or exper-
tise is required by law. The membership in 1970
represented a variety of interests including conser-
vation, real estate, recreational development, law
enforcement, finance, local government, and education.

E. MAKEUP OF THE DECISION MAKING-BODY

Part of designing any governmental program is the decision
of who or what agency will be assigned to administer the
system. The practice of having crucial decisions in the
hands of a single agency head or commission is being aban-
doned because it is generally recognized that citizen boards
affords more representation and involvement of the public
in decisions which are so vital. The current trend is to
enable the Governor to appoint a Board or Commission as the
final decision making body.

1. Criteria for Selecting Membership

There are a number of different types of appointment
criteria used in the defining of the composition of
the Decision-making Board:

a. Board composed half of state agency heads and half of
appointed citizens. Michigan's Water Resources Commission
is an example of this. The Board consists.of the Directors
of Department of Natural Resources, Public Health, State,

Page 52.

Highway, and Agriculture, and three citizens, represent-
ing industry, municipalities and conservation interests.

b. Board composed entirely of citizens. The statutes
contain different criteria for appointing citizens:

(1) require the citizens to have expertise in certain
fields. California seeks to have citizens expert
in the fields of conservation, ecology, recreation
sciences, planning, and education on the Coastal
Zone Conservation Commission.
(2) require citizens who represent industry, municipalities,
or conservation interests (Michigan and pre 1974 LURC
Me. statutes).
(3) require geographical representation, no more than a
specified amount from a district, region, or county
(Oregon).
(4). require no more than a certain amount from each polit-
ical party (Colorado).
(5) the last alternative, used in Vermont, is to make no
stipulation at all, allowing the Governor to appoint
any citizen, regardless of geography, party, expertise,
or representation.

2. Analysis

Boards whose memberships are split between citizens and agency
heads are an attempt at "killing two birds with one stone."
The citizen appointees bring in representation from the
outside; the state agency heads assure that the policies
of the state and its Governor are implemented. Agency
heads should also bring some professional know-how in their
field. The literature is rather silent on how this system works.
One possible disadvantage could be that agency heads are
often spread thin by being required to attend the many meet-
ings of concern to the agency. There is also the possibility
that the special interests and point of view of each agency
might get more consideration than the input from lay citizens.
It is unquestionably desirable to coordinate the agencies -
of the state: but this could be, perhaps, better accomplished
at cabinet-level meetings or by a state coordinating agency
in the Governors office. A representative of the cabinet
(possibly the head of the department of his alternate), could
then be designated as a permanent advisor to the Commission.

The assumption in appointing all Boards is that they will
serve in the Public Interest. The question is, how is the
public interest best served? The advisability of appointing

Paae 93.

citizens."representing" certain interests should be care-
fully examined. Arguments in favor of such a method are
politically pragmatic. If the interests of the various groups
are represented, the decisions will benefit from the consider-
ation of these interests, and therefore will be more pall-
atable and enforceable. There is a thin line, however, be-
tween "representing" special interests and having those
interests - a conflict of interest. On the other hand, if
the Governor h`@s no criteria to select representation from
a cross section, 7 is conceivable that each of his appoint-
ments would represent a special interest, maybe the same
one!!!

3. Conflict of Interest

Given the elusiveness of the "Public Interest" and the
weakness of people, avoiding conflicts of interest may
never be assured.

Some statutes deal with conflicts that develop after a
person is on a Board. For example, California's Coastal
Zone Conservation Act prohibits its members from supporting
or being involved in any proceedings that come before comm-
issions in which they or their family, partner, employee or
organization have any interest. The next section of the
statutes states, however, that the prohibition doesn't apply
if he makes full written disclosure of his interests. (68Y

A recommendation from the 1973 Rockefeller Brothers Task
Force on Land Use addresses itself to the conflict of
interest problem, although not to the appointment:

"To reduce the reality or appearance of conflicts
of interests, state and local laws should dis-
qualify local and state officials from voting or
otherwise participating in any regulatory decision
whose o'utcome could confer financial benefit, or
could appear to the public to confer financial
benefit, to themselves, their families or their
business of professional associates. All persons
having any responsibility for land-use regulation,
including elected and appointed officials and -
employees, should also be required by law to make'
periodic public disclosure of their financial in-
terests and real estate holdings within the jur-
isdiction over which they exercise responsibility." (69)

(68) California Public Resources Code, 027230-27234

(69) The Use of Land: A Citizens' Policy Guide-t6 Urban Growth,
(Exerpts from)

Page 54.

There are very few eligibility requirements-aimed at avoid-
inF. the appointment of people who are likely to have con-
f7icts of interest. This area needs some further research.
Oregon's Liquor Control Commission is quoted in full to
illustrate that such a statute exists and can perhaps be
applied to land use guidance commissions:

"A person is not eligible to hold office of
commissioner or be appointed by the commission
or hold any office or position under the comm-
ission if he has any connection with any person
engaged in or conducting any alcoholic liquor
business of any kind, hold stocks or bonds therin,
has any pecuniary interests therein or receives any
commission or profit from or has any interest in the
purchase or sales made by the commission or by per-
sons authorized by virtue of Liquor Control Act to
manufacture, purchase or sell any alcohol."
(O.R.s. 471.710)

F. LOCATION WITHIN STATE GOVERNMENT

It is apparent, as we have seen, that the state government
is assuming more and more function related to land use
management. The next problem is, how will functions be
divided within the state government? There are a great
number of possibilities. One alternative is to assign some
or-all aspects of the function to present agencies. Another
is to create a new agency or commission. A third possibility
is the creation of a new agency or commission subsumed under
a present agency or department. The survey of the states
indicates the use of all three approaches'
1. Assumgtions Underlying State Government Reorganization
Efforts.

The handling of a new function by state government
depends on the state, its present organization of
government, and its philosophy regarding state government
organization.

There are a number of written and unwritten principles
and theories which have been the underlying guiding
assumptions behind recent reorganization efforts in
many states. These will be briefly discussed.

Page,55.

a. Anti-Proliferation of Agencies

The old solution of creating a new agency for every
new problem is now considered unworkable. The exper-
ience has been that they tend to stay around long after
they loose their usefulness. Most states have from
190 to 240 agencies or separate departments before
reorganization. Sometimes this type of organization
looks rather pretty on a chart. (Nevada's organization
chart is noteworthy for its artistic affect and dear
to the graphically oriented reader: 18 departments -
blue rectangles; 51 independent agencies, boards, or
commissions - pentagonal in shape and colored blue if
appointed by Governor, blank if not; 55 advisory boards
to departments - blue circles; 19 interagency compacts
and their commissions, and 8 association receiving state
appropriations-trianble shape.) Since this type of pro-
liferation does not accommodate to assumptions of good
government, the states feel the need for reorganization.

b. Responsibility and Accountability

Government, and its elected officials, should be re-
sponsive and accountable to its people. A state Govern-
or should be 1n a osition to implement the policies
(campaign promises5 for which he was elected.

To be responsive and accountable, a Governor should
have power comensurate with his responsibility. To
implement his policies and to keep track of what's
going on, he should have a limited number of agency
heads to deal with on a regular basis. Proliferation
of agencies places exceptional responsibility on the
office of the Governor to keep things coordinated, and
increases the likelihood of the administration of con-
flicting policies and actions without the Governor's
knowledge. (The "who is. in charge here" syndrome.)

There is a concommitant assumption here that if the
number of agencies and people the Governor holds account-
able is reduced, and if the functions of state government
are not decreasing, then each agency head will have more
power than previously. The "czar syndrom-eTr -and the
"empire builder" come to mind.

There are disadvantages to the concentration of the
power, of course, which should be considered seriously
before any reorganization attempt. One serious con-
sequence of large departments headed by commissioners
with a great deal of power is that the citizen looses
access to someone with the degree of authority commen-
surate with his problem. It is more likely that the

Page 56.

citizen would then be shifted down the line in a large
bureaucracy. Alternatively, he may feel that in order
to even gain an audience with the authority in charge
he may have to gather more power to bolster his pos-
itions.

Reorganization efforts, however, carry the recognition
that we can't have our cake and eat it too. With
responsibility goes power and accountability. 'If the
Governor appoints his agency heads and uses them as
his cabinet to implement his policies and the laws of
the legislature, then the people know who is in charge
and, if they wish, can throw them and their policies
all out with the next election.

To strengthen the Governor's accountability, Montana
makes the interesting recommendation of giving the
Governor "3-211 ratio method of appointing "quasi-
judicial" boards. This means he has a chance to appoint
the majority of each board as he comes in, then in mid-
term he appoints the rest to overlap with the next
Governor.

c. Coordination

Most would agree that coordination is necessary in
order to set priorities and to allocate resources.
(To accomplish coordination, commissioners of agencies
and departments are assigned to each other's commission,
or at least have to come in formal contact via various
committee structures.) In Massachusetts, for instance,
the Commissioner of Natural Resources finds it a bit
tricky to serve on 40 state, interstate, and Federal
boards and commissions. It is an assumption, then, that
Government must be so organized that those politically
responsible to the people can establish priorities
among competing claims in government (Maine).

Departments should not work at cross purposes. They
should all implement the established or adopted policies
of the state. The one clearing house should be in the
office of the Governor; however, as discussed above,
no Governor can effectively coordinate the infinite
activities of innumerable agencies and their heads.

d. Government should serve the people.

Besides providing a line of leadership, a reorganization
of the executive branch should help reduce the frust-
rations of the people in dealing with their government.
Clear assignments of responsibilities should help sim-
plify, fot instance, application permits. A clearing
house for permits could be established (or is it a
dream?); the responsibility could then coincide with the

Page 57.

function, so that if the citizen needs a permit for an
activity he need apply to only one agency.

In short, Government should be there to serve the people,
not to drive them to despair, complaints, and belliger-
ence toward the "bureaucracy" up in Albany, Columbus,
Augusta, or wherever.

e. Efficiency

Efficiency is one of many values, not, as sometimes
claimed, the only one -.in considering executive
reorganization. State government should be able to
"carry out programs and policies with equity, efficiency,
and economy." (70)

All would agree that it is a desirable goal to reduce
administrative expense (salaries, office space, and
equipment).and to eliminate the unnecessary duplication
of services. "The word "unnecessary" is used as an
indication of our "you can have your cake and eat it
too" assumption, which Uo-esn't mind some duplication
if it means checks and balances).

Besides the attractiveness of efficiency, reorganization
measures often get their salability from the claims of
saving taxpayer's money. This is, of course, probably
one of the honest goals, although an elusive one.
Ta-vings figures are hard to come by; but Montana claims
to have saved $1,707,500/year by reorganizing.

Efficiency is often the motivation of ad hoc businessmen's
groups who seek to show the bureaucracy how inefficient
they are and how much they could save by reorganizing
or by eliminating some programs.

Another by-product of the efficiency of reorganization
might be the stifling of initiative. If a person feels
that his ideas would have to go through a whole series
of reviews through a large department and might possibly
be a threat to someone in that large department he may be
discouraged from creative thinking that would be of
great benefit to the public.

The trouble comes when the implementation of the effici-
ency goals comes bombing up against a whole series of
other values, policies,'and goals painfully hammered
out through the laborious political processes in the
Legislature and on the campaign trails. Government is
not a business, out to make a profit--human values,
social needs and desires are involved.

(70) Foster, Charles, Plan for Reorganization, Massachusetts, 1973

Page 58.

f. Flexibility

Another desirable goal of reorganization is to accomplish
it for once and for all. The system should be flexible
enough so that when new problems crop up, the state
does not have to start proliferation again, by creating
another agency. Ideally, the categories or functions
of the agencies should be broad enough so that new
functions will neatly fit into the existing agency's
framework. Montana allows the Governor to place agencies
where he feels suitable, so that no agency "hangs out."

g. Uniqueness of Land Use Functions

It is the general feeling that state governments lack the
capacity to respond effectively to statewide land use
problems, which can't be compartmentalized with in the
traditional state government organization. There appears
to be no one best way available for solution of the
problem. Government must have the capacity to map,
measure, monitor and model the entire land use system.
State governmert has to be the steward for the public
interest, thereby insuring the protection and preservation
of the states' productive environmental resource base;
and it has to be able to guide development.

In summary, broad functional areas, rather than specific
programs, should be recognized as the basic framework
for contemporary executive organization-"Implicit in
the recommendations if the assumption that form should
follow function in State Government." (71)

2. Alternative Approaches

"The growing concern over pollution and
environmental quality has resulted in such
a maze of administrative rigamerole that
any definition of 'pollution' probably will
need to be amended to include 'red tape'" (72)

In choosing the best-way to locate land use functions in
state governments, the decision-makers will ultimately
have to face key issues on function, separation of function
and relationship to existing agencies.

a. According to Function

If the criteria for organizing government is according
to function, then the question is what function does

(71) Maine Governor's Task Force, 1969

(72) "Florida Staff Report to Government Operations Committee
on Environmental Reorganization." Febr-uary 1, 1972

Page 59.

land use management fall under? Is it pollution
control, protection, conservation, development, or all
of the above? If the organization is already such that
the agencies come under broad umbrella headings which
will comfortably cover all of the above, than the
problem is solved. As Richard RuBino says of the Florida
Land Use Management Act, it would be desirable to place
it in a

"value-neutral agency, since the Act is designed
to achieve balance between the interests of en-
vironmental protection as well as the need for
orderly growth and development in the state."

He also warns:

"Great caution must be exercised in the*place-
ment of such authority. If the parent agency
is too single focused, then the potential of
a broad program may never be realized. On the
other hand, a too narrowly focused program
(e.g. wetlands) might be adequately handled
by a single-focus if atency (e.g. department of
water resources.) 73)

b. Separation of Components

The next issue to be faced and solved is the separation
of components. Some of the arguments were discussed
above under levels of government, since the separation
could take place along state, regional, and local levels,
or along cabinet level agencies or divisions in large
umbrella agencies.

The Michigan Land Use Study Commission recommends that
at least those functions related to planning and manage-
ment.assigned to the state should be done by one agency.

c. Relationship to Existing Bureaucracy

When giving the state a new function, assuming that the
various components of the land use management system
were developed piece-meal, is it better to reorganize
and institute new programs simultaneously; or is it
better to create a "temporary" new apncy (either in
the Governor's office or independent), see how it evolves,
and then attempt to combine it with an ongoing depart-
ment? The problem here is that agencies are seldon
"temporary" in state government. Directors are hired,

(73) RuBino, Richard, States Role in Land Resource Management,
Council-of Governments, 1977.

Page 60.

a staff is appointed; and the agency becomes accustomed
to being accountable to its own commission or Board,
the Governor and the Legislature. This "temporary"
agency is now an organization with vested interests
in self-perpetuation and expansion. (74)

Another related problem is the question of concentra-
tion of power. Should the relative power of agencies be
considered when dealing out new functions? There is
not only the possibility of inter-agency jealousy;
personalities are involved. Is the present agency head
capable of taking on another large chunk of respon-
sibilities (did he reach Peter's Principle?) or do you
"promote" him sideways and hire a new person? Some of
these considerations don't sound very lofty, but they
are real and should be anticipated.

d. Alternative Placements Within the State
(1) Lodaing in Planning A@ency - is especially applicable
where the state has essentially planning functions, as
in the ALI Code. In articles from State Planning agency
heads, all seem to want this function to be in the State
Planning Office (vested interest?). For example, Richard
Slavin, from Washington State Planning and Community
Affairs, feels the land use management systems' planning
function should be a part of an overall planning oper-
ation in the Office of the Governor. He did acknowledge,
however, that this might overburden that office, thus
developing a need for a "comprehensive plan for the
comprehensive plan."

David Brandon, Director of Program Development, New
York Urban Development Corporation: "State Land Use
Planning Agency should be a part of a broad comprehen-
sive planning structure tied directly to the Governor."
If it were under another agency its authority and role
might not be recognized. Irving Hand (Director of
Pennsylvania State Planning Board) favors placing the
agency within the Planning Board, but urges the building
of agency and citizen advisory boards to afford input
before the document is finished.

(2) Independent Commission
There are.a few independent Commissions set up to
meet the new problem. This approach is often rejected
because it continues the unwise practice of proliferation.
Sometimes commissions begin independent but are later
incorporated under a larger umbrella agency. The Hawaii

(74) "Principles and Problems of State Planning", Leopold
Goldschmidt, ASPO Report, #247, June 1969

Page 61.

State Land Use Commission is in the Department of
Planning and Economic Development. Colorado's Land
Use Commission is in the office of.Governor; Maine's
(Wild) Land Use Regulation Commission 'was originally
independent, but has now been transferred intact to
the newly created Department of Conservation. Oregon's
Land Conservation and Development Commission is essen-
tially independent, although considered under a broad
umbrella of "environmental" and natural resources pro-'
grams.
(3) Land Use Functions AssiMed to Existing Agency

There are a number of gradations in this approach.
A function or two could be given the Department of
Environmental Protection or of Natural Resources; a
new agency to coordinate environmental functions could
be-formed, where land use functions might be diffused
but coordinated by an Environmental Quality Commission;
or Land Use could be a major bureau, a division of an
existing large umbrella agency, with Land Use having
its own Commission, director, and staff.

