Flood plain and coastal area land use controls / [written by, Harry Cohen]

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

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Coastal Zone
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nOOD PLAIN AND COASTAL AREA
LAND USE CONTROLS

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458
C 6 4 ALABAMA DEVELOPMENT OFFICE
1974
MONTGOMERY, ALABAMA

ALABAMA I)EVI--,LQPM.E-N'I'OFr, ICE

George C. Wallace, Goveriloy

It. C. "Red" Bamberg, Director

W. M. "Bill" Rushton, Assistant Director

Bill J. Starnes, Director, State Planning Division

Preparation of this Document

Approved by: Bill J. Starnes
Director
State Planning Division

Written by: Harry Cohen
Professor of Law
The University of Alabama
School of Law

Technical
Advisors: William H. Wallace, Jr.
State Planning Division

Walter B. Stevenson, Jr.
State Planning Division

William T. Watson
Attorney
Geological Survey of Alabama

Research
Assistant: Steven F. Harrison
Geological Survey of Alabama

FLOOD PLAIN AND COASTAL AREA

LAND USE CONTROLS

US DEPARTMEN OF COMMERCE NOAA
COASTAL SERVICES CENTER

2234 SOUTH HOBSON AVENUE
CHARLESTON, SC 29405-2413

PROPERTY OF THE
UNITED STATES GOVERNMENT
NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION

For Retention
When no longer needed, please
return to: Technical Processes
Branch - D823

Alabama Development Office U.S. DEPARTMENT OF COMMERCE NOAA
State Office Building COASTAL SERVICES CENTER
Montgomery, Alabama 36104 2234 SOUTH HOBSON AVENUE
September 1974 CHARLESTON, SC 29405-2413

Property of CSC Library

Reproduction of this document in whole or in part by a user is permitted, provided proper
citation of author(s), title, publisher, and date is given.

This is one of several efforts being undertaken as part of the State Planning Information Program
to provide information and assistance to the State of Alabama and its, local units of government.

The preparation of this report was financed in part through a Comprehensive Planning Grant
from the Department of Housing and Urban Development, HUD P-1054; administered by the
State Planning Division, Alabama Development Office; Office of the Governor.

-For Information Address:

State Planning Division.
Alabama Development"Office
State Office Building
iMontgomery, Alabama 36104

First "Printing

Printe d in the United States of America

Unique Report Number: ALA-ADO-X996-10,54-01

Source of Copies: State Planning Division
Alabama Development Office
State Office Building
Montgomery, Alabama 36104

National Technical Information Service,
5825 Port Royal Road
Springfield, Virginia 22151

Abstract: This report treats two closely related subjects, flood plain controls and
coastal zone management , separately. First historical and the federal
legislative backgrounds are given for each subject followed by Alabama's
experience and legislation on the subjects. By putting the programs in
clear perspective various legal ramifications are explored and judicial
examples are Pited in detail in an effort to point out the "sign posts" for
government officials, legislators and the interested public.

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FLOOD PLAIN AND COASTAL AREA
I LAND USE CONTROLS
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CONTENTS

Introduction ..................................................... 1

L Flood Plain Zoning .......................................... 2
A. The Practical Beginning of Flood Plain Zoning
in the United States ................ @ o........... o... Q... 2
B. The Alabama Flood Plain Zonl:ng Statute ................... 5
C. A Perspective Over Recent Examples of
Flood Plain Control ........ o ............................ 7

IL Alabama's Coastal Zone Management Act: A Dilemma
Within A Dilemma .......... * ............... ............. 15
A. The Background of the Statute .......... *..G ....0 ......... 15
Bo The Exemption Section and Equal Protection .............. * 18
C. The Constitutionality of the Board's Power
to Regulate ................. ......... __ .............. 20
D. Definitions of Coastal Areas in the Statute,
and State versus Private Ownership of
Shorelines and Wetlands ................................. 21

III. Examples of Judicial Reaction in the United States to
Coastal Management and Zoning Fact Situations ................ 27

IV. "The Taking Issue', ...................... ..... o. 6.. ........ 45

V. The "Taking Issue" in Alabama Land Use Law
Decisions ................ o ................................. 49

VI. Conclusions and Suggestions for Alabama ..................... 52

Footnotes ........................... ...................... 54

FLOOD PIAIN AND COASTAL AREA IAND USE CONTROLS

INTRODUCTION

Although all land use problems are increasingly more complex and

important, none seem more immediate than the controlling of use in flood

plains and wetlands or estuarine lands. It has been strongly argued that the

two situations are not only similar but are intrinsically part of the same

legal and factual fabricl because "concern over the interrelatedness of land

uses has led to a recognition of the need to deal with entire ecological
systems rather than small segments of them.,,2 Yet the end results of the

two land and water controls are different, at least in degree. Flood plain

controls are created to prohibit construction which may damage property and

endanger lives downstream. Wetland or Coastal Management legislation is

aimed at trying to preserve delicate ecological systems which affect the

future of wildlife and the entire chain of natural phenomenon in the area.

Wetland controls may affect persons and their property far removed from

the source of the land use, and perhaps all of us. Flood plain controls affect

persons and property mainly within the watershed affected, although it must

be admitted that dredging and filling in a natural river may affect the natural

ecological chain.

Although all of these land use measures are negative in terms of land

development, flood plain regulations usually control the construction of

structures rather than prohibit them completely. It is difficult to imagine

allowing structures within estuarine areas in the same fashion as in the

flood plains.

Because of these reasons, this report will discuss Flood Plain Land

Use Controls apart from Coastal Management programs. E ach part will

discuss the background of state legislation generally, the nature of the Ala-

bama Statutes involved, and the analogous cases which have arisen in other

states under similar statutes. Another section will discuss the entire

question called "The Taking Issue, 11 which will assess the future of and the

possibilities for effective and successful land use controls.

1. FLOOD PLAIN ZONING

A. The Practical Beginning of Flood Plain Zoning in the United Stat--s

As was stated in an earlier report, 3 Congress passed the National

Flood Insurance Act in 1968 which, in effect, is utilize d as a tool to entice

States and local governments to create flood plain land use controls. The

Statute authorizes the Secretary of Housing and Urban Development to carry

out a program to facilitate the purchase of flood insurance against property

damage, but before flood insurance will be issued, "an appropriate public

body shall have adopted permanent land use and control measures (with

effective enforcement provisions) which the Secretary finds are consistent

with the comprehensive criteria for land management and use under section

4102 of this title.',4

The "comprehensive criteria" developed by the Secretary is based on

studies and investigations, and the criteria will serve as the standard for

evaluating the adequacy of the state or local land-use controls and other

management techniques. The criteria developed must have the purpose of

(1) restricting the development of land which is exposed to flood damage

where appropriate, (2) guiding the development of proposed construction

away from flood-prone areas, (3) assisting in reducing damage caused by

floods and (4) otherwise improving the long-range land management and use

of flood-prone areas. Subsidized insurance will cover only existing

structures, but actuarial rates are created for new structures or improve-

ments to older ones. 5

The flood insurance program is only a partial device to aid the states

and local subdivisions in an effort to create reasonable land-use controls to

reduce losses to all kinds of property, public and private. Realistically,

insurance can only compensate private losses. It cannot prevent damage and

disruption generally. Insurance by itself does not make property owners

more cautious, and it can cause laxness. Thus the insurance program is-

only an aid in helping the states begin to regulate land use in flood-prone
areas. 6 In other words, land-use control near waterways of all kinds is a

necessity for the protection of entire communities.

What has happened since 1970 under this statute is very significant

to an understanding of the present and future handling of flood plain zoning.