The first approach of placing function in the Environ-
mental Protection Agency is actually used in only a few
states. New York State has a Department of Environmental
Conservation with divisions of Planning and Research and
Environmental Conservation, under which are located, the
Environmental Management, and Bureau of Lands and Forests.
Vermont has an Agency of Environmental Conservation, of
which the Environmental Commission with Land Use functions
is a part. The other department which often assigned
land use control function is the Department of Natural
Resources. The creation of an Environmental Coordinating
Council was accomplished in Minnesota and proposed in
the New Mexico study. In Minnesota, the land use functions
are in different departments,,but coordinated at the Govern-
or's Office by the Inter-agency Council ofNatural Resources.
The New Mexico model is shown on Figure 2.

The placement of land use functions in an established
Department or a newly created super-agency doesn't
preclude the existence of a State Land Use Agency.
Michigan's Department of Natural Resources created a
permanent office of Land Use within the Department'. The
line of authority from the Governmor through the Depart-
ment is shown in Figure 3.

Page 62.

The Massachusetts-proposed reorganization (Figure 4.)
takes the broad super-agency approach. It creates a
Secretary of Environmental Affairs and divides functions]
according to activities (services, quality control,
water, land). This approach affords a separation of
relationship of resources. It does not, however,,
integrate functions according to resources, which would
pull together land use policy planning and management.

Since this area ofgovernmental service is new, and
since easy solutions are not at hand, the process of
evaluation needs to go on constantly.

Page 63.

(MICHIGAN FIGURE 3)
GOVERNOR

NATURAL RESOUR ES COMMISSION

DIRECTOR OF NA RESOURCES

CHIEF, OFFICE OF LAND USE:
Overall program review and mgt.
and response

SECRETARY POLICY &
TECH. ADVI-
SORY COM-.
ITTEES

ASSISTANT CHIEF: Program Support for TYPIST CLERK INTER-GOVERNMENT.COORDINATION &
Chief and iF -Program Dev. & Adminis- SPECIAL PROURAMS: Liaison with other
tration Gove rnm ent Agencies for Physical
Resource Inventory Projections and
Trends, Natural Determinants,
:1E Population Ests.
E-3-05 yr. MAPPING PROGRAMS &
Pr gram Design GRAPHICS MOMINATION

RESOURCES ANALYSIS: Resource Econ.9
Land-InTo.. Sysfems, Classification,
Referencing, Taxation & Legislative
POLICY & LEGISLATIVE PROGRAMS: Assessment Policies, Land Resources, Research
& Legis. Programs, Fed.,77ate, Local Methods
Environ. Review, State Plan
C

PLANNING LEVELS & FUNCTIONS: RESOURCE PLANNING: Special Pro-grams
Planning & Zoning Nilif d go go
MlevAMansdalilcows No, M .0100

'seem a'" "amom
ENVIRONYEENTAL QUALITY COMMISSION

-SURE= MI17ING IENTAL LAND-Ts-TE POLICY rW-ATT @TT -TO BE APPOINTED BY
COMMISSION IMPROVEMENT COMMISSION COMMISSION GOVERNOR
BOARD

BUREAU STATE STATE HEALTH STATE STATE PUBLIC STATE OIL STATE PARKS
OF PLAN- LAND AND HIGHWAY DEPT. SERVICE ENG_ GAS FORESTRY AND
MINES ING OFFICE SOCIAL DEPARTMENT OF COMM. INEER COMM. DEPT. REC.
6- OFFICE SERVICES, --------- AGRIC.

LAND USE ADVISORY COMMISSION

REGIONAL MUNIC- FEDERAL SOIL AND PRIVATE ACADEMIC ENVIRON- STATE ASSOC. OF
COUNCILS OF IPAL AGENCIES WATER NON INSTITU- VIENTAL LEGIS- COUNTIES
GOVERNMENT LEAGUE CONSER- PROFIT TIONS 31ROUPS LATURE
VATION BUSINESS
comm. j L_
17T
IMP%
B07A

(NEW MEXICO--FIGURE 2)

MASSACHUSETTSPEPARTMENT
OF ENVIRONMENTAL AFFAIRS

(Reorganized)

BOARD OF
ENVIRONMENTAL ADVISORS OFFICE OF THE SECRETARY

UNDERSECRETARY

TIVE AND
PROGRAM SERVICE FENVIRONMENTAL QUALITY1 LENVIRONMENTAL MANAG LEGAL AFFAIRS
ADMINISTRATION-EDUCATION@
COMMUNICATION AIR -- LAND SOLID WASTE --WATER RESOURCES GENE NFORCE
COUNSEL MENT
DATA SYSTEMS -RESEARCH WATER--HAZARDOUS FORESTS/PARKS--MARINE RESOURCES
PLANNING SUBSTANCES
RECREATION--PEST CONTROL
INTER-GOVERNMENTAL FOOD AND FISHERIES/--LANDS/
RELATIONS AGRICULTURE WILDLIFE ENGINEERING

ENVIRONMENTAL DISTRICTS
(Advisory Boards)
[A INTS
PM
RO . @ALMAN;[email protected] AFFArIR
S
@
ENF
L M
SE N'

VI. RELATED FEDERAL PROGRAMS: EXISTING AND PENDING LEGISLATION

A study of the States' role in land guidance is not complete
without an examination of those programs and policies of the
Federal Government which relate to various components of state
land use guidance systems. The Federal Government itself is
a direct user of land, owning millions of acres of national
parks, reserves, forest lands and defense bases.. This analysis
is concerned with the past, present, and projected roles of
the Federal Government with relation to the use of public
and private lands in those areas of critical concern which
extend beyond municipal boundaries'and have a larger than local
impact.

The most important Federal land use legislation is a National
Land Use Policy and Planning Assistance Act, first proposed in
1971 by Senator Jackson. Although this act meta temporary
defeat in a House procedural move in June 1974, its introduction
and consideration are still significant. This proposal repre-
sents the culmination of at least 30 years of piecemeal legis-
lation. More importantly, it would establish a framework for
a comprehensive syste 'm, designed and administered by the
States with Federal assistance.

A. SIGNIFICANT FEDERAL LEGISLATION 1944-1971

1. The following chronological list highlights the most sig-
nificant Federal legislation, policy statements, and other
efforts related to land use guidance7. It cannot claim to
be comprehensive; no doubt some things are left out. The
major source for this list was a report for the Senate
Committee on the interior prepared by the Environmental
Policy Division of the Congressional Research Service of
the Library of Congress. The descriptions are more de-
tailed toward the end because the policies and concepts
expressed in the years just prior to the.current Congress
tend to lay the foundation for the major legislation that
was considered. To aid the reader in relating themeasures
to the terminology uses in this-paper, the principle juris-
diction or component is indicated in the margins.
Federal Aid Highway Act of 1944 (PL 79-268)*
Regional or
Statewi 'de Congress designated a National System of Interstate
Impact Highways within the continental United States not
Developments to exceed 40,000 miles.

PL is Public Laws found in UNITED STATES STATUTES AT LARGE
79 is the Congress number indicating the 79th Congress
268 is the number of the statute in that Congress

Page 64.

Veterans Mortaaa& Guarantees (PL 79-268)

This broad amendment to the Servicemen's Readjustment
Policy Act of 1944 raised the limit on the amount of mortgage
guarantees asa major means of Federal assistance to
housing.

Federal Airport Act of 1946.(PL 79-377)

Regional The Civil Aeronautics Administration was directed to
Impact prepare a national plan for development of public
Development airports.

1946 Coordination Act (PL 79-732)

This act establishes a Goverment wide policy that
all new Federal water projects should, if possible,
Policy prevent loss or damage to fish and wildlife existing
at the site. All users of funds have to consult Fish-
Wildlife Service to learn of measures necessary to
Planning prevent lbss. It also authorizes studies about the
(Inventory) effects of pollution on. wildlife, and surveys of
wildlife on lands and waters controlled by U.S.

(Forest) Resource Appraisal -
Not an act', but a program, 1945-47, done by Forest
Service on private and public land. It noted a de-
cline in the volume of saw timber (43% in last 36
Planning years). It showed that only 8% of the cutting practice
(Inventory), on.private forest land was rated good or better. It
concluded that there was ample forest land in the U.S.
for timber needs; but to meet these needs,'saw timber
growing stock should be built up to double the existing
volume.

Housina Act of 194-9. (PL 811-171)

Policy Declared a national housing goal of a "decent home
and a suitable living environment for every American
family".

Amendment to the 1924 Clark-McNary Law (PL 81-392)

The basic legislation was for enhancing forests on state
Policy and private lands. This amendment provided authorization
for aid to states in helping farmers restock denuded
lands.with seedlings.

Page 65.

Omnibus Housing Act of 1954 (PL 83-560)

50% matching funds to states to assist planning in
Planning communities. States make grants for planning, including
(701-Program) surveys, land use studies, to metropolitanj regional
or state agencies.

Water shed Protection and Flood Prevention Act of 1954
(Pr 83-57)

Small watershed programs to be carried out by Soil
Critical Conservation Service for a coordinated balanced develop-
Areas ment of soil and water resources in projects up to,
250,000 acres.

Small Watershed Amendment of 1956 (PL,84-1018)

Policy Amended for flood prevention, municipal and industrial
water supply, fish and wildlife development and recreation.

Highway Act of 1956 (PL 84-627)
Regional and
Large Scale Authorized the biggest road building program in his*tory,
Impact Develop- earmarking user fees for Highway Trust Fund to frame
ment National Systems Highways.

Our Vanishing Shoreline (1954-55)
Park service survey of potential seashore and recreational
areas along U. S. Atlantic and Gulf Coasts, it recommended
that Federal, State and local governments acquire,
Policy as soon as possible, at least half of the 640 miles of
Planning seashore available for public recreational use. It also
recommended acquisition of hinterland marsh and swamp
Critical areas for bird and animal development near shorelines,
Areas and plant-animal communities of great ecological interests.
Designated 16 areas of "choices still available".

Agricultural Act of 1956 (PL 84-540)

Soil bank*conservation programs to connect cultivated
land to conservationuses, such as planting of trees.
Policy Although primarily designated to retire crop lands, it
also assured that land would be used for its intended
purpose.

Page 66.

Flood Control Act of 1960 (PL 86-645)

Part of an Act authorizing the construction, repair,
and preservation of certain public works on rivers and
harbors. Its purposes included navigation aid and
flood.control.

Title I Rivers and Harbors

improvements of a long list of rivers authorized by
Secretary of Army and the Chief of Engineers, includ-
ing a number in Maine; also beach erosion control
authorizes studies of shore erosion.-
,Critical Area
Title II Flood Control Act of 1960

Approval of hydroelectric dams by Army upon recommen-
dation of Chief of Engineers - List projects in
Crite ria for Use specific rivers. Authorizes Secretary of.Army (Army
Corps of Engineers) to disseminate information on
flood hazard dreas, and to issue, upon request of
state or local officials, general guidelines for use
of flood plain areas.

Bureau of (Public) Land Management, Management Criteria
(1961)

This is included because it contains a declaration of
policy regarding the relationship of present public
land to private use. President Kennedy said on February
23, 1961, that public lands were a "vital national
reserve that should be devoted to productive use now
Policy and maintained for future generations." This reflects
a change from the 19th and early 20th Century policies
of unloading public lands. The purpose of the criteria
was to tighten a'dministrative procedures in order to
block people from buying or obtaining public lands for
speculative purposes or for agriculture in seriously
water short areas. The Bureau classified lands accord-
ing to this polilcy and called for.Ilmultiple-usell of
public lands.

Housing Act of 1:961 (PL 87-70)

It provided more,funds for urban planning and for grants
Planning to states and loi,calities (up to 30% of the cost of
Policy acquisition of land in and around urban centers) for the
creation of "open space" areas with recreational,
conservation, scenic and historical purposes.

Page 67.

Conservation Needs.Inventory

Based on 1958 data, published in 1962, by Department
showed no
of Agriculturels.Soil Conservation
shortage of'land for food production, but a very high
Planning 'proportion with erosion, excess water, and soil defic-
(Inventory) iency problems which reduc,ed land capability. Inventory
also showed that considerable land was being used for
the wrong purposes.

Food and Agriculture Act of 1962 (PL 87-703)

Authorized the Department of Agriculture to aid farmers,
farm associations and local government units in develop-
Policy ing and implementing land use plans. Such plans were
Planning to show application of conservation and water develop-
ment practices, shifting cropland to forests., recrea-
tional uses, and industrial and commercial uses, in an
effort to boost rural prosperity.

Federal Aid Highway Amendment Act of 1963 (PL88-157)

Federal incentive for billboard control along Interstate
Highway Systema.

An Act to Promote the Coordination and Develument of
Effective Programs Relating to Outdoor Recreation and
for UiFe_rPurposes, 19b3. @PL88-29)

Policy Authorized the formulation and maintenance of a compre-
Planning hensive nationwide recreation plan.by the Bureau of
Outdoor Recreation, aimed at encouraging the coordinated
and rapid development of recreational facilities by all
levels of government.

Land and Water Conservation Fund Act (PL 88-578) 1964

Policy Special Federal fund to help.finance accelerated acqui-
sition of outdoor recreation areas by Federal-State
agencies.

National Wilderness Preservation System - 1964 (PL 88-577)

Critical Area Authorized acquisition of private lands to within peri-
Acquisition meter of area designated as "wilderness area," if owner
acquisce.s and if Congress specifically authorizes funds.

Page 68.

Ozark Scenic Riverways (PL 88-492), 1964

The first riverway to be added to the National Park
System Congress authorized acquisition of 65,000
acres of privately owner land.

Appalachian Regional Development Act 1965 (PL 89-4)

Authorized over a billion dollars for the development,
.of the economically depressed 12 state region. Funds,
for highway construction, conservation, timber aid,
mining area restoration, water resource survey., sewage
tr,eatment, expenses of local development districts, and
research.

Public Works and Economic Development" Act 1965 (PL 89'136)

Funds for facilities such as waterworks, water and
sewer lines-, waste treatment plants and health facilities,
streets and roads-all needed for commercial and industrial
development. Also, encouraged states to set up multi-
state regional commissions to promote economic develop-
ment in depressed regions.

Housing Act of-1965 (PL 89-1.17)

Acquisition Establi'shed uniform land acquisition procedures, increased
grants for open space acquisition and-programs of parks
in urban areas,and,provided grants for urban beautifi-
cation. Directed administrator to study and report on
Compensation methods of reducing the loss to homeowners whose property
depreciates because of proximity to.airports.

Highway Beautification Act of 1965 (PL 89-285)

Authorizes new programs for the removal of,junkyards and
'Policy for landscaping. It provided no funds, but set a policy
of restoration of natural beauty as a national goal.

Water Resources Planning Act 1965 (PL 89-80)
-Federal Water Resources Council to evaluate regional and
river basin plans - each Regional Commission to prepare
Planning and keep up to date a comprehensive-.joint development
plan. The Council published in Federal Register 38,
2478, September 10, 1973, standards for-planning water
and related land resources.

Page 69.

Demonstration Cities'and,[email protected] Act
of 1966 (PL 89-754)

This Act provided for new programs of community renewal
in U.S. Cities to assist in the orderly development of
Metropolitan areas. It has a plan for incentive'grants
to encourage comprehensive and area-wide planning. It
specified that guidelines for review of Federal aid pro-
jects be promulgated. The guidelines are now the so-
called A-95 review process.
Regional �204 - Coordination of Federal Aid in Metropolitan areas--
Planning before applyihg for federal aid to assist-in open space
land projects, planning or construction of hospitals,
airports, libraries, water-supply distribution, sewerage,
highways, transportation facilities, water and land
conservation projects within metropolitan area--the
developerpust apply for review to an areawide agency--
..and include information whether or not the project is
consistent with areawide planning.

Rural Water Systems 1965 (PL 89-240)

Planning Grants for comprehensive planning and for development
of water supply and waste disposal systems in rural
areas specifically designated by Congress.

,Federal Aid Highway Act of 1966 (PL 89-574)

Policy Declared a Policy--that the Secretary of Transportation
should.make maximum effort to preserve the beauty and
historic value of Federal, State and local government
parklands and historic sites; and that the Federal
government should cooperate with states in developing
plans.

Federal Aid Highway Act of 1968 (PL 90-495)

Also designed to preserve parkland and historic sites
from encroachment, it imposed 10Y6 penalty against
construction funds if state has no beautification program.

National Trails System 1968 (PL 90-543)

Policy Established a nationwide system of trails in remote
areas for hiking and camping - appropriation for acquisi-
tion from Land and Water Conservation Fund. Among the
designated trails in the system, were the Appalachian
Trail and the Pacific Crest Trail.

Page 70.

Wild and Scenic Rivers System, 1968,' (PL 90-542)

Policy To preserve outstanding stretches of rivers from
imcompatible water resource development, pollution,
Critical and commercialization. Classified wild, scenic, and
Areas recreational areas. The Secretary of the Interior
can acquire related land. State and local grants to
assist in planning and administration. The Secretaries.
of the Interior and Agriculture, and other Federal
agencies, review administrative and management systems.