Many small rural communities have never created any sort @of -land use

control program. Consequently the Department of Housing and Urban De-

velopment (HUD) has had to try to ease the path to flood plain zoning for

these communities. Even with most populous counties and communities,

flood plain land use controls are new programs. The State legislatures

generally have rushed to enable local communities to develop land use control

systems under the Federal guidelines. Once the communities are given the

power through legislative enabling statutes, the Secretary of HUD through

the Federal Insurance Administration, will allow communities to create an

ordinance which, although not of the variety necessary for permanent flood plain
insurance, will demonstrate a good faith in issuing building permits.7 Once

the community has started its program and insurance is issued, local authorities

must thereafter pass other ordinances which become the basic land use controls,

8
i.e., flood plain zoning. In defining the flood plains and flood hazards under

'11 help the local
the ordinances, the HUD, Federal Insurance Administration wi

authorities with scientific aid but the local authorities are ekpected to do their

part. It is in this area especially, that the State Agencies M,'ust aid the local

9
officials.

B. The Alabama Flood Plain Zoning Statut

When reading the Alabama statute entitled "Comprehensive Land
Management and Use Program in Flood-Prone Areas"10 it is readily

realized that the Act was passed to enable counties to become eligible under

the Federal Program. In fact, as part of the land use and control enabling

section, it is said that the counties may create such "additional standards as

may be necessary to comply with federal requirements for making flood in-

surance coverage under the National Flood Insurance Act of 1968 available
in this state. I'll Counties are given broad powers to enact zoning, sub-

division, building codes, and health regulations in order to protect the com-

munity against loss because of exposure to flood damage in flood-prone
areas. 12 Floods are defined as "the general and temporary condition of
partial or complete inundation of normally dry land areas.,,1-3 "Flood

prone area" is defined (in accord with the Federal regulations) as "any area

with a frequency of inundation of once in 100 years as defined by qualified

hydrologists or engineers using methods that are generally accepted by

persons engaged in the field of hydrology and engineering. 114 The counties

are authorized to create a county planning commission "for the purpose of
enforcing this chapter, 1115 as well as a "county board of adjustment,,16

with powers similar to those granted under the general zoning enabling acts.

The statute, however, clearly provides that the jurisdiction of the counties

are only "outside the corporate limits of any municipality in the county.,,17

The last point emphasizes the fragmentation of jurisdiction which

18
can arise in flood plain land use planning. Although the counties have

extensive enabling legislation relating to flood plain zoning, municipalities

do not specifically have such power. The broadly worded zoning enabling

act Title 37, section 777 states that municipal zoning regulations are de-

signed "to lessen congestion in the streets, to secure safety from fire,

panic, and other dangers; to promote health and the general welfare.... to

facilitate the adequate provisions of transportation, water, sewerage....
and other public requirements.... 1119 But one must interpret these words

to cover flood plain zoning. There are also broadly worded subdivision

controls, and statutes relating to the regulation of new and old constructiofi,

which, again, if liberally construed, could serve the purpose. But the plain

fact is that there is still no legislation at a statewide level dealing per se

with municipal land use control of flood prone areas for those purposes.

Thus, the cities of the state cannot zone beyond their boundaries, and

the counties do not have power to zone the flood plains within municipalities.

It is quite possible, however, that the Federal Insurance Admi nistration of

HUD will suggest that the counties and cities work together in their

zoning and management of the flood plains, and there is enough statutory

material on the books to enable them to do so. The New York Court

has indicated a strong resentment against "community autonomy in

land use controls,,21 and it is not inconceivable that courts will utilize the

flood plain zoning situation to demand that different political units work to-

22
gether to achieve "comprehensive" land use planning and zoning.

There is an important omission in the act relating to existing

structures in the flood prone areas. Alabama case law protects the non-

conforming use under zoning provisions generally against retroactive
zoning, 23 but in other states there is an increasing use of provisions which

amortize non- conforming uses over a period of time, and this is thought to
be especially important in flood prone areas. 23a Some statutes are using

amortization provisions, i.e. , requiring elimination of nonconforming uses

after a fixed period of time determined by the value of the building involved.

These statutes have had a rather mixed reaction from the courts, but many
decisions have upheld them as constitutional. 24 In any event, this point

should be emphasized for future legislative consideration.

C. A Perspective Over and Recent Examples of Flood Plain Control

Case Law

Although this survey of cases is designed to update our earlier dis-
cussion of decisions on flood plain zoning in 1970,25 it is important that we

not lose sight of earlier signposts in the law. It is also important that we

realize our approach to be rather arbitrary. Dividing the flood plain zoning

cases from the coastal management or zoning cases tends to blur the

similarities. In both types of cases there is to a great extent a series of

restrictions and prohibitions on building along waterways of all kinds. Our

attitude, however, is that flood plain management can tolerate more land

use than coastal management because of the difference in the ends to be

attained.

There are relatively few decisions dealing with flood plain and

coastal area land use controls. This is to be expected, however, because

the statutes are of recent vintage. Connecticut, as late as 1964, had the

first clear-cut flood plain zoning case in the much discussed Dooley v
Town Plan. & Zon. Com In of Town of Fairfield. 26 In 1961, the Town

amended its zoning regulations by creating a new zoning classification called

-,?flood plain district. About 404 acres were changed from "residential" to

"flood plain district. Most of the area zoned was considered as tidal

marshland subject to flooding by a stream called Pine Creek, and to hurri-

cane flooding in the years 1938, 1944, and 1954. The land was restricted to

use for parks, playgrounds, clubhouses, landings and dry docks, wildlife

sanctuaries, farming, and parking accessory to other uses. Excavation,

filling or removal of earth or gravel was forbidden except by special ex-

ception and then for only a limited time. The Supreme Court of Connecticut

nullified these restrictions because the Town Itfroze the area into a practically

1727
unusable state, and, since most of the value of the property was sacri

ficed, the occ@sion was appropriate for the exercise of eminent domain.

The court said that the use for parks or wildlife sanctuaries actually re-

stricted the property to governmental uses, and since the property was

about a half-mile from Long Island Sound, marinas, boat houses, and docks

were impractical. Farming on the land was practically ruled out by experts,

and it was noted that the value of the land had depreciated at least 75 percent

because some of the property was under contract for sale for residential

use in the price range of $15, 000 to $17, 000 per lot.

Connecticut also had an earlier case28 in 1959 wherein the water

resource S'commission established a line along the bank of the Naugatuck

River beyond which no structure or encroachment could be placed unless the

commission specifically authorized it. The line established by the com-

mission left the subject property only sixty square feet for the building of

any structure thereon. Five stores and six residential apartments had been

on the land for 60 years but a flood in 1955 had destroyed these buildings.

Plaintiff requested the right to build a cinder-block building on a concrete

foundation to be used as a market along the river. The court did not grant

redress to the plaintiff but did qualify the state's control over the riverbank.

The court said:

"The commission has, at most, refused its permission

for the erection of a particular structure. Whether the

plaintiff could build another type of structure - for

example, one on piers or cantilevers - which would not

impair the capacity of the channel in time of flood is a

matter which the commission was not asked to, and did

not pass upon . . . .

. . . The trial court found that the encroachment

lines as established by the commission extend for

several miles along the Naugatuck river, accord with

sound engineering principles and statutory require-

ments, and were designed to reduce hazard to life

and property in the event of recurring floods, The

commission did not abuse its powers in proceeding by

way of regulation rather than by way of eminent

domain. As to its refusal to allow the plaintiff to

construct a cinder-block building on a concrete

foundation within the encroachment line; this action

was, under the circumstances of this case, justi-

fiable . . . . It did not necessarily mean that no

structure which would serve the plaintiff Is purposes

and permit the economic utilization of the property in

his control would be allowed. Until it appears that the

plaintiff has been finally deprived by the commission

of the reasonable and proper use of the property, it

cannot be said that there has been an unconstitutional

taking of property without just compensation. 1129

Two 1971 decisions on flood plain zoning, as such, tend to follow the

pattern of the Connecticut cases, i. e. that flood plain zoning is generally

constitutional but may be arbitrarily applied to individual tracts. Both cases

are lower State Appellate Court opinions. In American Nat. Bank & T. Co.

v. Village of Winfield, testimony showed that 70% of the site involved was

within the flood plain of a 1954 flood. The owner of the 32 acre tract wished

to build an apartment complex on the land. The only use allowed him under

the zoning ordinance was the construction of single family residential dwell-

ings, and he found that a great deal of soil would have to be utilized as fill

in order to accomplish this purpose. The apartment complex could be de-

signed in such a fashion that no soil would have to be hauled in. The value

of the property as zoned for single family dwellings was $6, 000 per acre

compared to $33, 000 an acre if rezoned for the desired multiple family

buildings. Testimony showed that although the tract was a prime natural

recharge area for the central and western part of the County, the flood plain

area could be preserved and the recharge area preserved by the proposed

creation of a lake and the proper direction of water drainage from roofs and

parking areas. But it was agreed by all who testified on both sides that

single family homes would result in substantially the same amount of im-

permeable coverage of the flood plains as the proposed apartment complex.

The Illinois Court of Appeal held that the flood plain restrictions un duly

burdened the plaintiff Is land use rights and said:

"The ultimate question presented by this case is not

whether ideally any impairment of the natural state

of the subject property should be allowed but rather,

whether the present ordinance is unreasonable in re-

stricting the land to single family uses and precluding

multiple family use. Thus, we think the trial court

properly observed that maintaining the property for

open recreation or park purposes would be

beneficial to the public; but that this was not the issue.

As the trial court noted, the public may acquire the

flood plain and water recharge areas by eminent

domain, but cannot require plaintiffs to bear a greater

burden than other property owners in supplying public

facilities. The result of the trial court's holding was

to permit the highest and best use of the property but

with due regard for engineering solutions which would

be in the public interest of. preserving as much of the

flood plain and water recharge area as possible. The

-decree was therefore made subject to approval of

plaintiff Is engineering plans by the Village engineer.

The finding that this condition has been met is

included in the supplemental decree.,,31

In Sturdy Homes, Inc. v. Township of Redford, 32 the zoning

ordinance created a flood control area in which one-family dwellings could

be constructed, but it was later amended to restrict any structure which

would be inhabited under any circumstances. The plaintiff Is land was placed

in the flood plain, but although the general area had suffered two serious

floods, plaintiff Is land had never been flooded. The lower court found the

entire flood plain ordinance to be unconstitutional on its face as confiscatory

and a taking of property without just compensation,

The Michigan Court of Appeal held that the ordinance clearly deprived

plaintiff of any use of his property because under the amendment he could

only create publicly-owned and operated parks, libraries, parkways, and

recreational facilities. "This is indeed a classic case, 11 the court said, Itin

which the application of the zoning ordinance to the particular property
amounts to expropriation. 33 On the other hand, they held, the lower court

was wrong in finding the entire ordinance unconstitutional as the testimony in

the case only related to plaintiff Is property.

It is important to realize that in all of these decisions the courts

were dealing with ordinances which came close to granting a landowner

almost no land use of flood plains. The situation is difficult to defend when
an "all or nothing approach, 11 is taken. 34 Yet there is little doubt that

freedoni to use Land for a reasonable profit. is not absolute.

. . . under the cases there is a difference between

'low rent' and 'no rent' [but] . . . the law should not

protect the landowner's laziness in waiting for the

economic users to come to him once feasible economic

uses have been established. ,35

The latest case on flood plain zoning and the decision proponents of

stringent controls are now most excited about is the 1972 case of Turnpike
Realty Company_ v. Town of Dedham. 36 There the Massachusetts Supreme

Judicial Court upheld strict regulation of flood plain land use in the face of

heavy devaluation of the land brought about by the regulations. Plaintiff Is

land consisted of .61. 9 acres composed of generally low lands along the

Charles River and Mother Brook. The land includes two knolls, one of 3. 2

acres and the other of .2 acres, which rise above the elevation of the lowland.

The land was subject to periodic flooding which at times reached four to five

feet. The. Town created a flood plain district and under its. zoning by-laws

prohibited land fill or dumping, damming or relocation of water courses, as

well as.buildings or structures for "sustained human occupancy. 11 It also

provided that no structure or building shall be erected, altered, or used

except for "one or more of the following uses: Any woodland, grassland,

wetland, agricultural, horticultural, or recreational use of land or water not

requiring filling. Buildings and sheds accessory to any of the Flood Plain
uses are permitted on approval of the 1,k)ard of Appeals . . . 11 37 and uses

may be permitted by the Board where lands are not subject to flooding.

Plaintiff claimed that its land was "artifically" flooded by manipulation of

the flood control works on the Charles River, and argued that the by-law

relating to the denial of residential use was arbitrary and unreasonable.

In answering the charge that the restrictions were unreasonable and

unduly burdensome the court said that plaintiff could obtain a permit to build

on land not subject to flooding or not unsuitable because of drainage con-

ditions. They said that an example of the type of situation where a land-

owner might resort to a permit for any use would be the two "knolls" on the

land which rise above the general level of flood and swamp. As far as land

subject to flooding, the plaintiff has not been deprived of all beneficial uses

because they are permitted to use the land for certain named uses which, al-

though substantially restrictive, still "must be balanced against the potential
harm to the community from overdevelopment of a flood plain area.,,38

II. ALABAMA'S COASTAL ZONE MANAGEMENT ACT: A DILEMMA

WITHIN A DILEMMA

A. The Background of the Statute

In 1972 Congress passed the Coastal Zone Management Act in re-

sponse to concern about the continuous erosion and destruction of ecologically

important shorelines and wetlands. 39 It has been said that it is ironic that

the very reason for people coming to the shorelines, i.e. , the scenery and

40
the estuaries where fish life propogates, are the basis for the destruction.

People fill-in marshes, shorelines and wetlands, in order to live and work

41
near the sea, they cause pollution thereof, and then bring in their mass

transportation and their "paraphenaliall to have access to the shorelines, all

42
of which contribute to the problem. The problem becomes one of dealing

with what has been called the "edge", i. e. , the zone of contact between land

and water, the significant ecological, recreational and commercial area,
where the land and water environments meet. 43

What Congress was trying to do was to create a start toward coast-

line protection, a "stopgap" measure, which after study would bring on.

effective national legislation. 44 The -1972 Act was a cautious avoidance of

intruding on State prerogatives, and in effect, contained no effective
sanctions. 45 Besides holding out money for research activities if the State
passed a Coastline Management Act46 acceptable to the Secretary of Com-

mercd, it was provided that the various Federal Agencies involved in coast-

line problems, -such as the Corps of Engineers, would work within the State

47
legislative framework and aid those States. in other words, States which

-passed acceptable acts would receive special attention from Federal officials

working in coastline matters. The Secretary was also authorized to create

a Coastal Zone Management Advisory Committee to advise him on policy

matters concerning the coastal zone. 48 That Committee was formed and

has had a number of problems trying to'work with various localities. The

age-old State versus Federal control controversy has already started to
affect coastline management. 49