Estuary Preservation Study - 1968 (PL 90-454)

Critical Initiation of programs to preserve nation's estuaries:
Areas Coastal marshlands, bays, sounds, seaward areas, lagoons
and land and water of the Great Lakes.

Inter-Governmental Cooperation Act of 1968 (PL 90-577)

Title IV covered federal programs and projects and
coordinated inter-governmental policy and the'admin-
istration of development assistance programs.

Guidelines The President was to establish rules and regulations
governing the formulation, evaluation, and review of
Federal programs and projects having a significant
impact on area and community development.

Regulations to consider the following objectives:

Criteria appropriate land use for housing, commercial,
industrial, governmental, and institutional
purposes;
wise development and conservation of natural
resources;
balanced transportation systems;
adequate outdoor recreation and open space;
protection'of unique natural beauty and historical
or scenic interest;
properly planned community facilities; and
concern for high standards of design.

Planning All programs should further the objectives of State,
regional, local comprehensive plans.

Housing and Urban Development Act (PL 91-152)

Policy Provides insurance for flood damage in those states
which adopted land use practices consistent with the
Critical wise use of areas subject to flooding.
Areas

Page 71.

National Environmental-Policy Act of 1969 (NEPA) (PL 91-190).

The purpose is to move the nation in*a comprehensive
marifter toward the accomodation of the goals of.economic
development and preservation of a quality environment.
It declared that it is the responsibility of the Federal
Government "to use'all practicable means to:

(1) Fulfill the responsibilities of each generation
@.as trustee of the environment for.succeeding
generations;
(2) Assure for all Americans safe, healthful, productive
and aesthetically and cul.tur'ally pleasing surround-
Policy ings;
(3) Attain the widest range of beneficial uses of the
environment without degradation risk to health or
.safety, or other undesirable and unintended,con-
sequences;
(4) Preserve important historic, cultural, and natural
aspects of our heritage, and maintain, wherever
possible, an environment which supports diversity
and variety of individual choice;
(5) Achieve a balance between population and resource
use which will permit high standards of-living and
a wide sharing of life's amenities; and
(6) Enhance the quality of renewable resources and
approach the maximum attainable recycling of
depletable resources.

This,is almost like,an "Environmental Bill of Rights."

How is all this going to get implemdnted? So far,
the act directs that all policies, regulations and public
laws be examined in light of'this policy!! The Act
requires that all federally-funded proposals include
an environmental impact statement. It created a Council
on Environmental Quality 'in the Executive Office. The
President has to issue an Environmental Quality Report
annually which seeks to.relate "on the state and condition
of the environment with recommendations for improvement."
This is certainly an interesting Act. How it will
function is a subject for much evaluation. (See Maine
Law Review, Volume 25, Number 2, 1973)

Housing and'Urban Development Act of 1970 (PL 91-609)

This Act consolidated and simplified administration of
open space programs.

Policy Urban Growth and New Community Development Act of 1970

Set policy to guide future urban growth, and provided
increased Federal Funds to public and private agencies
for the creation of new communities.

Page 72.

Airport and AirwaVs Development Act - 1970 (PL 91-258)

Policy Department of Transportation must take into account
environmental values in considering siting of future
airports.

Federal-Aid HighwaV Act of 1970 (PL 91-605)

- Extends Interstate system 2 more years;
Regional - Provides that the Department of Transportation must
Impact promulgate mLi-4elines "designed to assure that possible
Development adverse economic, social and environmental effects
relating to any proposed pro-ject be fully considered
in the development of the project'.';
- Provides for open and responsive public hearings in
locality affected;
Planning - Secretary of the Department of Transportation may
desia2ate regions and corridors of critical concern;
- Establish planning bodies within state to,assist in
Citizen development of coordinated transportation planning;
Participation - Issue .guidelines to control soil erosion in connection
With highway construction projects.

Resource Recovery Act, 1970 (PL 91-512)

2 year National disposal site study, listing methods
now used and recommending new methods.

Agriculture Act of 1910 (PL 91-524)
Policy
Title 9 set policy to establish rural-urban balance in
the provision.of goverment services,

Commission on Population Growth and American Future 1970
(PL 91-277)

A study recommended by the President on the economic,
social and governmental requirements of population
growth and its impact on natural resources.

The Clean Air Act of 1970 (PL 91-604)

Requires the maintenance of a national ambient air
quality standard and the prevention of significant
Performance deterioration of air quality in regions with air
Standards -superior to the minimum national standards. This
law requires states to establish a statewide reconstruction
Large-Scale review procedure to assess the impact of significant
Development new sources of air pollution.

Page 73.

.Coastal Zone.Manakement Act.of,1972 (PL 52-583)

It is a National policy to:

Policy preserve, protect, develop where possible,
restore and enhance the-resources of the
nation's coastal zone;
-encourage the states.to institute management
programs; and
encourage cooperation among various state and
regional agencies.

Jurisdiction 11coastal Zone" means coastal waters includes lands
and adjacent shorelands--includes Great Lakes--extends
to International boundary between U. S. and Canada.
Zone extends "to extent necessary to control shorelands"
(Not too definite). Grants up to 66 2/3% for purpose
of setting up management programs. This shall include,
States' Role (as a state responsibility):

- identification of boundaries;
- inventory and designation-of areas of particular
concern;
- a method of implementation;
50% grants for acquiring and operating estuaries
The state may allocate portions of.its duties to
areawid,e agencies.

Program Requirements:

Prior to-approval Secretary must verify that:

- The program is in conformance with rules and regulations
promulgated by Secretary;
- The state has coordinated activities with other
agencies on all levels, according to.guidelines in
�204 of Demonstration Cities and Metropolitan
Development Act of 1966, and Title.IV of the Inter-
Governmental Act of 1968;
Citizen - public hearing has been advertised 30 days prior,
Participation material madelavailable to public for study.

The Secretary conducts the review and can withdraw
Sanctions grants if state does not adhere to the standards.

Administration

The administration-is assigned to the National Ocean-
ographic and Atmospheric Administration of the Department
of Commerce. There is a Coastal'Zone Management Advisory
Committee of 15 peopl'e--criteria for membership not
specified, except'that the group as a whole-should possess
"a broad range of,exp.erienceIand knowledge relating to
problems invol@/ingmanagement, use, conservation, protect-
ion, and development of coastal zone resources."

Page 74.

Federal Water Pollution Control.Act Amendments of 1972
(YL 92-500)

Section 208 requires the states to develop areawide
or regional waste-treatment management plans. Includes
Critical a requirement to@ identify'run off or non-point source
Area of pollution from activities such as agriculture, silva-
'Regulation culture, mining, or construction activity; and requires
that "procedures and methods (including land use require-
ments) be set forth to control to the extent feasible
such sources" (Section 208 b) 2) fv go h)*

Flood Disaster Act of 1973 (PL 93-234)

Expands the National Flood Insurance Program. All
communities identified by Housing and Urban Develop-
ment as having special flood hazards must enter the
program by July 1 1975 or lose all federal financial
Critical assistance.for "ac'quisition or construction purposes"
Area in theflood-hazard areas. To enter flood-insurance
program, states and communities must agree to develop
land use control measures which are consistent with'
floodplain management criteria i ssued by the Depart-
ment of Housing and Urban Development. These criteria
Regulations require communities to develop, as a minimum, flood-
plain ordin'ances, zoning and building code regulations
that will reduce the likelihood of flood damage in.
hazard areas.

Congress did not, however, authorize planning grants
for community flood-plan management programs.

2. Summary

The operation by the Federal Government of,the proverbial
."carrot and stick" method of guiding land use is evident.
The national government in our federal system can and has
responded to apparent problems associated with land use
in a rapidly growing 'Industrial inter-connected society
by two chief means: First, by setting policy as a correc-
tive and preventive measure; and second, by the use of money
to assist lower levels of government in the implementation
of Federal policies. There has also been some direct
planning, or taking of inventory of natural resources, by,
the Federal Government. Policies for better-services in
housing, transportation. and recreation have complemented
policies which reflect the increasing emphasis on'the value
of land and water-reiated resources. One can see a gradual
trend'away from the traditional single-solution treatment
of a resource to an attempt at full scale action to imple-
ment a broad policy. The statutes reflect the increasing
awareness of the need to consider broader environmental
impact.

Page 75.

The Demonstrations City Act of 1966 and,the Inter-Gove *rrimental.
Cooperation Act of 1968 seek to use Federal funds as an
incentive to comprehensive planning. The criteria for con-
sidering grants for a development include consideration of
the broad impact on the environment and the interrelationship
of the parts. (Some of this, of course, also stems from
the fact that the Federal govermnent did not want to waste
money on the ineffeciencies of duplication). This type of
environmental consideration culminates in the Clearinghouse
procedure for any federal projects, as required by the
National Environmental Protection Act (NEPA).

Themeans of.implementation used by the Federal government
is the "carrot". the use of money. Money can.be used for
acquiring lands.or for planning assistance grants (701 funds);
and now grants are being used to encourage the establishment
of whole management programs, as in the Coastal Zone Manage-
ment Act. The current relative roles of the Federal and
State Governments with respect to land use seem to be estab-
lished by this Act. The national government sets a policy
(for example, that coasts shall be considered unique); and
the states set up the management. The Federal Government
offers substantial financial assistance, and to a limited
extent, uses the granting system as a "stick". With the
money come certain conditions that offer the Federal Govern-
ment review powers, as well as sanctions (likegrant with-
drawal) if.the conditions are not met.

The review process also offers a certain amount ofminimum
standards for the establishment of a program, which can be
used by the Federal government as a checklist when considering
applications for assistance.

The Nationallegislative pattern indicates a limited
response to the problems of a highly industrialized society
operating on a finite resource base. The-increasingly
apparent need today is for a coordinated and comprehensive
legal framework which guides the use of land, private and
public. Legislation which exists regarding highways, parks,
and wild rivers, is piecemeal and there is none adequate
yet for strip mining or power plant siting. Missing is a
comprehensive and coordinated system, for every govern-
mental level, that guides and interrelates land use activities
and their respectivd impacts.

B. THE NATIONAL LAND USE POLICY AND PLANNING ASSISTANCE ACT

1. Background

The consideration of a National Land Use bill by the
93rd Congress (1973-74) was preceeded by the deliberations
of two previous Congresses for a period of at least four
years. The first national land use policy proposal

Page 76.

(S 3354) was prese Inted by Senator Henry Jackson of the
State of Washington to the 91st Congress, After four
days of hearings by the Senate Committee on Interior
and Insular affairs, the bill, substantially amended,
was reported favorably by the committee. There was no
vote on the bill in the Senate that year.. The Ho use
committee did not even hold hearings.

The 92nd Congress took up the challenge by extensive
consideration of several Land Use Bills and Amendments.
The chief bill considered was Senator Jackson's S 632,
which was the combination of S 3354 of the previous
Congress, and S 992, the Nixon Administration's measure.
The several proposals were subject to 10 days of hearings;
four by the Interior committee and three each by the
Banking, Housing and Urban Affairs and Commerce Committees.
S 632 was recommedned to the Senate by a vote of 13
to 3 of the Committee on Interior and.Insular Affairs.
The Senate passed s-632, 6o to 18i on September 19, 1972.
In the House, HR 7211, sponsored by Representatives
Aspinwall, Baring, Taylor et. al., and similar to the
Senate bill, was reported by the House Committee on
Interior Affairs, but remained in the Rules Committee
through the conclusion of the 92nd Congress.

The 93rd Congress, in session at this writing, has had
before it at least 10 bills relating to the National
Land Use Bill.. The major ones include: S.268 (S 632-of
the 92nd); HR 2942 (same bill in the House); S 9240
HR 4862 (Administration Bills); S 792, Senator Muskie;
HR 91, Representative Bennett; and most recently, HR 10294,
sponsored by Representative Morris Udall of Arizona.

Six days of hearings were held in the.Sen@Lte Committee
with the invited participation of Chairmen of seven
other rel'ated subcommittees. The S 268 that was reported
out of committee sought to incorporate the major accept-
able features of the other subcommittee bills. S 268
passed the Senate once again with further amendments on
June 21, 1973, by a vote of 64 to 21.

Action in the House narrowed down to HR 10294, titled
,."Land Use Planning Act of 1974.11 Accordingto the
House Committee report, this bill is not simply a copy
of S 268. There were differences between S 268 and
HR 10294. Rather, it is the result of heavy reliance
on the Public Land Law Review Commission (One Third of
the Nation's Land); A Report to the President and the
UEngress, 1-97-07-and the Americal Law Institute Model
Code (ALI).

Page 77.

The House bill, HR 10294, was heard in House Subcommittee
in September, 1973. It was reported to the House on ' I
January 22, 1974, by a vote of 26-11. First, the House
Rules Committee almost killed the bill; then on June
14, the full house voted 211-204 not to bring the bill
to the floor for debate. This action effectively killed
the bill in the 93rd Congress. Supporters claimed
that the Administration had withdrawn support from what
President Nixon had once called "the most important
piece of legislation facing the 93rd Congress." Others
blamed lobbyists for industry and real estate interests.
Regardless of reasons, the.close vote indicates a sub-
stantial interest in Federal land use legislation, and
practically assures its reintroduction at the next
session of Congress.

2. Need

"For over a century after the birth of our
Nation, Americans enjoyed a super abundance
of relatively free land.

Today, however, land is our most valuable
resource - an all too finite resource. Un-
like air and water and many minerals, land
cannot be recycled. Mountains carved by
strip mines, wetlands dredged and filled, or
streams channelized can seldom be returned
to their former use or beauty. Land once
committed -to a use today is often unable to
support a different use in the future more
closely attuned to the prevailing national
values or goals." (75)

In-addition to this general acceptance of the value of
land, there has been a recognition and abhorence of
the inadequacy of chaotic, case by case, crisis - to
crisis land use decisions at all levels of government.

President Nixon noted in a letter to Senator Jackson:

"As a Nation, we have taken our land.resources
for granted too long. We have allowed ill-
planned or unwise development practices to
destroy the beauty and productivity of our
American earth. Priceless and irreplaceable
natural resources have been squandered. g*;'n*ily'.11.(76)
The Country needs this (legislation) ur

The need for Land use regulation is recognized not only
as a response to the "environmental movement", but also
as essential to the economic well-being of this nation...
The need is for a balanced approach. Land use planning
can be called "environmental Legislation" if, it is
defined as:

(75) Senator Henry Jackson, Senate Floor June 15, 1973, C ongressional
Record, (on that day). S 11270.
(7C)) r1r)-m-m-1-Ft.PP Pp-nr)-r+- Tn+pvini, Pinnny@+ Un L7;_1a7

"The aggregate of social and cultural conditions that
influence the life of an individual or1community.11 (77)

In short, the House Committee agreed,that the legis
lation considers the use of land for.various purposes
and is not proposing a non-growth policy. The weighing
and bal-ancing of goals of economic development, environ-
mental protection, and imporving social services requires
the process of planning from inventory to the projection
of consequences and a management system which can use,
information from the planning process to implement these
multiple,goals.

Although 90Y6 of land use decisions have purely local
impact, (according to American Law Institute), it is
necessary to institute a means whereby citizens can
participate in the decisions on land use which have
impact far beyond the jurisdiction and interests of the
local units of government., Someone has to bridge the
gap and relate urban to rural land use.

It is further recognized that without financial and
technicalassistance from the Federal Government, the
effort to upgrade land use decision-making will fail.
State and local governments, confronted with increasing
demands for costly services, lack the resources to
take a breath and plan for the future.

The "findings" section of both bills stated that the
development activities of the Federal government, which
have substantial impact on the use of land, need to be
coordinated and consistent with Stateand local govern-
ment policies and programs.

An urgent need that has become more evident since the
initiation of the land use bills has been for some type
of control over massive recreational homesite and
installment land sales developments. In response to
the scandals of "dream retirement investments" real
estate schemes, Congress has passed a major consumer
protection lawi The Interstate Land Sales Full Disclosure
Act of 1968 (PL 90-448)

It has become evident, however, that the protection
to consumers is not adequate to insure the consideration
of consequences on the environment and public services.
Consequently, Senator Nelson, Wisconsin, introduced an
amendment to S 268 to cover large-scale subdivision sites.

Report of the Committee on Interior and Insular Affairs,
House of Representatives, House Report No. 95-798.

Page 79.

In summary:

"The Congress finds that intelligent land
use planning can and should be a singularly
important process for preserving and enhanc.-
ing the environment, encouraging beneficial
economic development and maintaining condi-
tions capable of improving the quality of
life." (78)

3. Major Issues

It is obvious from the extensive legislative history
that there have been many issues related to this program,
some of which are still not settled.

a. The Relative Roles of Local, State and Federal Government

The Congress provides the framework within which the
States and local governments will add the substance of
a land use program. The role of the Federal government,
all agree, is to coordinate, finance and provide guidance
for State programs.