In the light of all of this, the Alabama legislature passed its Coastal
Area Act in 1973. 50 The first three sections 51 of the Act generally follow

those of the Federal Act, the gist of wh ich is to protect not only marine re-
sources and wildlife which are "ecologically fragile,,,52 but alsoto conserve
"natural and scenic characteristics. 53 The first section recognizes the

competing demands for development and preservation but emphasizes that

there is an "urgent need to balance" and this should be brought about by a

cooperative effort with counties, municipalities, the State "and other vitally
affected interests.,,54 The second section describes State policy in terms of

encouraging and assisting "counties and municipalities to exercise effectively

their responsibilities . . . through the development and implementation of

administrative programs to achieve wise use of the land and water resources

of the coastal areas giving full consideration to ecological, cultural, historic,
and aesthetic values as well as to needs for economic development. 11 55 In

addition, adequate consideration should be given to harbor facilities for oil
and gas as well as utility facilities. 56 The definition section closely tracks

the Federal Act and the coastal area is said to mean not only coastal waters

but also adjacent shorelands which "includes transitional and intertidal areas,

salt marshes, wetlands, and beaches . . . but extends inland from the

shorelines only to extent necessary to control shorelands, the uses of which

have a direct and significant impact on the coastal waters. "57

The rest of the statute deals with exemptions, compositions and

functions of the Alabama Coastal Area Board, the development of a program

by the Board, procedures for permit applications (in rather great detail),

appeals, and penalties. Although all sections are significant, three of them

invite immediate attention and comment.

B. The Exemption Section and Equal Protection

Section 315 exempts from the permit system numerous activities,

among which are construction and maintenance of piers, boathouses, "and
similar structures, ItH the "use of any structure or land devoted to dwelling

uses for any purpose customarily incidental to enjoyment of the dwelling;"59

all "areas developed in the future by federal, state or county governments

for the establishment of a superport or a pipeline buoy terminal for deep-

draft, ocean-going vessels where regulated by federal or state agencies in
a manner consistent with the purposes of this act;,,60 activities "associated

with or is necessary for the exploration, production or transportation of oil

or gas when such activity is conducted, in a manner consistent with the

purposes of this act, 11 under a valid permit granted by a "duly constituted
agency of the State of Alabama;,,,61 normal maintenance and repair activities

of any utility . . . or renewing on private or public rights of way any

sewers, mains, conduits, pipes, cables, utility tunnels, power lines,

towers, poles, tracks or the like, or making service connections thereto,

or inspecting, maintaining, repairing, or renewing any substation, pumping
or lifting facility. ,62

This exemption section could create a legal problem which may

attack the basic constitutionality of the entire Act. Any person denied a

permit may claim that his position has been unfairly or illegally classified.

All who are similarly situated must be treated in a similar fashion, and all

such persons are entitled to the equal protection of the laws. Where, for

example, the purpose of the regulation is to prevent injury to wetlands, and

a developer is denied the right to fill his land for the building of a resort

condominium, the Statute which exempts an oil company or a superport

authority from the same regulations as the developer, can be argued to be

denying the developer equal protection of the law. The argument has been

described in this fashion in terms of flood plain regulations:

"The basic evil of a classification which excludes

private activity but which permits obstructions by

government and by public utilities is that landowners

within the flood water area are forced to bear the

external cost of the permitted activity while other

persons, without cost, share In Its advantages. Tiis

would seem to violate all principles of eq uity or

63
ability to pay in providing for public benefits.

C. The Constitutionality of the Board's Power to Regulate

Section 318 creates a permit system under which a permit may be

64
denied by the Board for any activity not excepted by the Act. Although

this "denial, suspension or revocation" of a permit can-be appealed to the

65
circuit court of any county having jurisdiction over the propertY9 it can

argued that this is an unconstitutional general delegation of the police

-powers of the State without the specific power to zone. The statute in section

317 grants the Board the right to set "Broad guidelines on priority of uses in
-p as. 66 The general rule in the United States V.1
-Articular are pro 'Ides that a

general grant of police power does notinclude the power to create and en-

-force zoning ordinances. "Nothing less than a specific grant of zoning

67
.-power will suffice. It would seem that if a municipal legislature cannot

zone without a specific grant of the power to do so, then an administrative

67a
body may not do so. - On the other hand, it can be argued that the statute

@ais clearly a special grant of power to combat a specific evil, well outlined

in the statute. It would be most unfortunate if a successful attack was mounted

,against the Alabama statute on this point.

There is little doubt about the legislative intention in this statute.

Fragmentation of control over the coastline areas is not the way to conduct
a wetland management program, 68 and the legislature seemed to avoid the

difficulty. Leaving all wetland control to individual counties or cities in-

volved is as dangerous as it is in land use law generally. Most wetlands

legislation in the country is centrally administered, 69 although Virginia for

example, authorizes local governing authorities to regulate wetlands by

zoning the areas subject to some supervision by the State Marine Resources
Commission. 70 The San Francisco Bay Commission is a good example of a
successful regional bay and shoreline program, 71 and the courts seem to be

receptive to controls over the "uncoordinated, haphazard" dredging and fill-

ing of that valuable natural resource, 72

D. Definitions of Coastal Areas in the Statute, and State versus Private

Ownership_of Shorelines and Wetlands

One of the toughest problems which can and will arise under all of the

coastal zoning statutes, including Alabamals, is the extent of land the Act

describes and regulates. The definition in section 314 of the Alabama statute

is almost a paraphrase and restatement of the original Congressional de-

finition. The coastal area is said to include "the adjacent shorelands (in-

cluding the waters therein and thereunder) strongly influenced by each and

in proximity to the shorelines of Alabama, and includes transitional and

intertidal areas, salt marshes, wetlands and beaches," and extends "inland

from the shorelines only to the extent necessary to control shorelands, the

uses of which have a direct and significant impact on the coastal waters. 1173

If the state "owns" the regulated areas, whatever they may be, then

few legal problems affecting private landowners arise. The courts have

generally held that the states own the beds of navigable waterbodies to the

high water marks. 74 In Alabama, it has been held that the State is held to

own only to the low water mark on navigable rivers, but on rivers subject to

75
the ebb and flow of the tide, the ownership is to the high-water mark. it

has been held, however, that insofar as the tidewaters are concerned, there

is no distinction upon the ground of navigability between the shallows and.

depths of navigable waters; and waters flowing over lands in Mobile Bay,

even though not navigable in fact, are owned by the State to,the high-water
mark. 76 If the high water mark is the upper limit to the wetlands, then
ecologically important marshes and wetlands are covered to some extent. 77

But tidal waters flow through and around much land with vegetation, and
establishing the mean high-tide line can become very difficult. 78 Even

establishing a high tide line in any instance of controversy evolves into a

burden of proof problem. Whether the burden of proof should be placed on

the State because of its great financia1 and physical resources is a continuing
question. 79

Many other questions arise as to ownership of tidal waters and lands

adjacent thereto. Could private citizens have adversely possessed or

prescribed against such lands? Although adverse possession and pre-

scription do not run against the State of Alabama today, there was a period

in the State's history (1852-1908) when private ownership of State owned
property could be acquired by adverse possession and prescription. 80 Yet,

even today, the State can be Ilestopped" to demand that a use of a navigable
waterway bed for a long period be discontinued. 81 However, public streets,

highways, parks and other lands dedicated to the public use have been de-
clared not to be susceptible to adverse possession or prescription. 82

Navigable waterways in Alabama have been said to be "public thoroughfares"
both under statute and court decisions. 83 For this reason, it would seem

that it would be very difficult to convince the courts that one could adversely

possess or prescribe against the lands under navigable waters, including

those lands under the "shallows and depths of navigable waters, 11 as the court
put it in United States v. Turner. 84

Another important correlative question in this area concerns the

alienation of state lands considered tidal waters. Under the Alabama Con-

stitution, the State cannot convey lands "to corporations or associations for

a less price than that for which they are subject to sale to individuals . . .,,85

The legislature has authorized the sale of any lands, not presently used for
governmental purposes, 86 but the governor is authorized to issue patents to

purchasers of "swamp and overflowed lands" made prior to October 10, 1903,
upon sufficient proof being made that payment was given therefore. 87

Classically, the States, like the English Crown were supposed to

hold the titles to the beds of navigable waterways "in trust" for the public

good, for the public rights of navigation or fishery and they could not confer
upon a grantee a greater right than originally held. 88 Although there have

been conveyances of the beds of navigable streams in Alabama, the courts

have said that the grant must not be inconsistent "with public interests to
which the navigable waterways are permanently originally dedicated. 11 89

Although the State of Alabama has claimed absolute ownership of

shellfish and "seafood existing or living in the waters of Alabama not held in

90
private ownership legally acquired" under navigable waters, the State has
always recognized some type of private rights in them. 91 The State has

also authorized riparian owners to build wharves and docks on navigable

waterways, but they are subject to a navigational servitude, and it is pre-
sumed, the traditional servitude allowing fishery rights. 92

If it is so that the State may alienate various property rights in lands

including those of the tidal variety, the re are also questions of the right to

shoreline property created through the processes of accretion, reliction,

avulsion and erosion. The. common law rules seem to be in existence in

Alabama to the effect that land built up at the edge of riparian property by

gradual and imperceptible deposits belong to the riparian owner, while
acerIetions from sudden avulsion belong to the State. 93 But a famous

Alabama case held that some 55. 91 acres of land resulting from dredging by

the Corps of Engineers in Mobile Bay, which had accumulated and become

high, solid and firm ground covered with grass, shrubs and trees above the
mean high tide of the Bay, belonged to the riparian owner. 94 The court
called this "streamlined accretion or perhaps a reclamation. 11 95

What this discussion finally leads to is the entire problem of the

'taking issue. 11 If the State finds a paramount necessity to regulate

privately owned shorelines and wetlands, the question which inevitably arises

is whether the regulations can become so onerous as to amount to a taking of

private property without just compensation to the privately held rights. The

so called "public trust" doctrine, i.e. , the State holds the wetlands and

shorelines in trust for all of the people and can regulate them to preserve

their important ecology, may be a good part of important arguments which
can be utilized against constitutional attacks. 96 As has been recently stated

in an important recent study of the subject:

"In general, it is argued that actual title to tidal wet-

lands remains in the states because the state holds

that title "for the public trust. 11 Important qualifi-

cations exist, since the state may grant rights of

usage ordinarily associated with ownership such as

wharfage and excavation. While the parameters

governing the public trust in tidal wetlands are fuzzy,

Maryland's highest court has approved legislation re-

asserting state title in "lands under the navigable

waters of the state below the mean high tide, which

are affected by the regular rise and fall of the tide.

Looking to the rights held by riparian owners, they

found there was no inherent right to dredge sand and

gravel from the tidal lands which could not be absolutely

prohibited by the state to preserve the state's natural

resources.97

In the same fashion, the Attorney General of the State of Georgia has

said:

. . . the development of the legal ramifications sur-

rounding the State Is ownership has indicated the

existence of a public trust administered by the State and

covering the marshlands of the State which imposes upon

the ownership of such lands various burdens in favor of the

general public. As a result, the marshlands of Georgia

are not susceptible to private exploitation or conser-
vation without regard to the common-law trust purposes
to which these lands have been long dedicated. 1198

III. EXAMPLES OF JUDICIAL REACTION IN THE UNITED STATES TO

COASTAL MANAGEMENT AND ZONING FACT SITUATIONS

It is, of course, extremely difficult to distinguish between many of

the legal issues of the flood plain zoning cases and the Coastal Management

and Zoning situations. The "taking issue" is always present and is the crux

of the conceptual arguments. There is, however, the distinction in fact

situations which can be emphasized, and again, as we have often said, there

are differences in the means and ends of each set of regulations. In both

situations one often finds the landowner endeavoring to fill and/or dredge fill

his land. In the flood plain zoning situation, filling land and building above

the flood stages has been a preferred type of use, while in the coastal

situation, filling is a very detrimental act.

A decision which bridges the two situations is the much cited Morris
County Land Improvement Co. v. Parsippany-Troy Hills Township. 99
Plaintiff Is property' consisted of 66 acres in a corner of a large 1500 acre

swamp called Troy Meadows. The Meadows was once part of a large lake

but is what is now called "typical swampland, with a high water table and
marsh grass and cattail vegetation. The surface soil is black or*dark brown

muck and peat, two to six feet deep, wet and very unstable. The second

stratum, from two to four feet in thickness, consists of clay and silt

materials which drain poorly and are highly compressible in nature. The

bottom layer is composed of sand and gravel, found, on the average, seven

or eight feet beneath the surface. The testimony in the case is uncontra-

dicted that the two top layers will not bear structures, are unsuitable for fill

and would have to be removed and the land filled with proper material before

it could be used for any active purpose, except possibly the raising of fish
or the growing of aquatic plants, 11100

About 751/c of the land is owned by a private conservation and pre-

servation group, called "Wildlife Preserves, Inc. 11 and they do not want any

part of Troy Meadows to be filled because the effect would be biologically

adverse to the conservation of wildlife, Wnen plaintiff acquired his Troy

Meadows land he also owned land across the road wherein he conducted a

sand and gravel business, and it was zoned for industrial use. At the time

plaintiff purchased the meadow land, it was zoned in the most restrictive

residential classification, but it was demonstrated that no one would build an

expensive home in a marsh. An amendment to the zoning ordinance "forbade

any new use, or change in existing use except for agricultural purposes or

the growing of fish, water fowl and water plants, and also forbade any dump-

ing or other disposal of material or any change in the natural or existing
grade of the land. 11101 unless a permit was secured. The plaintiff attacked

the classification and was unsuccessful in his application for a rezoning of

his property. Thereafter new regulations permitted essentially the same

uses except that a one family dwelling could be constructed as an adjunct to

any uses allowed, such as "commercial greenhouses, raising of aquatic

plants, fish . . . 11 and additionally "radio or television transmitting stations
and antenna towers" could be erected. 102 In deciding for the plaintiff the

court said:

"From the evidence it is apparent that these almost

"freezing" regulations were enacted as a stopgap or

interim measure with the expectation or hope that higher

governmental authority might well acquire the area as

part of a large and much discussed flood control project

to benefit the entire Passaic Valley - a project which has
not yet come to pass, 103

There cannot be the slightest doubt from the evidence

that the prime object of the zone regulations is to retain
the land substantially in its natural state. 104

It is equally obvious from the proofs, and legally of

the highest significance, that the main purpose of en-

acting regulations with the practical effect of retaining

the meadows in their natural state was for a public

benefit. This benefit is twofold, with somewhat inter-

related aspects: first, use of the area as a water

detention basin in aid of flood control in the lower

reaches of the Passaic Valley far beyond this municipality;

and second, preservation of the land as open space for the

benefits which would accrue to the local public from an

undeveloped use such as that of a nature refuge by Wild-
life (which paid taxes on it). 105

The universal truth of the pithy observation of Mr.

Justice Holmes in Pennsylvania Coal Co. v. Mahon

260 U. S. 393, 415 . . . (1922) must not be disregarded:

'The general rule at least is that while property

may be regulated to a certain extent, if regulation goes

too far it will be recognized as a taking . . . . We are

in danger of forgetting that a strong public desire to

improve the public condition is not enough to warrant

achieving the desire by a shorter cut, than the con-

stitutional way of paying for the change.