Russell Train expressed the consensus view of Federal
government's function at the hearings on the land use
measures in 1973:

"We are a coun@Lry of great diversity and we
should not try to force the land use decisions
of the entire Nation, covering land and oceans
into one mold created here. I think that what
we have here is a very revolutionary pi@oposal
to bring about a basic shift in political power
as it deals with land use in the U.S., but it
is a shift from local to State government." (79)

The Act requires a planning process and an implementation
program for controlling use of land in critical areas
and in areas impacted by key facilities; the assurance
that land use activities of regional or national benefit
are riot unreasonably restricted; and provisions for
citizen participation. Although there is an encouragement

(78) S 268, Title I, Section 101 (h) Findings

(79) Chairman Russell Train of the Council of Environmental
Quality Statement to Senate Committee of the Interior.

Paae 80.

of a "balanced approach" of local-state partnership,
the issues of who is to do what in various phases of
the program are left up to the States. None of the
proposed Acts grants the Federal government the right
to.control (zone--district, permit, etc.) the use of
private lands.

b. Sanctions

An issue associated with the relative roles of govern-
ment has been the debate over the degree and relation-
ship of the use of the "carrot and stick". The incentive,
all agree, is the granting of money for the planning and
creation of a program.

The debate is over the need for stronger conditions,
or the advisability of enforcing the provisions of
the Act by some kind of economic slap on the wrist.
Some of the other bills provided for a reduction of
other federal grant monies if states do not comply
with this Act--the so-called,"cro'ss-over sanctions."
S 924, the Administration Bill, provided for a reduc-
tion of 21% of State funds for highways, airports and
acguisition monies under the Land and Water Conservation
Fund. Although S 268 and HR 10294 do riot include cross-
over sanctions, they did contain the provision of grant
termination if theFederal review process shows that the
requirements of the Act for planning and program imple-
mentation are not fulfilled. Proponents for cross-over
sanctions are many, including Fred Bosselman, the author
of the "Quiet Revolution" and co-author of the ALI Code.
Bosselman argued that sanctions would be needed to help
strengthen the States' ability to deal effectively
with the myriad of conflicting local interests:

"With each succeeding year, more trade associ-
ations and special interest groups-from the
homebuilders to the wilderness advocates--will
try to use land use legislation as a vehicle
for establishing their favorite policies...
There will be a great temptation to avoid the
hard decisions that need to be made. Meaning-
ful sanctions in. the Fed eral legislation will
help accomplish the head-knocking that will
be needed." (80)

The opposition to cross over sanctions was based on the
contention that they would Garry the role of the Federal
Government.to the point of interference with State's
rights. Senator Hansen, R, Wyoming, stated that he
regarded the use of sanctions in land use planning "as
a termination of the right of the States to determine
their own destinies.$?.

(80) Fred Bosselman, Statement to Comm.-of Interior, Feb. 1973,
in Senate'Committee Re-port

Page 81.

c. Concern over Other Economic and Social Needs;

The need to consider other economic and social.needs was
already alluded to in the "needs" discussion. No one
ever claimed that this was "environmental protection"
legislation. But, the extent of promotion, or at least
non-blocking effect of this legislation on activities
such as mining, energy provision and,house building,
is increasingly an issue and is considered by some to
be too environmentally oriented.

Regarding mineral exploration,, the National Association
of Manufacturers urged that the policy section of S 268
should include:

"that it is a national land use policy to
encourage the development of adequate
domestic sources and adequate domestic
mining and manufacturing facilities sub-
ject to appropriate legal action... (it)
.should also recognize that because of
the hidden nature of mineral deposits, as
much land as possible should remain open
to exploration for minerals." (81)

The concern over the apparent current, impending, energy
.shortage surfaced at the Senate Committee hearings. Carl
E. Bagge of the National Coal Association and Howard L.
Edwards of American Mining Congress expressed concern
that pending legislation would not go far enough to
assure adequate fuel and energy resources. John.Loftis
bf Exxon stressed-that additional refineries would be
needed and urged a more rational policy with regard to
the siting of energy facilities.

This concern manifests itself in the criteria for develop-
ing National Land Use Policy found in both bills. The
bill states that such a policy should:

"encourage the conservation and wise use of
energy and other natural resources andinsure
the supply of such resources to meet the
demonstrable demand b,;ased upon such conservation." (82)

The House Committee saw the Land Use Planning Act as a
distinct aid in providing a kind of orderly recognition
of needs and resources that has been lacking.

"Siting refineries, shore facilities appurtenant
to deepwater ports, and power plants is a part

(81) Nati-onal Land Use Policy Legislation, 93rd Congress,
Library of Congress, p. 91
(82) 9403, HR 10294 and 9507, S268

Page 82.

of the comprehenisve land use planning
process HR 10294 encourages" (83)

A concern over housing must have been expressed at least
at the House Committee hearings,* because a rather inter-
esting addition to the "Findings" section was added to
the House Bill HR 10294. The concern is an issue which,
however subtly, is a part of all land use legislation,
debated:

"Existing State and local land use planning
programs and decisions often have reduced the
amount of land available for housing,have
limited the construction of housingand have
reduced supply and competition-in the housing
market, and that land use policy should en-
courage greater supply and competition in the
housing market to lower the cost of shelter
for people'of all income levels.:" (84)

This concern may be real but is a finding not well docu-
mented. The Senate bill, S 268 did not include this
"finding."

d. Inclusion of National Policies

Much debated among the witnesses before the Committee
and ori,the Senate floor was the issue of whether sub-
stantive Federal land use policies should be provided
in the Act.

Although the majority of witnesses opposed adopting such
a policy, there was considerable support sometimes from
unpredictable quarters, such as Exxon, whose Vice Presi-
dent, John L. Loftis said,

"Although we are of the opinion that State
governments and their delegates should
dominate the actual planning and manage-
ment for the use of land resources, the
Federal Government has a nondelegable role
to act in matters of truly national con-
cern ... In some instances, the activities of
State or interstate land use agencies may
impunge on or be at variance with the wel-
'fare of the.Nation as a whole. In such
instances, Federal policy must dominate
and thereby affect state and local govern-
ment decisions and private initiativ6. The

(83) Report of House Committee on Interior and Insular
Affairs, No. 93-798, P-30

A record of House hearings is not published in Congressional
Index; and the House Report does not quote any Real Estate
developer spokesman.
(84) Title I, Part A, Sec. 101; 10, 11 Page 83.

Federal role... should be to provide broad
guidelines or establish national goals to
inform state land use planners of National
needs." (85)

The three basic,arguments ational policies are that
without them: for n

(1) Certain national interests, such as national security,
energy supply, and environmental protection, could
be frustrated by conflicting policies adopted by
the. States;
(2) Inefficiencies could result from the de facto national
land use policy which evolves from a mosaic of fifty
different sets of State policies; and
(3) Such policies would.develop implicitly through in-
ference by those who comply with the Act and through
regulations by those required to.'administer the Act.

Arguments against the inclusion of national land use polic-
les are:

(1)- Because of the extraordinary diversity of the land
resources of our nation, any national land use polic-
ies would serve as "lowest common denominator" polic-
ies, which would frustrate rather than encourage better
land use planning and management. Policies designed
to meet the problems of the predominantly urban-and
industrialized states (eg. Illinois,.New Jersey) ,
would be inappropriate for predominantly rural and
undeveloped states (eg. Maine or Wyoming);
(2) National policies specifically addressing land use
would be too narrow in focus and, in fact, could
frustrate rather than assist the pursuit of national
objectives;
(3) Since land use regulation is a means to achieve a
whole range of national environmental, social, and,
economic goals,.and since these goals are already
embodied in numerous Federal laws, the national
interest is already protected by these laws; and
(4) It would be too hard to do. There is virtually no
consensus on the possible substance of national
land use policies (eg., some advocatelpreservation
of agricultural land, others contend that such pre-
servation is light of the subsidies program). There
was a national growth.policy report in 1972 showing
that a consensus on national growth and land use
policies will be difficult to form.

(85) Hearings before Senate Committee on Interior and Insular
Affairs, 1973

Page 84.

Both bills recommended an attempt to formulate a
National Land Use Policy.

e. Inclusion of Indian Lands

Another set of jurisdictional barriers to effective land
use guidance concerns Indian land. It became evident
during the 92nd Congress that there are,'within the U.S.
over 90 million acres of Indian Reservations,and other
tribal lands that would not be covered by the Land Use
Act as initially envisioned. Sometimes, especially in
the West where 50% ofthe land is Federally owned, these
lands are in checkerboard patterns with other lands; and
coordination with adjacent federal and private lands is
essential. 'Indian land remains largely unplanned and un-
regulated because State and local governments lack the
authority to develop land use policies and programs for
them; and neither the Indian people or the Federal govern-
ment wish to deny self-determination to the Indians by
stepping in.

The Senate bill provided for an assistance program to
allow the Indians to plan and manage their land.

The House Committee uncovered a number of "factual and
legal" problems which led it to "reluctantly" propose a
2-year study of the problem before assisting in actual
planning and zoning problems.

f. Public Lands

At first, it was argued that it may be best to leave out
public lands from this Bill, since their regulation is
already covered by numerous statutes and administered
primarily by the Bureau of Land Management I which is
undergoing reorganization and re-examination of all of
its authority.
it became evident (as in the case of Indian lands) that
without coordination of Federal and State-owned lands
with the new land use system over such matters as
critical areas, the whole program doesn't make sense.
After all, the planning process is based on the recog-
nition of the need to relate the use t.o neighboring
lands.

This is especially'true in the 11 Western states, where
the proportion of often scattered Federal lands varies
from 29% in Montana-and.Washington to 95% in Alaska.

The Senate bill, S 268, provided for a means of re-
solving conflicts between uses on Federal and adjacent
non-Federal lands by an ad-hoc joint Federal-State
committee, appointed by the Secretary or a Governor. The
House bill went much further. It spelled outpolicies for
public lands and listed requirements.for the planning
process for Public Lands.

Page 85.

g. Effects of Property Taxes and Property Owners

The impact of land use regulation, both on p roperty
values and property taxes, was an issue debated and
acted upon by amending the bill on its path through
Congress.

Both the House. and the Senate committees responded
to the concern over loss of local revenue by requiring
that the plan consider:

"the impacts-of the State_programs and-activities@
land use policies ... programs ... developed pursuant
to this Act on the local property tax base and
revenues and. on the rights of private.property
owners."'(86)

Additionally, a study of the relationship between govern-
ment tax and land use policies was ordered by the Senate
bill.

The concern over the protection of the rights of property
owners from the possible effects of land use controls
is certainly not new in the U.S. The Committees were
reminded that the Constitution prohibits the taking of
Property without just compensation (in the Fifth Amend-
ment); and that such a prohibition subjects any govern-
mental regulation of private property to review by the
courts. Committee members acknowledged that, although
the line between regulations and confiscation has not
been drawn with the precision of the draftsmen's pen,
the extent of protection of property rights should not
be affected by this Act.

The Committees also considered a suggestion that the Bill
contain new authority to provide for compensation to land
owners claiming loss of property value. This was rejected
due to a number of apparent difficulties.

First, the police power of the state over land use was
first invoked and still used to protect and enhance
property values. The value of a piece of properE-ymay be
diminished by the use of neighboring property. For
example, residential lot prices are enhanced by the police
power prohibition against the use of these lots and
neighboring lots for tanneries, pulp mills, slaughter
houses, etc. It was the opinion of the majority of
the House Committee, at least, that "land use planning
undoubtedly will enhance the value of the land rather
than diminish the property values, particularly in the
long run." (87)

(86) S 268, Sec. 202, (14)

(W) House Committee report p. 33

Page 86.

Second, the proposed amendment would have authorized
flany person having.legal interest on land, of which a
State has prohibited or restricted the full use and
enjoyment" to pet,ition.a court to determine whether the
prohibition diminishes the value of the property and
"if it is so determined, full and adequate compensation
of the amount of loss shall be awarded therefor." This
would have required the state to assure adequate funding
for payment of such claims-as a condition for eligibility
for land use planning grants.

The Committee tu rned down this "compensation" provision.
The was that the present constitutional frame-
work already covers the problem; further, the adoption
of the amendment would more than likely defeat the pur-
poses of the Land.Use Planning Act because no state
could guarantee funds sufficient to satisfy such claims
and continue to meet other responsibilities.

h. What Constitutes "Critical Areasil
There was considerable disagreement on who should designate
critical areas and how specifically they should be defined.

Both the House and Senate bills intend to leave the con-
crete definition of characteristics to the State. Both
Bills list four basic categories of critical areas:

-Fragile or Historic Lands:

Where uncontrolled or imcompatible,developments
would result in irreversible damage to important
historic, cultural, scientific, esthetic,values or
natural systems, such as shorelands, rare ecosystems,
geologic formations, and significant wildlife;

Natural Hazard Lands:

Where uncontrolled or incompatible development could
unreasonably endanger life and property--floodplains,
weather disaster-prone areas, and areas of unstable
geologic activity;

Renewable Resource Lands:

'Where uncontrolled or imcompatible development would
endanger future water, food and fiber requirements,
such as aquifer recharge areas, agriculture or
forest lands; Other such additional areas, the
State determines significant.

Page 87.

An environmental studies professor at Dartmouth,,Dr.
Gordon J. McDonald, feels the definition leaves too much
descr 'etion to the States in determining areas to be
designated as critical. He felt there should be a
requirement that the Secretary of Interior,develop
criteria for critical areas, within 3 months of enact-
ment. Industry representatives on the other hand, said,
that the definition was too broad. The American Mining
Congress said that,, according to the legislative defin-
ition, "it is possible for,the entire Nation to be
designated as an area of critical environmental concern."
The National Association of Manufacturers objected because
it saw that the definition could possibly encompass
every suitable industrial site.

So far, there have been no changes in the definition.
The Committee purposely left them incomplete in accord-
ance with the purpose of the Act to improve the States'
y to devise and implement their own land use
policies.
abilit

Location of Administration

The allocation of functions for administering this Act
within the Federal bureaucracy must surely take first
prize for boggling the mind.

The Act requires that sonteone set,and promulgate guide-
lines for the Federal and State agencies in dealing with
land use, determine eligibility by reviewing States'
plans and programs, and authorize the granting of the
appropriated money. In addition to these, the Federal
government should, itself, maintain land use information
data, sponsor a great many related studies aimed at a
National Land Use Policy and resolve conflicts that arise
among States and the Federal Government.

The Senate Bill, � 268, sets up what may be called a
"lead agency", designated as the "Office of Land Us.e
Policy Administration" within the Department of Interior.
The idea was to insure the absence of the mission-oriented
bias which any existing office or bureau may already have.
"Confirming the "concept that the central mission of the
act is neither environmental protection nor economic develop-
ment.) The House Bill leaves the Bureau designation up to
the Secretary of Interior. At any rate, the Department of
Interior would be the lead agency.

Interagency Board

Both bills set up an interagency board with representatives
from Federal agencies having some land use functions,
which reviews guidelines, reviews State Planning and
program proposals and sponsors related studies.

Page 88.

Guideline Promulgation

The Senate bill designates the Executive Office of the
President to submit proposed guidelines to the Secretary
of Interior, the Interagency Board and the various
review advisory boards ... then the Secretary promulgates
the guidelines..

The House bill picks the Council of Environmental Quality
to issue guidelines, have them reviewed and then again
promulgated by the Secretary. The House bill also adds
a Congressional review and comment power of 60 days. If
no comment from Congress within that time period, then
it is deemed accepted.

Level of Funding and Matching Ratio

Another principle issue raised at hearings concerned the
amount of Federal funds required and the distribution of
these funds over time. The 92nd Congress originally
proposed $100 million each year for 8 years in S 632.
That was decreased, by Administration amendments, to
$170 million over five years ($36 million each year).

Senator Jackson and others fought back. They called the
Administrationl,s recommendations "woefully inadequate"
pointing out that such a low sum of money divided among
50states during the first few years is not much incentive
for them to establish strong land use programs. The
Governors of the states also fought for decent funding.
Governor Wendall Ford of Kentucky reminded the committee
that."good land use planning does not come cheaply."

The total proposed authorization in each bill in the
93rd Congress is $100 million a year for 8 years, with
a differing percentage of funding.

4. Summary

This analysis of the National Land Use Policy Act was pre-
pared while the legislation was pending. Ifa similar bill
is passed in a future session of Congress., it will be a
major and innovative break-through. The formulation of
this legislation represents this nation's continual struggle
to achieve the objectives of high quality of life ' in a
milieu of rapid change and complexly interwoven economic and
environmental problems, without infringing upon the constitu-
tional and traditional rights and responsibilities of the
state and local governments and their citizens.

Page 89.

it is reasonably certain that a National Land Use Planning
Bill emerging from Congress will not do any of the following:

- It will not mandate, require, or allow Federal Planning
or zoning. The federal.government does not and will not
have authority to zone state or privately owned lands;
- will not permit a substantial increase in Federal authority
over state and local decisions concerning the use of State
and local lands;
- will not specify for the states how much or what specific
pieces of land must be regulated;
- will not require the state to directly administer all
aspects of land use guidance;
- will not restrict the state to specific techniques of land
use guidance;
- will not alter any land onwer's right to seek judicial
redress for what the regards as "taking" of property;
- will not include in its allocated funds money fordirect
acquisition of land (such funds are included in the Water
and Land Conservation Fund passed by Congress under other
Legislation).