While the issue of regulation as against taking is

always a matter of degree, there can be no question

that the line has been crossed where the -purpose and

practical effect of the regulation is to appropriate

private property for a flood water detention basin or

open space. These are laudable public purposes and

we do not doubt the high-mindedness of their moti-

vation. But such factors cannot cure basic uncon-

stitutionality. Nor is the situation saved because the

owner of most of the land in the zone, justifiably de-

sirous of preserving an appropriate area in its

natural state as a wetland wildlife sanctuary, supports

the regulations. Both public uses are necessarily so

all encompassing as practically to prevent the exercise

by a private owner of any worthwhile rights or benefits

in the land. So public acquisition rather than re-
gulation is required. 11 106

The court in a footnote to the opinion then made a very significant

point. It said that there was no evidence that this legislation dealt wi th the

matter of intra-municipal flood control. It did not appear that the rise in

water level affected any other area in the township. The emphasis was on

use as a detention basin for the benefit of lower valley sections rather than

on any effort to prevent or channel it.

"This case, therefore, does not involve the matter of

police power regulation of the use of land in a flood

plain on the lower reaches of a river by zoning, build-

ing restrictions, channel encroachment lines or other-

wise and nothing said in this opinion is intended to pass
upon the validity of any such regulations. ,107

It is normal, when discussing cases on this subject to include three

cases. We have already discussed the Dooley and the Morris County Lan

Improvement cases. The third case is the Massachusetts decision in Com-
missioner of Natural Resources v. S. Volpe & Co. 108 There the Commis-

sioner sued to enjoin the defendant from placing any futher fill on Broad

Marsh in the town of Wareham in violation of regulations designed to protect

marine fisheries and an estuarine complex. The defendant owned 49.4 acres

within Broad Marsh, which was part of a larger tract of 78 acres. Broad

Marsh is an area within the coastal waters which was often overflowed by the

tides. @Defendant intended to dredge a channel and basin into Broad Marsh in

connection with a marina to be constructed, but all of this was incidental to

the defendant's main project of filling the marsh for the construction of

houses with water rights for boating. The authorities did not object to the

dredging of the channel and basin, but objected to any filling of Broad Marsh.

The trial judge held that the defendant could dredge a channel to his higher

ground, which would not cause damage to marine fisheries, and therefore an

absolute restraint was not placed on the defendant's ability to develop his

land. The Supreme Judicial Court reversed the lower court citing the Morris

County and Dooley decisions, as well as Justice Holmes in Pennsylvania

Coal Co. v. Mahon. The court said:

"The plaintiffs argue as though all that need be done is to

demonstrate a public purpose and then no regulation in the

interests of conservation can be too extreme . . . .

In this conflict between the ecological and the con-

stitutional, it is plain that neither is to be consumed by

the other. It is the duty of the department of conser-

vation to look after the interests of the former, and it

is the duty of the courts to stand guard over consti-

tutional rights.

. . .whether the defendant is the uncompensated

victim of a taking invalid without compensation de-

pends upon further findings as to what uses the marsh-

land may still be put and possibly upon other issues

which have not been argued and which are:

-2. The uses which can be made of the locus in

its natural state (a) independently of other land of

the owner in the area; (b) in conjunction with other

land of the owner.

3. The assessed value of the locus for each of the

five years, 1960 to 1964, inclusive.

4. The cost of the locus to the defendant.

5. The present fair market value of the locus (a) sub-

ject to the limitations imposed by the Commissioner:

(b) free of such limitations.

6. The estimated cost of the improvements proposed

109
by the defendant.

In addition to the above decisions, the supreme courts of Maine and

-Connecticut have also reacted strongly against too burdensome regulations
imposed on wetlands. In.State v. Johnson 110 the Maine Supreme Judicial

Court upheld the State Wetlands Control Board statute as constitutional but

held that the landowners had been unduly burdened by the regulations placed

on them. There the owner was denied permission to fill a portion of his

marshlands so that the land could be offered for sale as i-esidential sites.

The lower court found that the land was unquestionably coastal wetlands

within the statute, playing an important role in conservation of aquatic and

marine resources and that the land unfilled has no commercial value.

Again, a court cited Holmes' opinion, the Doole and Morris County Land

Improvement Co. and V6122 cases, and said:

"As distinguished from conventional zoning for town

protection, the area of Wetlands representing a

Ivaluable natural resource of the State, I of which

appei-dnts' holdings are but a minute part, is of

statewide concern. The benefits from its preser-

vation extend beyond town limits and are statewide.

The cost of its preservation should be publicly

borne. To leave appellants with commercially

valueless land in upholding the restriction presently

imposed, is to charge them with more than their just

share of the cost of this statewide conservation pro-

gram, granting fully its commendable purpose

their compensation by sharing in the

benefits which this restriction is intended to secure

is so disproportionate in their deprivation of reason-

able use the exercise of the State's police power is

unreasonable . . . . fit] is both an unreasonable

exercise of police power and equivalent to taking

wi
ithin constitutional considerations.

The court went on and held that the statute generally was not uncon-

stitutionally vague and was -explicit in its intention and standards. Although

the prohibition against the filling of the appellant's land was an unreasonable

exercise of the police power they said, "It does not follow that the re-

striction as to draining sanitary sewage into.coastal wetland is subject to

112
the same infirmity.

Connecticut did about the same thing as Maine in Bartlett v. Zoning

113
commission of Town of Old Lyme, There the zoning regulations pro-

hibited any construction except wooden walkways, wharves,'duck blinds,

public boat landings and the like. A landowner could apply for a special

exception but only for the construction of a boat channel, boat house, or

pier. The court found that the commercial value of the property, if used

for other types of buildings was $32, 000 while under present restriction the

worth was $1000. This, tbe--court held, amounted to an unconstitutional

taking of the landowner's property.

Although there are less potent examples on both sides of this battle

between the "ecological and the constitutional" as Chief Just ice Wilkins put

it in Volpe, so-called conservationists and ecologists are quick to point out

114
the cases of Zabel v. Tabb from the United States Fifth Circuit Court of

115
Appeals, and Just v. Marinette Coun!Y from Wisconsin.

In Zabel v. Tabb, the suit was brought to compel the Secretary of

the Army through the Chief of Engineers to grant a permit to dredge and fill

in the navigable waters of Boca Ciega Bay in Pinellas County near St. Peters-

burg, Florida. The landowners own land above and below the water, and

they wished to dredge and fill their property in the Bay for a trailer park,

with a bridge or culvert to their adjoining upland. When the permit was

filed there was much opposition from private sources, as well as from the

U. S. Fish and Wildlife Service. The Court said that the evidence showed

the dredging and filling would have a distinctly harmful effect on the fish and

wildlife resources of Boca Ciega Bay, but no material adverse effect on

navigation. The case was decided against the government by the lower

court, but the Fifth Circuit reversed. The court held that the Congress has

the power to protect wildlife in navigable waters.

V?We hold that nothing in the statutory structure compels

the Secretary to close his eyes to all that others see or

think they see. The establishment was entitled, if not

required, to consider ecological factors and, being

persuaded by them, to deny that which might have been

granted routinely five, ten, or fifteen years ago before

man's explosive increase made all, including Congress,

aware of civilization's potential destruction from

breathing its own polluted air and drinking its own

infected water and the imm6asurable loss from:ha

silent-spring-like disturbance of nature's economy, 116

. . . In this time of awakening to the reality that we

cannot continue to despoil our environment and Yet

exist, the nation knows, if Courts do not, that the

destruction of fish and wildlife in our estuarine

waters does have a substantial, and in some areas a

117
devastating, effect on interstate commerce.

The Supreme Court of Wisconsin in the Just case had an even weaker

fact situation than in Sabel, but the Court chose to e'stablish new ground in

the subject., The Justs owned 36.4 acres on Lake Noquebay, a navigable

lake in- Marinette county. They subdivided the land and sold land extending

back from the lake some 600 feet.