It can be anticipated that the bill that emerg ps from the
political process of Congress will do the following:

- Enable and encourage the states to exercise their states'
rights of land use control over 5 categories of critical
areas and uses with clearly more than local impact;
- It will encourage a balanced and rational planning process
and program which protects the environment while assuring
that adequate social services and opportunities, such as
housing, recreation, and reliable energy systems, are
provided in the framework of a healthy economy;
- It will offer the states flexibility in designing its
program in harmony with its tradition. While encouraging
delegation of some authority to the local level, the
choices of assignment of.authority in administering a
.program are left to the state's discretion;
- It does enable states to issue guidelines for local author-
ities to assure, for example, that one community does not
set a massive industrial park directly adjacent to another
community's or state's recreational park or wildlife refuge;
- It will also offer the state considerable flexibility in
defining critical areas or what constitutes large scale
development or regional benefit developments;
- It will provide Federal review to qualify for assistance
and assure that the planning process fulfills the require-
ments of the Act, that it is comprehensive enough and that
the means exist to effectively implement the plan;
- It will at least establish the desirability that Indian
lands being regulated by Indians coordinate with the State
program;

Page go.

And finally, it will seek to remedy the patchwork, over-
lapping, and often confusing patterns of land use regula-
tion which have evolved through the years at the Federal,
State and Regional level, as a result of piecemeal land-
regulating legislation and other environmental protection
measures.

Even though there are many states attempting to design com-
prehensive land use guidance systems, a National Land Use
Planning and Policy Act is essential. The Federal Govern-
ment has to provide the necessary funds, quality guidelines,
and the coordination bet 'ween Federal and State policies. The
isolated approaches of the states will not guarantee that
the.use of lands are in the best interest of the nation as
a whole.

C. OTHER BILLS ALIVE IN THE 93RD CONGRESS
There are'two bills reported out o-fby House' and Senate
Committees with a strong likelihood of passage:

S H25, HR 11500 Surface Mining Reclamation Act

The Senate version sponsored by Senator Jackson is similar
(but not identical@ to the House bill sponsored@by Mr. Udall
et. al. Both require the states to set up a program.to pre-
vent adverse affects to society and theenvironment from
surface coal mining. The state's program must include
@regulations, enforcing sanctions, d permit system, and
performance bond requirements.

The measure was weakened in committee and is likely to undergo
more changes. It is criticized by environmentalists as too
weak and by the coal industry as too strong.

S 3066 Housing and Community Development Act of 1974

Sponsored by Senator Sparkman, among other community
development activities, this measure includes major changes
in the 701 comprehensive planning program..

This'bill' provides grants which would be..funnelled to planning
departments and to general purpose units of government. To
qualify for grants, the plans must include a five year capital
plan and a housing plan. The matching formula for granting
Would be increased from 66 213Y6 to 80%.

This measure passed the Senate on March of 1974 by a.vote
of 76 11..

Page 91.

VII. EMERGING STATE LAND USE GUIDANCE SYSTEMS

In recent years there has been a great deal of activity
.among the states in response to the need for more control
over land use in jurisdictions larger than the local level.

Instead of a comprehensive survey of what every state in the
union is doing (88)the emerging patterns will be illustrated
according to the analytical variables used in this paper. . I
Actual state guidance systems will be examined with the focus
on jurisdiction and on allocation of function, both vertically,
along levels of government, and horizontally, on the state
government level.

The enclosed large chart in the back of this report illustrate
the jurisdiction and assignment.of function of the various com-
ponents of the system. (The chart is printed on both sides,
the headings on the top age can be used for the reverse side.
by folding the bottom up@
There are many bits and pieces of legislation (in every'state)
which relate to land use guidance. Many states also have the
beginnings of a comprehensive planning program but no apparent
effective method of implementation. This section attempts to
analyze those repr6sentative systems which have most, or all,
of the components of the land use guidance system as defined-
earlier.

A. EXTENT OF JURISDICTION: CHOICES

Many states have recognized the imperative to exert some
guidance over development in certain critical geographic
areas and over the type of developments which have a larger
than local impact.

It should be remembered that some of this Legisl ation is
not easily categorized into the recently developed term-
inology as found in the ALI Code and the National Land
Use Policy Planning Act. Some do fit "critical area" or
.some variation of the "developments of state-wide signifi-
cancel' but most, especially the comprehensive statewide
systems@, overlap the categories.

1. Critical Areas

The recognit ion of and concern for the-critical nature
of shoreland areas has led to the emergence in many states
of some type of shoreline or wetland control program. Lands

(88) Most up to date information can be secured from Land Use
Planning Reports 2814 Penna Avenue, H. W., Washington,
D. C. 2007

Page 92.

related to water have been the first areas to come under
"critical area" designa, tion.

The attached chart illustrates the coastal management
program in California, the Shoreland Act of Wisconsin,
Shoreline Zoning in' Maine, and the Coastal Zone Act of
Delaware. The definitions of jurisdictions, or what
constitutes a shoreline vary from California's "highest
elevation of nearest coastal mountain or 1000 yards" to
Wisconsin's 1000 feet of navigable lakes or ponds and
300 feet of a river. The Delaware Statute doesn't leave
any doubts; it verbally spells out thegeographical bound-
aries that shall be in the jurisdiction of the new law.
Maine designates 250 feet from normal highwater marks
of all bodies of water as areas for mandatory zoning.

In all cases the state sets guidelines and standards
to be'followed. Allocations of functions vary but
the state retains enough power to assure the adoption
of ordinances at least with the minimal standards.
Delaware's Statute expressly,forbids any further heavy
industry on the coastline. "Heavy industry" is defined
as involving more than 20 acres; or@ using such items as
smokestacks, distillation or reaction columns or waste-
treatment lagoons; and which has the potential to pollute
when.equipment malfunctions or,human error occurs.
Specifically excluded from the coastal area are oil refiner-.
ies, pulp and paper mills, chemical plants, offshore gas,
liquid, and solid bulk-product transfer facilities. Al-
though this Act regulates a "critical area" (the shoreline),
it is also concerned with "large-scale de velopment".

Coastal or shoreline management systems are enacted in
California, Connecticut, Delaware, Georgia, Maine, Michigan,
.Minnesota, Rhode Island, Texas, and Washington. (89)

The related wetlands control program is illustrated by -the
Mayland Wetlands and Reparian Rights Act. The Act covers
all private or public wetlands subject to tidal action, to
a state guidance system, where the state inventories
wetlands,and issues guidelines and permits for use. Some
type of control is in effect in at least Connecticut,
Delaware, Florida, Georgia, Louisiana, Maine, Maryland,
Massachussetts, Michigan, New York, North Carolina, Rhode
Island, Virginia, Washington (in Coastal Zones), and Wisconsin.
Many states set guidelines but expect the local level to
do the administration.

(89) Land Use Planning Reports, September 1973
For a thorough review and comparison of coastline and
shoreland programs see: "A Description and Analysis of
Coastal Zone and Shoreland Management Programs in U. S."t
Earl H. Bradley, Jr., Sec. Grant Program,. University of
Michigan, March 1972.

Page 93.

2. Large Scale Developments of Statewide Significance
Maine's Site Location Law (38 M.R.S.A. 9 471-8) is a
statute that regulates developments of statewide signifi-
cance. It is not, however, a total land use guidance
system, because it is not based on a comprehensive plan.
Any commercial or industrial development, (except state or
state aid highways), which may require a water pollution
license or which occupies an area larger than 20 acres
or a str@Tc_ture which contemplates a ground area of more'
than 60,000 square feet on a single parcel, requires a
permit from the Board of Environmental Protection. The
decisions are based on four basic criteria spelled out in
the statute.

There are a number of states which regulate activities such
as Power Plant Siting and Strip Mining, both certainly
activities of large scale with statewide significance.
Minnesota's Power Plan Siting Act gives authority to the
Environmental Quality Council to develop plans and issue
guidelines for siting, and to give permits to locate any
generating or transmitting facility for electricity, which
has a capacity of 50,000 w or more. This too is a single
tier system - an activity of statewide significance, with
total state control. Other states with some (though not
necessarily the same) Power Plant site regulations are
Connecticut, Florida, Maryland, New Hampshire, Oregon, and
Rhode Island (coastal only). Maryland has several mining
acts which appear to exert strong control over the restor-
ation of land after strip mining; it is not, however,,in
the strict sense a total land use system. Permits are
required to start a mining operation; but planning of ad-
visable sites for this activity, based on an overall planning
effort, doesn't seem evident. There are at least 26 states
with strip mining legislation on the statutes.

3. Special Purpose Regions

Another type of land use guidance system emerging has been
the "Regional" jurisdiction, neither strictly state nor
local. Regional lines can cross state boundaries or-include
subregions within the state, crossing traditional municipal
lines. The Adirondack Park Agency is one of the most com-
plete, (longest) Land Use Guidance,Systems on the books.

The jurisdiction is all of the private and publi c lands in
a region previously defined by statute as "Adirondack Park."
The statute is noteworthy for the number of categories of
land use districts and classification of developments. There
are two classes of developments or projects and six types of
districts. Each class of development, A or B, is defined
differently for the six districts. Besides the six districts#

Page 94.

listed on chart, there are special restrictions for shorelines
in the area.

The agency has to prepare plans, subject to review by the
Board of Review, composed of county appointees. The agency,
using.the lengthy criteria in the statute, designates the
districts, approves local development plans, and approves
Class B developments on all districts. There are interim
provisions in effect until all the plans and designations
are complete.

Other regional agencies.with land use management functions
being closely watched for effectiveness include:

the Tahoe Regional Planning Commission, with jurisdiction
over 500 square miles in California and Nevada. It sets
standards, but does not enforce them. Finances come from
-constitutent counties, federal grants, and the state legis-
latures.
San Francisco Bay Conservation and Development Commission
has representatives in 9 constituent counties, 4 constit-
uent cities, 4 state agencies and 7 residents, appointed
by Governor. It has enforcement powers with double veto
permit. Double veto permit means bothlocal government
'The
and regional commission must approveproposals.
Commi-ssion can make further restrictions and specify
conditions. It.can also acquire land for public use.
Hackensack Meadow Land Development Commission (New Jersey)
is one of the most recent agencies vested with all the
functions of land management systems. It is free of local
domination. 6 members, appointed by the Governor, and the
Commissioner of the State Department of Community Affairs
serve on it. Local agencies do not have permit function,
only review powers. Local codes (over regional jurisdiction)
must be in accord with the plan and minimum standards estab-
lished by the regional agency. This regional Commission
is financed by a combination of federal and state funds.

4. Statewide

Although many states have bits and pieces of old and new
legislation for guiding the use of land in larger than local
areas, not many have a comprehensive system which assures
that all significant types of.development and utilization
of landanywhere in the state is guided by a state agency,
or its delegated surrogate, to comply with a set.of state
policies and coordinated comprehensive plans. Hawaii,
Vermont, Florida, and Oregon have such statewide systems in
various stages of evolution and strength. Hawaii's has been
around since'1961. Vermont passed its landmark Act 250
in 1970. Hawaii's jurisdiction is statewide - all lands in
the state are districted into 4 categories:. urban, rural,
agricultural, and conservational. The Land Use Commission
set standards.for determining the boundaries of each district
with some criteria (indicating state policy) spelled out in

Page 95.

the statute. Forexample:

... in establishment of the boundaries
of agricultural districts, the greatest
possible protection shall be given to
those lands with a high capacity for
intense cultivation" (90)

Vermont's jurisdiction extends to all commercial or industrial
developments larger than 10 acres or housing development of
more than 10 units. Where -there are no local ordinances a
development of greater than 1 acre comes under the state's
jurisdiction. Additionally, the Act provides for interim
and permanent land use capability and.development plans,
to be prepared by the Environmental Board and approved by
the Legislature.

The adopted plans of regional and municipal agencies must
be considered in drawing up the state plan, but there
doesn't seem to be any means of assuring conformity of
local plans with the State plan.

Florida's Land and Water Management Act of 1972 follows
fairly closely the American Law Institute Model Code. The
State can designate areas of "critical state concern" and
developments of "Regional Impact." The state sets guidelines
for'developments of Regional Impact and has a review and
approval system to assure that Local Land Use Plans are
prepared.

Oregon's Senate Bill 100, passed in,1973, provides for
ultimate jurisdiction over activities of statewide signif-
icance and areas of critical state concern. Considerable
coordinating capability is given to the Land Use Agency
by preparing state-wide planning goals and guidelines and
then reviewing local efforts to assure conformity and com-
pliance. Furthermore, local and county governments must
prepare comprehensive plans and ordinances. If they don't
have one that meets the state's approval, plans and ordin-
ances, one will be prescribed by the state. The act 'also
pulls under its review umbrella the Oregon Coastal Conser-
vation Commission, which was the Coastal Management Agency
before the statewide system was instituted. It should be
noted that Oregon's "developments of statewide significance"
is very weak covering only public developments, such as
transportation, sewage and solid waste disposal systems,
and public schools, but not private developments.

(90) Hawaii Revised Statutes, Sec. 205-2

Page 96.

soy, 90) OW aw 00) am ow W
'NHM(r ACT 197'
URBAN RURAL AGRICULTURAL' CONSERVATION
S Designated into Districts by Lan d Use Commission

L.U.e.-Issue
Regulations & Standards
T Regulations
and Guidelines
E I s.sue Permits by the Department
of Natural Resource.,

Grant Variances, Special, Permits Department of Natur@
or Amendments Resources
Issue Permits and
Grant Variances

L.U.C. Violation
receive, report & prosecute
4-)
000
C County Planning Comm. or Zoning Board
Receive Applications, Issue Permits with
0 State Review

ENFORCEMENT BY APPROPRIATE
COUNTY OFFICIALS
T
y

Additional significant developments (conceivably private)
including developments and areas of critical importance
can be recommended by the Commission to a legislative
committee. These additionally designated jurisdictions have
to be approved by the Legislature.

Oregon's law, then, has the capability of being very com-
prehensive, due to its strong control over local and county
comprehensive plans, and the potential ability of extending
its state-wi,de jurisdiction to more, large scale developments
and critical areas.

Many st ates are involved with studying their land use systems;
Other states' which are in the process of implementing legis-
lation includes Washington and Colorado.

B. ALLOCATION OF RESPONSIBILITIES

The emerging solutions to the problem of who is to,administer
the various components of the system will be examined accord-
ing to the "levels problem," the'allocation or functions
among local, regional and state governments and the distri-
bution of the state responsibilities horizontally among the
state government agencies;

1. Distribution Among Levels of Government

An attempt has been made to compare by diagram the allocation
of functions in the four types of statewide systems in the
proposed ALI model code, Hawaii, Oregon, and Vermont. This
task was complicated by the variation among the states in
jurisdictions. Instead of one diagram, the four diagrams
found in the following pages show the jurisdictions over
which the state extends control, (horizontal heading),
levels of government (vertical), and the components of the
system. The various arrows are to indicate inter-relationships
between the levels. All of the systems are "three-tiered,"
(state, regional and local) the variation is the amount of
powers allocated to each.

a. Hawaii

Hawaii's system was not only the first, but it is perhaps
the simplest to understand. (It should be remembered
that Hawaii's historical tradition and social framework
and land ownership patterns are atypical.
The State Land Use Commission (L.U.C.) designated all
of the land in Hawaii into one of four districts: Urban,
Rural, Agricultural and Conservation. After the initial
designation, the issuing of guidelines, standards, and
permit functions for theconservation district only is
assigned to the States' Department of Natural Resources.

'Page 97.

VERMONT

S Board Adopt Interim Permanent Capability Land Use
Capability and Develop- and Development Plan- Plan
ment Plan Includes
T, District
A
Receives Petitions Nod
T for Boundary Change
E State Board Legislative
Receive Inter-Agendy and Governor
Approve Review of Review
Permits App lic ations.
D
ei t'hpr Or

1h
Review by
District
ommission District Commissi6n
T. C
Receive
R Approve Attach
Conditions to
Permit

Regional Review of
6ommission

Review By
Planning
Commission

A Permit'
Approval
L Review

Page 97a

The State Land,Use'Gommi.ssilon.issues regulations and
permits for the other three districts. The county
planning commission or zoning boards or agencies also
issue permits with state review. Enforcement and
inspection-is delegated to the county officials.

b. Vermont

Vermont's,system is fairly easy to chart because currently
the jurisdiction is based on development activity only.
The Environmental Board adopts the Interim and Permanent
Development Plan, (upon approval by the Governor and
Legislature) and;sets up land*use districts. Permits for
development are granted by the nine District Environmental
Commissions set up by the state. Regional Commissions
and other agencies of the State are notified,of applica-
tions and have review and comment functions. Petitions
for changes in district boundaries are channeled to
the State Environmental Board which may grant them after
review for compatibility with the Capability and.Develop-
ment.Plan.

c. Oregon

Among all the models discussed, the new Oregon Land Use
Bill (soicalled SB100), gives the most power to the State.
First and most importantly the law has provisions which
assure that the State oversees and coordinates all land
use by requiring that land use activities of local
jurisdictions be according to local plans, approved by
the state.

The State establishes goals and policies; helps with
inventory of data, approves action of the Coastal Comm-,
ission and assures that comprehensive plans exist in
each county. The State Level Land Conservation and
Development Commission recommends designation of critical
areas to the Legislature and once so designated assures
the standard setting and permit functions for-these areas.
Developments of statewide significance are also defined
by the State and once these definitions are,accepted by
the Legislature, all applications for permits are acted
upon by the State Commission. The enforcement and field
inspection-function are expected to be performed by the
counties. Prosecution of violators may be referred by
acknowledgement to the State.

Not shown on the chart,is a strong citizen participation
requirement that each county must submit a program for
citizen involvement in preparing, adopting, and revising
the comprehensive plans. Among other requirements is that
each county will have a citizen advisory council.

Page 98.

-OREGON
ALL LANDS@ AREAS OF CRITICAL ACTIVITIES OF
STATE CONCERN STATE-WIDE
SIGNIFICANCE
S LCDC Designate
LCDC: Establish Goals LCDC Recommend
Prepare 'Inventories Designation to such Activities
Prepare Statewide Legislature
Planning Guidance
Model Ordinances
A Leaislative Committee Legislative Committee
Review and Recommend Review and Recommend
Approve Actions
IT of OCCC *SIysItem not yet Issue .Planning Siting"
E Established Permit
00 %W
Review May prescribe Action
Comp. a omp. Plan on
Plans if non existsl Vi lators
Action on
CDC violators
ear of Comp. Plan
eals
ILO C Review
Prepare, Adopt Applications
Comp. Plan
a;

+:
Coordinate all
Land Use
N
Action

Violators-
iT on
ly

Prepare,
A
dopt
Comp. Plan,
@Ac,
V1,

CD
@e a
fu

ICA
A
IL
LCDC: Land Conservation
and Development Comm.
OCCC: Oregon Coastal
Page 98a Conservation Comm.

d. American Law Institute Model Code

The American Law Institute, Model Land Development Code
(ALI Code, Articles 7-9)(51)is the most complicated, due
tio the varied jurisdictions considered and the heavy
emphasis on home-rule provisions.

'First of all there are four jurisdictional categories:
All lands, critical areas, developments of regional
importance and large scale developments. The State
Land Development Agency (not specified by.name)is to
prepare Land Development Plan for the State; designate
and define boundaries of critical areas; define and
issue guidelines for developments of regional signif-
icance and adopt re lations according to criteria
(usually in statuterfor large-scale developments.

Of all the systems this model code gives the'local
municipality themost power. After the State makes sure
that every local municipality does have a land develop-
ment agency, and where the municipality does not have
one, the State has authority to create one, the local
agency then must prepare local land development plan;
adopt rules and ordinances for areas designated by.the
state as "critical" and receive development applications
and issue permits for all developments. The State
reserves the checking functions such as review of the
ordinances written for critical areas and review and
comment on application for developments of more than
local significance. Additionally the State has the
power to adopt regulations for critical areas should
the local agency fail to do so. The important feature
is that the administration of all land use categories,
from receiving application to granting permits to
enforcement, are left to the local land development
agengy. Appeals from the decisions then go back to the
State to be heard by the State Adjudicatory Commission.
The Code recommends that this Commission consist of five
Governor appointees with no specific qualification except
that no appointee may be'a member of a local land develop-
ment agency (from which it hears.appeals!)

e. Analysis

If lines of notification, review, and complexity of
inter-relationship were the criteria for excellence,
the'ALI Codeclearly wins. One might also view the
lines and arrows as an alarming indication of the whole
system being wrapped up in a twine of red tape.

(91) Tentative draft, No. 3, 1971 - The first official draft has
been published since the writing of this paper.

Page 99.

am, owl M, -M on: no low 11W. so
ALI -CUDE
ALL LAND CRITICAL -AREAS DEVELOPMENTS. OF LARGE-SCALE
REGIONAL IMPORTANCE DEVELOPMENTS

Prepare Interim
S Land Development Designate and Define What Adopt Regulations
Plan Define Boundaries Constitutes Accordingto Criteria
T Such Activity in Statutes
repare State
A LanFd Development Plan Review Issue
Guidelines Publish List of
Applications
Review
Local LDP's C

P, (A
C) (+ U Review
State Adjudicatory (D W
In C+ Cr.
Commission H--ar @5 (D C
rc
APPEALS
1)

ri
57- +)

must haVe local
Land Development
0 0
Agency; if none
exists state create
one. co

P@
P. P@ Receive
A P@
Prepare Local <4 Application
Land Development
L Plan Adopt Rules, Permit Issue
Or'dinances Process@ Permits T.-,.-,uP' Permits,
repare
[fan De,

since the aesthetics of the visual diagram are not
.exactly a valid criteria for judging the effectiveness
or administrative ease of a system one should be
cautious about making judgements based on lines in a
diagram.

Keeping within the framework of the "-levels" problem
two questions are,posed:

- Is there a consensus or baseline of assumed
functions for each or any level,
- What problems are-emerging from the.solutions?

(1) Consensus For Local Level

The emerging consensus seems to be that local planning
agencies should continue (and improve upon) planning and
administering land use controls in their own jurisdiction.
They are best suited to control and enforce local laws.

A critic of the ALI Code, Clyde Fisher, feels that ALI
delegates too.much to the local level. He feels the
states should have one stop preceedings, especially on
utility proposals, to prevent too much delay in such
an urgent area. He also feels that most local officials
would prefer not to have the headache. (92)

Even where there is a state level permit system the
need for a local permit from a local unit with zoning
authority is not eliminated. The Vermont statute
ACT 250 says "the permit required shall not supercede
or replace the requirements for a permit from any other
state agency or municipal government." This is the so
called "Double-Veto" provision, that is, if a municipal-
ity doesn't want a development which the state approves,
the application is denied.,

(2) Consensus for Intermediate Level

Hawaii assigns considerable powers to the county-, which
sets regulations and grants permits jointly with the
state in the Urban Zones. The county can also grant
special permits in urban, rural, and agricultural zones.
Enforcement is also up to the counties.

The Oregon plan, emerging from many political battles
over regional agencies, COGS, and counties, presently
requires counties to do comprehensive planning, receive

(92) Fisher, Clyde, "A Giant Step Forward ..... ASPO Annual, 1971

Page 10

applications, review them, and'advis.e the state on
permits for activities-of statewide significance.
The enforcement is handled jointly by the county and
the state.

As shown on the charts some land use systems with less
than statewide jurisdiction also have regional or county
admin,istration. The California Coastal Management System
is totally administered by a Regional Coastal Zone Comm-
ission.

Wisconsin's Shoreland Management Program reflec-Es the
pattern of other shoreland programs in the midwest. The
state declares by statute its policy of considering shore-
lands a "critical area." It may-issue model ordinances.
The state's role is a guiding one. -The county, however,
is assigned the primary responsibility for administering
the law. If the county, or the municipality, does not
have an approved ordinance and plan then the state,
after a set period of time, can impose an ordinance.
Except fo'r the self-contained Regional Land Use Guidance
system, such as the Adirondack Plan, the powers assigned
to the "new regional" agencies are still advisory only.
ALI makes the creation of Regional Land Planning Agencies
optional; if there is one it can review local land develop-
ment plans. In Vermont regional planning agencies also
have review.and.advisory input bothlin local and state
.comprehensive planning and the permit. processes.

District Plan of Vermont is an intermedi ate level of
government that sFr-a=es somewhere between counties
and regional agencies and the state government. This
is.Vermont's answer to the home rule vs. state authority
dilemna. The state is divided into 9 districts, mostly
along county lines (3 comprising more than one county).
The district commissions are appointed by the Governor,
funded by the State, have powers of hiring staff and
setting up offices. These are really districts of
the State Environmental Commission, with the dec-ental-
ized feature of having closer knowledge of the land
and.affording more input from local and regional
planning commissions. The District Commission has
permit and enforcement function. Appeals from its.
decisions are heard by the State Environmental Commission.

Consensus for the State Level:

"There is recognition that states must have the respon-
sibility to control land use decisions that affect the
interests.of people beyond local boundaries if critical
environmental lands are to be protected and if develop-
ment.needed by a regional population@is not to be blocked

Page 101.

by local governments." (93) All models.agree that the
following should be state functions:

The State:

sets a framework of goals, policies on growth, water
use, wilderness etc., probably through a policy plan
or comprehensive plan--Oregon and Vermont aiming for
.policy plan;
needs to coordinate and review local plans to assure
that they relate to state and regional goals;
can set minimum standards or uniform codes for building,
subdivision-, and critical areas. This could be a two-
tier system broad controls and finer stringent.controls
locally;
if the local1level doesn't adopt its own ordinances,
the state can impose its own.

In all cases where there is a joint system, (state
regional - local) of if functions are split, a notice
procedure is included so the state can review any regu-
lations or permits issued for consistency with state
goals and be a party in any hearing procedure. This
accounts for all the arrows up and down on the enclosed
diagrams.

2. Distribution Among State Agencies

The currently prevailing situation among the states is that
land use regulations have come along piece by piece and have
been assigned to whichever agency seemed best equipped to '
handle them. The large chart in the appendix is not too reveal-
ing of where land use functions are; it just shows where the
newer, more comprehensive systems tend to.get assigned-The
rationale is riot easily detected. Perhaps, when in doubt,
a new program starts off in the.Executive offices of the
Governor. In New York State, for example, the overseeing of
the Adirondack Park Act was assigned to the Executive office
of the Governor, even though there was a State Department
of Environmental Conservation, with divisions of Planning
and Research, Environmental Management, Bureaus of Land
and Forest, Fish and Wildlife, Marine and Coastal Resources,
and aesource Management.

Florida split the administration of its ALI Code-modeled
Environmental Land and Water Management Act between the
Governor's office and the State Planning Office. The State
Planning Office approves local plans, recommends areas.of

(93) A Citizen's Polic Guide to Urban Growth, Extracts from

Page 102,

cr itical state concern, sets guidelines, and determines
if the proposed development is of regional impact. The
Administration Commission which is the Governor and his
cabinet, designates areas of critical state concern (except
for theBig Cypress Area which was so designated by Legisla-
ture) and accepts the guidelines for Regional Impact Develop-
ments. The State Land Planning agency can take proper
judicial,steps that local Land Planning Agencies' have
acceptable local land planning and.ordinances. It is evident
that besides all the lines of communication between the
local and.state levels via notices and approval procedures,
there are also many horizontal lines of review and approval
on the state level. It should be noted that Florida also
has a Department of Natural-Resources with divisions of
Marine and Interior Resources and Recreation and Parks.

Hawaii's Land Use Program also operates in two departments
of the State: the State Land Use Commission is under the
Department of Planning and Economic Development; and the,
Conservation Districts are administered by the Department of
Natural Resources.

Many states assign the planning component of the Land Use
System to the State Planning Office. I -n addition, Delaware
assigns-the administration of its fairly strong Coastal Zone
Act to the State Planning Office.

The Departments of Natural Resources are starting to emerge
as a lead agency of Land,Use guidance. Specific land
related programs, such as shorelines, wetlands, and mining,
are assigned to this department. Kansas' study proposes
a Division of Land and Water Resources in the Natural
Resources Department.

Vermont's allocation of its comprehensive statewide program
to the Agency pf Environmental Conservation seems to be
another, though less frequent, pattern. Minnesota's
Environmental Quality Council has the capability of assuming
other functions later in addition to administration of the
Power Plant Siting Act. As previously mentioned, Ma ssachusetts
and California are heading toward a large super Environment
Agency.

Oregon's Land Conservation and Development Commission is a
department by itself, but considered part of the Environmental
and Natural Resource Programs. Studies in Michigan and
Colorado mention the desirability of having a Department
of Land Use, but perhaps due to the newness of the responsi-
bilities, Oregon's Land Conservation and Development Depart-
ment is-a pioneer in state government organization. Perhaps
as the Colorado study states, "After a few years.of (hopefully)
cooperation between the StateLand Use Agency and related
agencies, those agencies themselves will see the need for

Page 103.

emerging respective functions into a new, single integrated
department." (94)

In Maine the time period of the creation of the new Land
Use Regulation Commission (with jurisdiction over the
unorganized territories and plantations, 50% of the land
area of Maine) coincided with a major governmental reorgan-
ization effort. When the reorganization task force was-
meeting, the functions of the Maine Land Use Regulation Comm-
ission,were still unfamiliar, and generally considered to be
flenvironmental protection". The agency started off indepen-
dent, but discussion as,to its best location in state govern-
ment continued. The Executive Director of-LURC, James Haskell,
proposed the creation of.a new Department of Land Use which
would have taken some of the related functions such as the
Wetlands program, Site Location and Shoreline'Zoning from
the Department of Enviromiental Protection and include it
with the wildlands' planning and zoning agency LURC.(95) There
were also other proposals to place the planning fUnction
of LURC into State Planning Office (in the Executive branch)
and the permit function into the Department of.Environmental
Protection. The resolution was to place LURC,(independent
for its first four years) into the Department of Conservation,
(originally called Department of Natural Resources) with the
Bureaus of Forestry, Park and Recreation, Public Lands, and
Geology.

(94) A Land Use Program for Colorado (1974)

(95) Haskell, James S., Jr., Position Paper on Reorganization,
March 20, 1973 (unpublished)

Page 104.

VIII. WILL IT WORK--EFFECTIVENESS

How can the state guarantee its people that their product, a
.land use guidance system, will hold up under the heavy pressures
of use?

The history of local land use legislation has not been too
encouraging. Zoning ordinances have turned out to bb more a
process than a document. (this phraseology is usually recomm-
ended for comprehensive planning, not for zoning ordinances).
After about 10 years in operation, the amendment portion of most
zoning ordinances is usually bulkier than the original document;
field inspection shows developments with very little relationship
to original zoning maps. It does appear that 11the developer's
tail has wagged the dog".

Must history repeat itself? Can the lessons learned on the local
level be translated to the state level? More importantly, are
the intentions and goals of the new land use guidance systems
more in line with current conditions and aspirations of the
citizens? Hopefully so.

A. HAS IT WORKED IN HAWAII?

Hawaii is a state we can ask, "has it worked?" After 13
years of experience, it depends on whom you ask. As Shelley
Mark, the Director of Hawaii's,Department of Planning and,
Economic Development put it:

"Those who live closest to the action in Hawaii
probably are the most disappointed that more has
not be.*en accomplished in-the area of either tight-
ening or loosening.land controls (The choice
depends on the philosophy and interests of the
viewer) Tourists and other occasional visitors
.see in their brief visits, broad surface view
of Hawaii-a State of beauty, good order, apparent
harmony, a singular lack of smokestacks, bill-
boards, ghettoes, and disfigurem6nts, and@conclude
that it certainly must be one.of the world's greatest
places in which to live, and is obivously ideally
managed." (96)

Others, according to Shelley, are concerned at not having.
met the basic needs-of low income housing, for instance.
The protection.of agricultural land has led to the con-
comitant spiraling of land costs.

(96) Mark, Shelley, "It All,Began in Hawaii," State Goverrunent,
'Summer, 1973

Page 105..

more interesting measure of effectiveness might be thO
statistics of the permit system. Prom 1964, when the Land
Use Commission drew up its first district boundariesq to
1970, it received requests for more than 100,000 acres to
be reclassified into the urban district from agricultural.
This is significant because the basic underlying legislative
intent was the attempt to preserve prime a gricultural
lands. Of that 100,000 acres, 30,000 acres were reclassified
into the urban district; only 3,500 acres were considered
prime agricultural lands. And these primelands included
two pockets in the midst of an already heavily urbanized
area, while the remainder of the reclassified agricultural
-lands were devoted to immediate housing needs.

A more recent test was an application for major development
on 1,300 acres of agricultural land for urban use. The
Commission first deferred the decision until a comprehensive
plan of the area was completed (a moratorium); then after
the completion of the plans, turned the application down,
The tests are continuing. Although the system is still
presently holding up, even after 13 years, Hawaii doesn't
feel it can' say it has arrived. (97)

In a recent article Philip Savage, Director of the Maine
State Planni'ng Office, takes a look at the Hawaiian system.
He bases his aticle on the "State of Hawaii Growth Policies
plan" (published in 1974) in which Hawaii takes a look at
its own progress. There is a sense of frustration reported
by the Hawaiians with using a static Land Use Plan:

But by the mid 1960's the 1961 General Plan proved
particularly weak in its data base and growth projectionsi
in it lack of any mechanism for resolving fast-growth
policy questions and conflicts, and in its inability
to accomodate itself to new Federal program require-
ments. It became clear that physical surroundings
did not determine social and economic behavior; more
highways often meant more cars, more trips and traffic
congestion; and fine schools alone did not increase
learning skill or teachers' abilities. Problems of
planning became recognized.as far more complex than
anyone had imagined. There were no simple approaches,
and the search for solutions to complex social prob-
lems solely through efficient and aesthetic lay-out
and construction methodologies was seen as futile....
The old general plan approach was discovered to be
archaic and had given way to-the planning process.(98)

There has been some criticism of the Board of Land and
Natural Resources which handles application for use in con-
servation districts. Most observers seem to agree with

(97) Mark, Shelley, "It All,Began in Hawaii',' State Government,
Summer, 1973
(98) Quoted from an article b Savage, Philip, Maine Sunday
Telegram, August 25, 1A

Pqqe 1o6.