"This property has a frontage of 366. 7 feet and the south

one half contains a stand of cedar, pine, various hard

woods, birch and red maple. The north one half, closer

to the lake, is barren of trees except immediately along

the shore. The south three fourths of this north one half

is populated with various plant grasses and vegetation

including some plants which N. C. Fassett in his manual

of aquatic plants has classified as, ,aquatic, There are

also non-aquatic plants which grow upon the land.

Along the shoreline there is a belt of trees. The

shoreline is from one foot to 3. 2 feet higher than

the.lake level and there is a narrow belt of higher

land along the shore known as a "pressure ridge"

or 'lice heave, 11 varying in width from one to three

feet. South of this point, the natural level of the

land ranges one to two feet above lake level. The

land slopes generally toward the lake but has a

slope less than twelve per cent. No water flows

onto the land from the lake, but there is some

surface water which collects on land and stands
in pools. 11 118

The land is designed as swamps or marshes on the United States

Geological Survey Map, and is included as wetlands under the state

statute. In order to place more than 500 square feet of fill on the land the

Justs were required to obtain a permit from the zoning administrator of the

county. They brought in more than 500 square feet on the wetlands part of

the property. The Justs sought a declaratory judgment and the court found

in favor of the county. The court formed the issues in terms of a reexami-

nation of the problem. They said that land and water in its natural state are

unpolluted. The state, under the trust doctrine, has the duty to eradicate

the present Pollution and to prevent further pollution in its havigable waters.

This is a maintenance of the natural status quo of the environment, In order

to see the court's rather unique approach, it is worthwhile to quote the

court's language extensively:

"What makes this case different from most condemnation

or police power zoning cases is the interrelationship of the

wetlands, the swamps and-the natural environment of

shorelands to the purity of the water and to such natural

resources as navigation, fishing, and scenic beauty,

Swamps andwetlands were once considered wasteland,

undesirable, and not picturesque. But as people became

more sophisticated, an appreciation was acquired that

swamps andwetlands serve a vital role in nature, are

part of the balance of nature and are essential to the

purity of the water in our lakes and streams. Swamps

and wetlands are a necessary part of the ecological creation

and now, even to the uninitiated, possess their own beauty

in nature.

Is the ownership of a parcel of land so absolute that man

can change its nature to suit any of his purposes?

This is not a case where an owner is prevented from

using his land for natural and indigenous uses. The uses

consistent with the nature of the land are allowed and

other uses recognized and still others permitted by special

permit . . . . .

Changes and filling to some extent are permitted be-

cause the extent of such changes and fillings does not

cause harm. We realize no case in Wisconsin has yet

dealt with shoreland regulations and there are several

cases in other states which seem to hold such regulations

unconstitutional; but nothing this court has said or held

in prior cases indicate that destroying the natural

character of a swamp or a wetland so as to make that

location available for human habitation is a reasonable

use of that land when the new use, although of a more

economical value to the owner, causes a harm to the

general public.

The active public trust duty of the state of Wisconsin

in respect to navigable waters requires the state not

only to promote navigation but also to protect and

preserve those waters for fishing, recreation, and

scenic beauty.

. . . To further this duty, the legislature may

delegate authority to local units of the government,

which the state did by requiring counties to pass

shoreland zoning ordinances.

This is not a case of an isolated swamp unrelated

to a navigable lake or stream, the change of which

would cause no harm to public rights. Lands ad-

Jacent to or near navigable waters exist in a special

relationship to the state. They have been held

subject to special taxation, and are subject to the

state public trust powers, and since the Laws of

1935, ch. 303, counties have been authorized to

create special zoning districts along waterway� and

zone them for restrictive conservancy purposes.

The restrictions in the Marinette county ordinance

upon wetlands within 1, 000 feet of Lake Noquebay

which prevent the placing of excess fill upon such

land without a permit is not confiscatory or un-

119
reasonable.

It seems to us that filling a swamp not otherwise

commercially usable is not in and of itself an existing

use, which is prevented, but rather is the preparation

for some future use which is not indigenous to a swamp.

Too much stress is laid on the right of an owner to change

commercially valueless land when that change does

damage to the rights of the public. It is observed that

a use of special permits is a means of control and

accomplishing the purpose of the zoning ordinance as

distinguished from the old concept of providing for

variances. The special permit technique is not common

practice and has met with judicial approval, and we think

it is of some significance in considering whether or not

a particular zoning ordinance is reasonable.

The Justs argue their property has been severely de-

preciated in value. But this depreciation of value is not

based on the use of the land in its natural state but on

what the land would be worth if it could be filled and used

for the location of a dwelling. While loss of value is to be

considered in determining whether a restriction is a

constructive taking. value based upon changing the

character of the land at the expense of harm to public

rights is not an essential factor or controlling.

We are not unmindful of the warning in Pennsyl-

vania Coal Co, v. Mahon (1922), 260 U.S. 393, 416,

43 S. Ct. 158, 160, 67 L, Ed. 322:

. . . We are in-danger of forgetting that a. strong
17
public desire to improve the public condition is not

enough to- warrant achieving the desire by a shorter

cut fhan the constitutional way of paying for the change.

This observation refers to the improvement of the

public condition, the securing of a benefit not pre-

sently enjoyed and to which the public is not entitled.

The shoreland zoning ordinance preserves nature, the

environment, and natural resources as they were

created and to which the people have a prese nt right.

The ordinance does not create or improve the public

condition but only preserves nature from the despoilage

a-nd harm resulting from the unrestricted activities of

120
humans.

IV "THE TAEING ISSUE"

In 1973, the President's Council on Environmental Quality published
a Study and Report called "The Taking Issue. 11 121 which is available through

the U. S. Goverm-nent Printing Office. The purpose of the Report was in

Chairman Russell E. Train's words to "clarify and inform public debate, in

order that American's future can be better served by a more rational system
of land use policies and controls. 11 122 He admitted that the subject (rights

of private property and the constitutional limits to public control of those

rights) is "fraught with emotion"123 and is not well understood but never-

theless one of serious national concern.

The Report is extremely well done, but is, it can be argued, almost

a brief in favor of overwhelming controls on private land use in the flood

plains and in the coastal zones. After an historical analysis of the back-
ground and the existence of the "taking clause" of the fifth amendment, 124
the report argues that Justice Holmes rewrote 125 the constitution in

126
Pennsylvania Coal Co. v. Mahon. The case dealt with a statute of the

Pennsylvania legislature which banned the taking of coal under land wherein

structures, rights of ways, cemeteries, residences, etc. , may be caused

to cave-in, subside or collapse. The plaintiffs in that case purchased

property in which the minerals had years before been conveyed. When the

coal company was about to mine they wrote the plaintiffs a warning letter.

The plaintiffs thereafter requested an injunction against the mining which

was finally refused. Holmes' analysis in the case, the Report said, went

against prior law, especially when he said that the taking issue was of

degree and not of kind. The question, he said, was where to draw the line,

and that depended on the facts of each case. Holmes, in effect, held that

the fourteenth amendment incorporated the "taking clause" of the fifth

amendment.

Thereafter, the classic zoning cases in the 19201s, Euclid, Gorieb

and Nectow utilized the Holmes reasoning and the decision became "black-

127
letter law.

T he Report then exhaustively goes into the current law not only on

flood plain and wetlands@zoning but into general zoning law as well. Open

128
space doctrines are discussed, as well as preservation of historic
building 129 and aesthetic zoning attitudes. 130 The approach then becomes

one of building the reader to a point where a strong argument is made that

the "taking issue" is really built on a myth. It is argued that most "taking"

cases in the 60's and 70's have been won' by governmental authorities.