Harold Hostetter, environmental correspondent of the
Honolulu Advertiser, that while some uses permitted in
conservation district may not be strictly conservation-
oriented in the environmental preservation sense, there
are a few examples of blatant misuse. (99)

B. THE VERMONT SYSTEM

The effictiveness of Vermont's Act 250, passed in 1970,
is analysed in a recent,pamphlet "So Goes Vermont" published
by the Conservation Foundation for use in a series of
conferences on State Land Use Legislation.000)

1. Enforcement

one very interesting positive effect in Act 250 is a workable
enforcement vehicle for-the other environmental laws that
predated the Land law, (on water resources and dumping), but
were not enforced and were roundly ignored. A study for the
Conservation Law Foundation in New England found, however,
that "enforcement of Act 250, permits and conditions, has
been inadequate ... largely because of lack of staff. Without
investigators to discover violations, there has been very
littleto prosecute" But, Chairman of the Environmental Board,
Schuyler Jackson, believes "ad hoc compliance is good. Re-
putation counts for a lot here in Vermont."
So far, two fines of $200.0b each have been imposed in cases
of construction without a permit. "The Board prefers.to
press for conviction rather than criminal penalties',,perhaps
because it wants to avoid a lawsuit.

2. Administration

Criteria are being unevenly applied. Vigilance of the
Commission varied with the local mood. "A query about
whether conditions are similar from district to district
is likely to be answered with 'Why should they be?' or
'We don't know'." The loophole plaguing officials has
developers getting around the jurisdiction of the law.
Developers try a little less than 10 acre lots and .9
commercial strip developments. Officials estimate that
,about 20-30% ofall development comes under Act 250's
purview.

3. Effects on the Economy

Some "may believe Act 250 slowed growth., But this is
harder to pin down because it requires an analysis of what
is not being built as well as what is. The building rate
fell off sharply immediately after Act 250 passed, but the

(99) Bosselman, The Quiet Revolution, p. 21 - 22
(100) All quotations on Vermont's system in this section in--"So
Goes Vermont", February 1974

Page 107.

economy took a slide in 1971 ... Vermonters say that brutal
largescale subdividers have left Vermont and gon Ie over.to
New Hampshire, (or other places with less control) and
this pleases them."

Facts on economic impact are hard to come by.. 10% added
cost in Housing has been documented by Dr. Milton J.
Nadwomey, Development of Economics,.University of Vermont
in "Some Economic Impacts of Land Development Controls in
Vermont," (January 1972). 1@is study points out such-
immediate costs as architect fees to prepare more extensive
plans, extra interest and taxes for an increased amount
of "idle time," percolation tests, and state,applications
fees. The report also added that the regulations "favor the
,larger developer who can absorb the front end costs and, in
using the market, pass them on to the consumer." The.
Commissioner of Housing admitted some effects, but added
"There are already so many.barriers to housing in place that
it cannot be considered the major one." He also added a
very interesting angle: The Act can be used as a lever to
increase the supply of first homes: In one town a developer
scratched plans for a large recreation home development
after the community came down hard on it at an Act 250
hearing. He is now working out a substitute plan that will
provide first, as well as second homes!!

The Vermont plan is currently in trouble. The Legislature
failed to accept the Comprehensive Plan. It is hoped that
this is only a temporary set back, but the warning lights
have certainly been raised.

C. FLORIDA

For he who fights and runs away
May live to fight another day;
But he who is in battle slain
Can never rise and fight again.

(Oliver Goldsmith, 1761)

This quote on a desk of.a state planner in Florida offers a
summary of the embattled'beginnings of the implementation of
Florida's Act 380, The Environmental Land and Water ManaZement
Act of 1972. The 17-gislation has been slow in getting off
the grou aand.has met with heavy political battles along
the way, due to both inbuilt administrative difficulties
and to an interesting clash of contrdd ictory attitude and
values.

This analysis draws heavily on Slow Start in Paradise, an
analysis done by the Conservati'on Foundation for use at a
series of conferences on Land Use.

Page 108.

Difficulties in Administration

The Florida situation is a case illustration of a problem
emerging from the solution. The problems in administering
the act came from the "bureaucratic obstacles"--- a label,
that encompasses the weaknesses of local and regional govern-
ments upon whose strengths the multi-tiered structure
required by the Act is based.

Since the administration was up to local levels, state
planners had to look to the local and regional bodies to
assess their capability.to.do the job. Florida wasn't
ready with the governmental building blocks for Act 380.
28 out-of 67 counties, and one-third of the cities, lack
minimum zoning or subdivision controls. What exists is a
hodgepodge of varying requirements, often limply enforced.
Additionally, even the better funded and larger regional
bodies, such as the 8ast Central Florida Regional Planning
Commission (EMPC),@had the institutional weakness of a
voluntary association of "sovereign" counties, whose
representatives.tend to wear their local ratherthan regional
hats when they make decisions together.

Another severe constriction has been the inadequacy of funds
and staff to perform@the tasks mandated, but whose extent
was perhaps not realized by legislators. For example, to
declare the Big Cypress a critical area required the planning
division to recommend, specific boundaries, to specify why
it believed the area was critical and what the dangers of
uncontrolled development would be, and to establish principles
to guide future development. Understaffed, bogged down with
an inventory of public lands required by other legislation,
it found answers hardto pin down. It is all one big
ecosystem. Where does the critical area begin? Where does
it end? 'How doyou justify certain regulations here and not
there?

Robert Rhodes of the Land Planning Division of the Department
of Social Planning es@imates it takes about 3500 hours of
staff time to justify,a critical area. In all, 25 professionals
are*involved in the land planning division; 20 more are,
requested* Total bedget in 1973 was $1.5 million; the Director
estimates it would take $3.5 million annually to fully
implementlaw.
Another task faced by'the Division of State Planning is to
work out guidelines to define the development, which shall
be considered Developments of Regional Impact (DRI,-the law
may not be fully implemented but a whole soup of acronyms
and abbreviations has already developed)'. The same tiny
staff was to do this as well as answer a flood of letters
from developers claiming vested rights and exemptions, or
just plain asking questions..

Page 109.

The Developments of Regional Impact review process also
burdens the overworked staff. The director estimates
that it costs $800.00 to $1600.00 in staff time to com-
plete a review which the local level must send up to the
state.

Additionally, as developers prepare more-sophisticated
environmental-impact statements replete with technical
judgements about how development affects water, soil runoff,
and floodplains, the regional staff feels it needs more
state testimony from relevant agencies--more money, more staff...

The problem of funding and staffing is bound up with conflict-
ridden dilemma. The law cannot work unless far-more money
is committed to it. But money is tightening in Florida as
elsewhere and the appropriation of money might be the most
sensitive and visible target of the environmental backlash.
On the other hand, there is already widespread disillussion-
ment in Florida today about laws that promise too much. Only
full funding and top level ('Governor-Legislature) commitment
to the implementation of the land use guidance program can
restore its credibility.

2. Political Problems

"Land use decisions are 51%
political, 49Yo scientific"

(Earl Starnes, Director of Division
of State Planning, Florida)

As a background for considering the politics encountered in
implementing the new law, it is well to remember that the
Act 380 was based on some very dramatic needs, listed by
Richard'RuBino (in an article in State Government, Summer 1973)

Well fields supplying water to major urban areas are
being depleted
salt water intrusion of fresh water supplies is occurring
erosion of coast is accelerated@by encroachment of develop-
ment and associated construction
major fish kills due to pollution
prime agricultural lands being lost to development
major developments causing major transportation problems
cities and towns are establishing moratoriums on develop-
ment; one community has gone so far as to restrict the
total number of dwelling units within its boundaries to
40,000
a severe drought in 1970-71 causing underground fires
with consequences vividly illustrating the inter-related-
ness of land use.

Page 110.

So the law passed - (wit 'h a well oiled effort set up by'
the Governor and his Task Force). These needs, however,
came clashing head on with some equally'powerful political
and social traditions in the State of Florida.

The first big test came in-designating critical area number
#1-the Bi Cypress Area. This massive disc-shaped watershed
covers 2,U square miles, is the archetype of-ecological
vulnerability, and lies largely in private ownership. Dis-
tribution of ownership varied:
- Sizable amounts were owned by the agri-business firms;
- Land Development Corporations had been granted sections;
- Innumerable small (underwater) sites had.been sold all
over the world.

This task was admittedly a big challenge. The state was
taking on powerful economic interests; and the Florida
courts were traditionally conservative on the issues-of
property rights.
This critical area designation was realized only by cir-
cumvention of the Act. The Legislature passed a separate
act designating the Big Cypress an area of critical concern.
The capability was obviously there for the executive branch
to do this; but apparently the legislative prodding was
needed because of "bureaucratic obstacles" (quite an indicator
of weaknesses in the law)... The new act bypassed local
governments and gave the state planning division 120 days to
recommend boundaries and regulations.' The easy passage
of the Big Cypress Act in the legislature was quite deceptive
of what was to follow in designating and regulating the
area. Legislators later said they didn't realize what was
in the Act.

The problems came crawling out of the woodwork. Public
hearings on designation andrules were packed, tense and
hostile; state troopers were called to stand guard; con-
servationists were hooted down by comments such as:

"Some of us may have to sacrifice our lives to
get rid of those who are destroying us, such as
long hairs, minority groups, one worlders, do
gooders, bird watchers, and so called ecologists
and all the other draft dodgers and get them off
the backs of the people who are responsible for
feeding them even if they don't deserve it." (101)

(101) Quoted from Immokalle Bulletin,. September 6,'1972.

Page 111.

Opposition came from overt and covert sources. 'Farmers
charged "smoke-screen" and "legal rape", even though
agricultural use was exempted.. Legislators publicly
recanted saying that they didn't know what hit them, that
the bill went through too fast.. "We didn't ask anyone;
we just rammed it down your throat.11. Big developers stayed
in the background, but gave their employees time off to go
to meetings, and maybe even some guidance about what to
say. Local officials complained that they weren't consulted;
state officials disagreed. The outcome was that planning
officials went back to drawing boards and retreated from
1,568,000 acres to 855,000 acres, including only the most
sensitive part of the-watershed. This action eliminated
most of the area under development pressure as well as the
rich agricultural lands. The new administrator in the county
where regulations will have to be enforced said that they,
will be carried out "if we can get them (developers) and
they don't shoot us."

Another obstacle to implementation came from the legislatures
eleventh-hour decision to keep control over the guidelines.
and standards promulgated for Developments of Regional
Impact.(DRIts@. The stage was set for tense compromising.

The DRI guidelines came back to a subsequent legislature
well-buttressed with opposition. The Miami-Herald reported
that building and real estate interests contribut77d, heavily
to the election campaigns. More than J of the total con-
tributions received by the members of the Senate Natural
Resources Committee came from builders and developers.(!)
Add to this the forces of "agribusiness,"(a $2.billion
industry), urban banking, insurance, and speculative corp-
orations ... The expected strong interests of fishermen,
crabbers, and. sportsmen somehow did not materialize.
The conservationists were lounging in the hammock of their
victory in the last session.

The guidelines passed with lots of compromises. The size
of, or what constitutes a DRI,depends on a county's pop-
ulation. Numerical definitions (always open for legislative
mending) are specified for airports,. recreation facilities
and electrical generating facilities. Supporters had
hoped for more; some licked their wounds and decided it
"was the best they could get;".others said they were "so
disappointed we just stopped caring."

A poll taken last fall showed that overdevelopment and
growth continue to be the major concerns of Florida
residents. It is continually refertilized by new causes
and new outrages. It may be strong enough to withstand
the onslaughts; but is certainly,will not be easy.,

Page 14

3. Effects of the Land Use Law

Of the thr ee states discussed, Florida's law is the youngest,
making the assessment of its effects rather premature.,

Some of the effects have come from anticipation of implemen-
tation. Officials do attribute the rise in land costs to
the newstates' policies. Outside the critical area of the
Big Cypress (now smaller as a result of compromise), the
cost of.developable land has zoomed about $1,000 a month
on a $12,000 lot since October, 1973.

Another consequence has been the boom of tens of thousands
of housing and land units and millions of dollars of develop-.
ment initiated in the long pause between the law and the
effective date of implementation. (The Florida law does
not have interim provisions which might have helped).
In the first six months of operation,'73 applications under
DRI have been filed for almost 300,000 dwelling units, 67 in
regulated areas.

State officials say "compliance is good", although some
developers have to be "reminded". So far 23 DRI's have been
acted upon: 8 approved, 4 flatly denied, 11-approved with
conditions. One is known to have decreased its units to
duck under the DRI threshold, a problem also existing in
Vermont. Many complain of the questionable logic in the
threshold concept, as several smaller-than-DRI projects
together may.escape the laws, but still have as great an
impact on the county as a single larger development.

A most serious problem, perhaps applicable to all the states'
effortst is cited by Barry Peterson, south Florida's Regional
Planning Director:

"Developers decide where to build.
The DRI process is a.wildfire planning
technique and we just don't have the
time to go into long range issues.11

Page 113.

IX. CONCLUSIONS

This report intended to be analytical and not to make specific
recommendations. None of these systems have been-in effect
long enough to draw any firm conclusions. A few problems are
already evident. Some are a question of focus, others deal with
administration; Then there are'general admonitions rather like
the advice of parents sending of a young couple on their honey-
moon - follow the rules of good government and live up to your
intentions.

A. HUMAN RESOURCES AND ENVIRONMENT

The states' concern with social.and economic problems,
as discussed above, creates the fundamental need for an
assurance that land use guidance will take place in a
truly comprehensive framework.
The awareness of the threat to' our physical environment
from unbridled ravaging development has.forced most concerns
to be focused on the environment. Beginning to re-emerge
is the recognition of the need to consider human resources
in relation to the environment. Not only s = development
be controlledin one area; but it has to be guided to
another area which is more suitable for that ac ivity.

Richard Babcock, lawyer, and prominent author in the field
of Land Use Planning (Bosselman's partner, and chairman
of the Advisory Committee to ALI authors) states:

"Too many proposals for state participation on land
use regulation with their emphasis on what "environmentItl
connotes to the white middle class, may operate to
exclude even more persons from adequate housing" ... State
must act not only to protect natural resources from
improper growth, but also to encourage growth necessary
to benefit our human resources and to rectify long
standing abuses of land use regulation ... Adequate
housing for humans in an area reasonably accessible to
jobs must surely be as legitimate an endeavor in an
ethical society as resting places for terns. (102)

(102) Babcock, Richard Urban Law Annual, 1972, p. 67

Page

The public, citizens, officials, politicians, "consumers,"
and developers, all need,to realize that land use guidance
is not exclusively an environmental or pollution control
function;.rather, it encompasses the vital economic, social,
and recreational needs of human beings. The environment
is one aspect or "gel" in which the fulfillment of all these
needs can take place.

When the requirement is for such comprehensive analysis
(planning ) the hazard is getting lost in the trees and
loosing sight of the forest. It is easy to say the word
"comprehensive", almost to the point of being a cliche
but is it possible to do? The guidelines and money available
from the National Land Use Planning Act would certainly be
a significant contribution. It 'is true that without the
comprehensive, statewide and coordinated planning component,
land use guidance can not exist. The permit system is a
short-range fire extinguisher, whose support base could be
pretty unstable.

B.. PROGRAM IMPLEMENTATION

Administrative procedures must be such that the policies
and plans of the program can be effectively implemented.

As the National Land Use Policy Act indicates, and as the
states are finding out, no one means of program implemen-
tation would work for all the states. It is essential that
law makers consider the implementation when they design
and pass legislation.

It is evident from the Florida story that most legislators
had no idea what the program would cost. They tend to
appropriate too little, then complain that the executive
branch is not performing properly. An appraisal of how
much a program'will cost should become easier-as more
states gain experience. The grants that would be made
available if the National Land Use Policy passes will be
a significant boost. Legislators, however, land the citizens
they represent, can't escape the responsibility of the
financial commitment,that must go with the best intentions.

The administrative organization have to provi.de implementation,
by well-funded and trained agencies, in both planning and
understanding the states' goals, policies, and laws. The
agencies should be as freeas possible from institutional
or political bias, which could subvert the policies of the
state. If the preparation of plans and the authority to
issue permits remain at the local level, then the state
must make sure that there are some uniform guidelines and
standardized resource and socio-economic data, that the plans are
coordinated.with neighboring entities.and with the state's

Page 115.

policies; and that there are adequate timing and funds to
enable local officials to carry out their functions,

Since there is already fragmentation from the tradition
of home rule and the efficiency of local administration,
it-would seem that whatever functions are left to the
states.- proposing policies, guidelines,regulations,
reviews and permits - should be combined into one agency
with neither an environmental or economic bias. Since this
agency would have considerable power, it should be required
to have a citizen decision-making board, which would guide
it and serve as representatives of the public.

1. Administration of the Permit System

There are two aspects to the permit system: the application
and the handling of the paper work and the decision making
process itself. The goal must be fair and equaltreatment
without undue delay and red tape.

a. Red Tape in Permit System

Because of the many agencies and levels of govermment
having permit or review function, the applicant is often
faced with the expensive and time-consuming task of
filling in numerous applications, maneuvering them
through the maze of bureaucracy, and appearing,at umpteen
hearings. This is an often heard and probably legitimate
complaint of developers when faced with the possibility
of a state land use management system

There are a number of ways to remedy this situation.
One is to. streamline government, so that all agencies,
dealing with land use are coordinated on the state level
and among local, county, and regional levels. Another
method is to have a central clearing house agency to
process a master application. This agency then takes
the proposal through the maze. This still does.not
solve the problem of going through a series of public
hearings.

A section of the State of Washington's proposed land
use bill (currently under consideration) establishes
a coordinated permit system, including a master applica-
tion and one-stop permit hearing, combining all the
agencies requiring permit.

Vermont instituted a "one-stop" permit procedure in
September, 1973, in response to developers' complaints
that the permit process is time-consuming, complicated,
and everchanging. The one-stop is applicable so far
only to activities under the Environmental Conservation
Department.

Page 11J.

The lines of notice, review, and hearing participation
in the ALI Code are obvious, almost literal, represent-
ations of red-tape connecting up,the levels of govern-
ment. This is not even considering lines among and
between differeht agencies of the state. The enactment
of Florida's law, an attempt to use some parts of the
ALI Code, meant all the people involved in the system
had to be trained and informed about what the law says.
It is quite conceivable that the levels of competency
will be quite varied; each level is also open to differ-
ent amounts of interest and politics. The following
.quote from a review of.Flori.da's system gives a taste
of the problem:

"The three levels of review--the staff, the
directors, and commissioners who.make the
final recommendations--have somewhat differ-
ent'perspectives and pressures. A director
who presses his commissioners too hard may
..have to find another job; a staff that em-
barrasses its director may get dressed down
at a public hearing; a county commissioner
hesitates to cross another because he may
get gored next.,,

b. Fairness in Decision Making

Is the system flexible or is it a cafeteria for@special
interests? If there are no pre-established zones for
development, that the developer and the permit-granting
agency know ahead of time, then there still must be
criteria to judge each development proposal. The use
of pre-established guidelines and standards assures
the developer that his proposal willbe in relation to
established goals and dictated conditions, as spelled
out in a comprehensive plan or in properly aired interim
regulations. Playing the game by its rules consis-
tently, and without undue delay, will set the necessary
climate.for effective enforcement. Streamlining the
application system, as discussed above, will help to
prevent undue frustration and the urge to circumvent
the law.

Amendment procedures too must be rigorous enough to
allow flexibility for changing conditons, but-not to
allow "the developer's tail to wag a dog." Every
effort must be made to uphold the policies established.,
To change policy in mid-course should be i.mpossible
withouta thorough process of review.

Page 1-17.

C. DECISION MAKING BODIES

People run the goverment; and people make its decisions.
For good or for bad, that's all we have at the moment.
People, are fallible; therefore, -every effort must be made
to guarantee that the people appointed to carry out the
functions of land use guidance are of the highest ability
and integrity.

First, the appointees must be dedicated to serving none
other than the public interest. They must be isolated
from political considerations, as much as possible, and
above all without CONFLICT OF INTEREST. An effort should
be made to investigate statutory definitions of conflict
of interest, in appointments and in performing functions.
Limiting Board members to two terms would also seem like
a good idea, to prevent inbreeding and "croniism".

An effort should also be made to assure that a new appointee
thoroughly understands the statute, goals, policies, and his
responsibilities in carrying out his duties. This can partly
be accomplished by appointing capable people, but also by
seeing to it that the appointee is thoroughly briefed by
the staff or by other appropriate officials or educators.
As Herbert Smith warns, in Citizens Guide to Zoning (talking
about local ordinances, but applicable to state):

"Volumes could be written on the importance of
appointments made in conjunction with zoning -
administration and still inadequately tell the
story'. (There aren't volumes written on it,
though) Herein lies one of the fallacies of our
American political system; that is, that elected
officials who are members, in most cases, of a
political party, feel that they are obligated to
appoint other members of the same political
party ... regardless of qualifications-I have seen
zoning officers,-and members of zoning boards
who have been appointed solely because.of their
political connections and who, I am sure, have
never even bothered to read the zoning ordinance
which they are called upon to administer. Needless
.to say the results in such cases are usually dis-
astrous not only for the zoning process, but for
the entire community development program." (103)

(103) Smith, Herbert, A Citizens Guide to Zoning, p. 58

Page

D. ENFORCEMENT PROCEDURES

Enforcement procedures.must be set up so there is no way
for anyone in any jurisdiction to think he can get away
with something. If enforcement is up to local agencies,
then the state must have procedures to oversee the enforce-
ment. A commitment o f 'money must go with,the law to ensure
that there are enough people in the field to inspect develop-
ments for conformance@with conditons and to catch unlicensed
developments. There is nothing worse for public confidence
than to pass a law, give the appearance of having good
intentions, and then not following through with adequate
appropriations to assure that what the law says can be
carried out. Provisions for certificates of occupancy,
performance bonds, and the ultimate elimination of serious
non-conforming uses would seen to be a desirable adjunct
to accomplish the goals of quality land use management.

E. CITIZENS VIGILANCE

Finally, the job of the concerned citizen is not accomplished
upon the signing of alland use guidance law. "Unfortunately
most Americans, including conservationists, are so naive
about our political processes that they believe passing
a law solves everything ... We organize and work'like fury
to'get a good law on the books then turn our attention to
other things as if thebattle has been won.,"(104) "The role
of the citizen is eternal perpetual vigilance and a deter-
mination,to express opposition to any violation of the zoning
ordinance,regardless of whether or not it may seem to
create an atmosphere of unpopularity." (105)

As previously discussed, some citizen vigilance is recognized
by the framers of the law as essential for effectiveness,
and is thus built in 'by advisory boards and public hearings.
This is essential; but not enough. The citizens must
assure that the intent of the law is carried out; They must
see to it that candidates, and thus future office holders,
understand the intent and uphold it. The election of some-
one bent on distructing.the law would be disastrous, but
quite conceivable.

(104) Bill Partington of Floridal,s Environmental Information
Center, cited in Slow Start in Paradise, prepared by
Conservation FounTa-E-io-n, February, 1974.
(105) Smith, Herbert, A Citizens Guide to Zoning, p. 63

Page 119.

F. SUMMARY

This paper was written in Maine primarily for a Maine audience.
Reviewers of the first draft have repeatedly asked why land
use guidance in Maine wasn't the focus of this paper. The
answer is that the purpose was to offer as an objective as
possible framework and perspective of other states' experiences
and problems as a basis for designing a system in Maine. Maine
has done a lot, -77
it as-been nationally recognized as a leader
in the field with its Site Location law and the (wildlands)
Land Use Regulation Commission. But we in Maine are still
searching for better ways and answers to integrate and coord-
inate what we already do have. As the states are forced to
take the leadership in managing land, we all have a lot to
learn from each other so we can leapfrog the mistakes of
others and continue to forge ahead for new solutions.

States are making some progress in assuming authority over
territory and activity recognized to be.of larger than local
significance.
there are many issues left to be resolved. The state's
role in guiding the use of land is a new endeavor, the
complexity 'of which has not been truly realized.

There ate difficulties ahead. There will be opposition from
both sides. There also will be those who think any regulation
is more than they can tolerate, especially coming from
the state. On the other hand, there will be those who
expect too much from land use control. It is well for
both to remember the limitations of governments power to
guide the use.of private,land. The boundaries of that
power have been and will continue to be set by the courts'
weighing of the public's health, welfare and safety (public
interest) against the taking clause of the Fifth Amendment
All of this is in a-dynamic state of flux heavily influenc;d
by the public's definition of their interests-the public
attitudes.

Although we feel some form of land use guidance is necessary,
however, extreme care must be taken to ensure the enacting
and administering of our land use planning and regulations
does not create more problems than they seek to solve.

It requires an inconceivable,coordination of all political
decisions.

It asks for a committment to follow a comprehensive plan
for a longer period of time than the single term of
elected officials. At the same time it asks for flexibility
in relation to the social and political climate of the
country and of each state.

Page 121

Are the institutions of our governments up to the undertaking?
It certainly will not happen automatically. The enabling
legislation has to be drafted with maximum citizen involvement
so that administrate problems can be anticipated in advance.
Then, in the final analysis, the effectivenus of any
legislation boils down to the established prerequisites of
good government:

An informed citizenry should elect honest and capable
legislators and Governors. They, in turn, should appoint
officials dedicated to thepublic interest. Then the
citizens should hold all of,their public officials accountable.

Page 121.

X. BIBLIOGRAPHY

A. GENERAL

Babcock, Richard, "Comments on' Model Land Development Code",
Urban Law Annual, 1972; The School of Law, Washington
University;

The Zoning Game; Madison, Wisconsin;
University of Wisconsin, 1966;

Barringer, Richard and others, A Maine Manifest, The A llagash
Group, 52 Front Street, Bath, Maine, 04530; 1972;

Bosselman, Fred, The Quiet Revolution in Land Use Controls;
Prepared for the Council on Environmental Qual'177;
Superintendent of Documents, U.S. Printing Office; 1972;

Costonis, J. J., Transferable Development Rights as a Basis
For Land.Use Control, Florida State University Law Review,
2:35-107, Winter, 1974;

Delafons, John, Land Use Control in the U.S.., 2nd ed.;
Cambridge, Mass., M.I.T. Press; 1969;

Garner, J.F., "Land Use Control in America,"-Journal of
Planning and Environment Law; March 1973;

Goldschmidt, Leopold A., "Principles and Probelms of State
Planning," Report #217, Planning Advisory Service of
American Society of Planning Officials; June 1969;

Heeter, David, Toward a More Effective Land-Use Guidance
Svstem; Chicago, American Society of Planning Officials;
1969;

Krasowiecki, Jan, "Model Land Use and Development Code,"
Urban Law Annual, 1971; School of Law, Washington University;

Land Use Control Annual, American Society of Planning Officials,
Annual, 1971'-,

Land Use Planning Reports, James B. Coffin, ed. (published
bi-mon -thly); Plus Publications, Inc., 2814 Pennsylvania
Avenue, N.W., Washington,.D. C.., 20007;

Lloyd, James H., "Local Versus State and Regional Zoning.: The
Tragedy of the Commons Revisited," Connecticut Bar Journal,
Vol. 47, #2; June, 1973;

Model Land Develo2ment Code, Tentative Draft #3; Philadelphia;
The American Law Insti:Eute (ALI); April, 1971-
Nicoson, Wm., "Land Use Controls in Search of the Public Interestl
Urban,Land; February, 1972;
Page 12j.

Reich, Charles, "The Law of the Planned Society,"' Yale Law
Journal, Vol.
75@

Reilley, Wm. K., ed., Excerpts from report of Rockefeller
Brothers Fund: The Use'of Land: -A Citizens' Policy Quid
to Urban Growth; New York; Thomas Y. Crowerl I-Co.; 1973;

RuBino, Richard and Wagner, William, States Role in Land
Resource Management; Lexington, Ky.; Council of S.a.e
Governments; 19'fZ;

Sanford, Terry, Storm Over the States; New York; McGraw Hill;
1967;

Selberg, Earl, Rural Zoning in U.S.; U.S. Department of
Agriculture, Misc. Pub. #lT3-=, tJ.S,. Government Printing
Office; July, 1972;

Slavin, Richard, "Toward a State Land Use Policy," State
Government, Vol. 44; Winter, 1971;

Smith, Herbert H., The Citizens Guide to Zoning; West Trenton,
New Jersey; Chandler-Davis Publishing Co.; 19659 1970;

State Government, Vol. 46, Special Issue'on Land Use; Lexington,
Ren7ucky; The councii- of State Governments; 1973;

"State Land,Use Regulation--A Survey'of Recent Legislative
Approaches," Minnesota Law Review; Vol. 56; 869; 1972;

Suloway, S., ed. A Summary of State Land Use Controls, Report
No.1; Washington, C.; Land Use PlanEing Reports; Sept.
1973;
Walter J. Jackson, "The Laws"of the Land: Development
Legislation in Maine,and Vermont;" Maine Law Review, Vol. 23;
1971;

Whitney, Scott C., "The Case for Creating a Special Environmental
Court.System," William and Mary Law Review, Vol. 14; Spring,
-1973;

Wilkinson, James E., Jr., "People Power in Land Use Planning"
(Mimeographed, unpublished); Director of'Forests, State
of Vermont; 1973;

B* FEDERAL POLICIES AND ACTS
Congressional Record: August'16, 1972; September 180 1972t
September 19,7772; January,9, 1973; June 15, 1973; June
21, 1973;

,Fletoher,.W. and Leonard, Lloyd, "The Federal Framework.for
State Land Use Programs" (unpublished paper); prepared for
Conferences on State Land Use Legislation; Washington, The
Conservation Foundation; February, 1974;

Page 123.

.Jackson, Henry M.,, "Environmental Quality, the Courts and the
Congress," Michigan Law Review, Vol. 68; 1.073; 1970;

National Land Use Policy Legislation, 93d Congress: An Analysis
of Legislati7e Proposals and State Laws.- Environmental Policy
sion, Congressional.Research Serv-ice', Library of
Congress; printed for the Committee on Interior and Insular
Affairs, U.S. Senate; Washington, D.C.; U.S. Government
Printing Office; 1973;

Report on Land Use Polic-V and Planning Assistance Act, s. 268,
No. 93-197; Commitl-ec. on Interior and Insular Affairs, United
States Senate; Wash'j_j-.tgton, D.C.,U.S. Printing Office; 1974;

Report on Land Use Planninj- Act of 1974, H.R. 10294; No. '93-79B;
Committee on Interior and Insu_1777ffairs, United States
House of Representatives, Washington, D.C., U.S. Government
Printing Office; 1974;

C. STATE POLICIES AND PLANS

Colorado:
"Land Use Program for Colorado"--A Report by the Colorado Land
Use Commission; Denver; 1974;

Connecticut:
Proposed: A Plan of Conservation and Development for Connecticut-,
Office of State Planning, 34-0 Capitol Avenue, Hartford,
Connecticut, 06115; 1973;

Florida:
77S 7M@Report to Governmental Operations Committee on Environmentaj
Reor4anization;11 Committee on Governmental Operations, The
Capitol, Tal7hassee, Florida, 32304; February, 1972;

Kentucky:
"Governor's Reorganization Reports," #1-10; Governor's Office,
Frankfort, Ky.; August 29, 1973;

Maine:
7e-logue, Orlando, and Gregory,.David, "Planning and the Law in
Maine," Parts I, II, III; Maine Agricultural Experiment
Station, University of Maine, Orono; (Bulletin #653, 654,
660;)

Toward a More Responsive and Effective State Government;
Governor's Task Force on Reorganization; State PI-anning
Office, Augusta, Maine;.1969;

Maryland:
Executive Reorganization: A Com@rehensive Plan for MarVland;
Annapolis, Md., 21404, Executive Department; 19b9;

Page

Massachusetts:
Ertel, FFO-ge, ed., "Public Participation in the Formulation
of a Plan for Management of Solid Waste Disposal--the
Commonwealth of Massachusetts;" Institute for Man and His
Environment, University of Massachusetts, Amherst; March,
1973;
"Plan.for Reorganization," Dr. 'Charles H.W. foster, Sect.,
Executive Office of Environmental Affairs; Boston;

Michigan:
vernor's Special Commission on Land Use Re-port; Governor's
Office; Lansing, Michigan; January 5, 1972;

Montana:
ffeorgEnization in Review"; Government Operation Unit; State
Capitol, Helena; 1972;

New Mexico:
An Appro to Land Use Policy Statement for New Mexico; Santa
Fe, New Mexico, 87501

New York:
New York State Planning Law Revision Stuu, Document #4, N.Y.
9tate Office of Planning Services, 488 Broadway, Albany,
New York, 12207;

Rhode Island:
State_T_an=se' Policies and Plan; Providence, R.I., 02907,
April, 1973;

Vermont:
'LanT U-se and Development Law (Draft), St.ate-Land Use Plan;
Office of the Governor, Montpelier, Vermont, 05602;
October, 1973;

Myers, Phyllis, "So Goes Vermont;" The Conservation Foundation;
February, 1974;

Virainia:.
Mtical Environment Areas; December, 1972; and "Update."
AugusT-,-T=-,

Temple, T. Edward, The Virginia Cabinet; September, 1973;

Background Paper No. 1: "State Government Reorganization:
Questions to be Considered," June, 1973;

All from Division of State Planning and Governmental Affairs,
109 Governor Street, Richmond, Virginia, 23219;

Washinaton.
"Land Planning Information: A Call for Co-ordination and
Compatability;11 Land Planning Commission; Office of Community
Development, 543 108th Ave..N.E., Bellevue, Wash., 98004;

Page 125.

Wisconsin:
Managing Wisconsin's Natural Resources; Natural Resources
Council of State Agencies, Bureau of-Planning and Budget,
1 W. Wilson Street, Madison, Wisconsin, 53702;

Printed Un,

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