ItMeasuring changes in the law by counting ayes and nays

is risky business, but this list gives some rough sense

of the way the cases have been going. Local govern-

ments have won most of them but then they always have.

The 'myth' of the taking clause has always lured

landowners to expect more from it than prior pre-
cedents really justify. 11 1.31

The Report then argues that some public objectives are more im-

portant than others, and that there are "heavy-weight" public purposes to be
attained over almost all obstacles. 132

"The myth of the taking clause says that government

can never tell a man that he can't "use" his land

(i.e. , make money out of it) unless it pays him

compensation. In reality, however, courts have

often upheld regulations that effectively prohibit

any profitable use of land if the regulation serves a
"heavyweight" public purpose. 11 133

Dangerous water-filled quarries, destruction of cedar trees which

spread fungus to orchards and fruit trees, and the Just v. Marinette Co

type of factual situations are given to demonstrate "heavyweight" public
purposes necessitating strong public regulation of private properties. 134

It is this type of emotive reasoning which weakens the ecologist's

approach. To argue that enjoining quarrying after the landowner has taken

vast quantities of sand and caused substantial danger to human life generally,

and to uphold regulation of fungus spreading trees to a certain distance from

orchards and fruit trees should lead to wholesale ecological controls under

most any circumstances is the type ol' brief writing and generalization Which

should be taken for what it is.

Even to the casual observer of the judicial scene, it is apparent that

courts have always been filled with "judicial restraint" when confronted

with the task of invalidating statutes and ordinances of any legislative body.

But this does not mean that astute judges, such as Oliver Wendell Holmes,

Jr., must never intervene in aid of private property owners. After the

Supreme Court zoning cases of the 1920's, state and lower federal courts

were left with the complex problem of balancing between rights of private
landowners and state control over land use. 135 It is quite difficult to find

consistent pattern s of cases and to tie it all up in a neat package. But this

is what Justice Holmes saw as the result of the dilemma of private property

ownership within a system of partial state regulation.

The ecological optimists who seem to be confounded forget the Holmes

dicta that the life of the law has not been logic but experience. If our col-

lective state and national experiences demonstrate that it is time to put

clam ps@- on private development along our coasts and our flood plains, it

shall be.so. Framing all of this in tight conceptual packages is foolishness

136
from another day.

V. THE "TAIUNG ISSUE" IN ALABAMA LAND USE LAW DECISIONS

11'we try too-ain ail overvie", ofthe Alabama decisions on land use

law, it becomes quite apparent that the courts have been quite hesitant to

overturn local zoning authorities. Examples of the courts' leniency are

abundant. The decisions relating to spot zoning and comprehensive zoning

are outstanding instances of this judicial restraint. Anytime a court

approves the notion that "the term spot zoning is nothing more than a catchy
phrase, "137 we should be forewarned that the decision makers are going to

approve a great deal of what the zoning authorities are going to do.

The*case of -Burma Hills Development Co. v. Marr 138 is also in-

structive in the same fashion. The court held there that a restrictive

covenant or the right to enforce a restrictive covenant does not constitute

a property right or interest which requires the payment of compensation to

those entitled to enforce the covenants. The cost to the state, the court

said, coLdd be highly prohibitive, and compensation to surrounding owners

would greatly restrict the rights of the state to condemn property. The

court "admitted" that they were taking a minority view in the country, but

they felt a compulsion to protect the public purse rather than the rights of

sometimes thousands of property holders.

These policy attitudes are important guides to what could happen

when the flood plains and coastal areas of Ala bama are regulated. Although

the court has held that local authorities cannot completely prohibit the

C,-Lrryiil(,- on of' a lawful hUSineSS SUCh as a rock CrUShin- plant outside of a
comprehensive zoning- ordinance, 139 it Iias also held that it can be 'Ire-
gulated. 140 The Alabama cases seem to say that the zoning authorities

may control land uses which are of danger to the general vicinity, even

though a landowner may find it extremely difficult to conform to reasonable

141
standards. In Southern Rock Products Company-Y. Self, the company

was denied a permit to carry on a quarrying operation, although the property

was zoned for general industry, because the operation would cause noise,

vibration, fumes, and dust affecting a considerable portion of the city. The

court-held that the municipality bad- authority -to pass a zoning ordinance

which regulated the use of private -property prohibiting the removal or

crushing of rock from lands lying in certain areas or under certain con-

ditions. In addition, the company had the burden of proof to demonstrate

that it was not and would not in the future affect the public with offending

noises, vibrations and dust in violation of a valid city ordi nance.

It is true that the court has held that a prohibition against any

142
"practical" use of the landowner's property would not be approved.

But the cases do not involve "nuisance-like" uses. It seems that the use

of the nuisance argument in theflood plain cases, in particular, have a

143
chance of success. Hazards wrought by quarrying and the presence of

higlf structures near airports, it can be argued, are no more dangerous

than obstructions in floodways. And if the state has wielded too heavy a

stick against all practical uses, individual landowners can appeal to boards

of adjustments for redress or to the courts where factual circumstances

demonstrate injustice. In other words "all practical use of land" does not

mean authorization of a"Inoxious" use which may injure others.

The coastal zoning issue is a harder issue for the courts. The

scarcity of uses which can be authorized along a coastal wetland squarely

raises the question of forcing landowners to shoulder the greater financial

and physical burden of protecting the shorelines. It may be, as the Wiscon-
sin court said, in Just v. Marinette Coun , 144 that landowners should only
be allowed to use these lands in their' natural states and not change the "lay

of the land. 11 But this is a new doctrine and if applied to all land use control

measures would, in effect, cut land development to an absolute minimum.
A number of eastern states, 146 Connecticut and New Jersey 147 in particu-

lar, are acquiring tidal marshlands under eminent domain powers, and in

the final analysis, this may be the only answer. Acquisiti- of key areas by

federal and state governments would be an important step in coastal land use

controls generally.

The problem lends itself to philosophical discussion. It seems that

those bent on enforcing stringent regulations are saying that landowners who

own tidal coastline areas have been given a windfall. These innuendoes go

straight to the heart of our land ownership system. The same can be said

about any kind of landowner in any part of the United States. As Holmes im-

plied, if we accept our system of land ownership, regulation of land use is a

matter of degree, and government should not cross certain lines whatever

the necessities of the case unless the danger to lives and property are im-

mense.

VI. CONCLUSIONS AND SUGGESTIONS FOR ALABAMA

The purpose of this report has been to describe and critically analyze

land use statutory and judicial matexials affecting Alabama, It is useless,

for us to appraise the law in the light of political realities unless there is a

special expertise involved. 'to say, for example, that the Alabama De-

velopment 'Office should suggest to the legislature that the exemptions in the

-Coastal Management Act be modified would bring forth a knowing smile

from an astute reader., These are the kinds of things which are quite

obviously subject to constitutional attack in our coastal management legis-

lation, and further di,9cussion would be repetitious. Yet there are

specift c proposals concerning flood plain zoning which have a reasonable

chance-of being ac cepted,

The first suggestion should result in immediate legislation. There

is no reason, except- oversight, for municipalities to lack the specific power

-to z.one their flood plains.- Enabling legislation should be quickly forthcoming.

This legislation, however, should be coupled with some type of regional

watershed controls which demand that both municipalities and counties in-

volved in the same watersheds act together to zone the flood plains, There

is a strong possibility that HUD will demand working relationships anyway

and it would be to Alabama Is credit if it began doing this kind of thing before

being ordered to do so.

No specific suggestions will be made concerning the Coastal Manage-

ment Act. Although there are provisions therein @vhich are subject to attack

on constitutional grounds, it seems that there is no real opportunity to amend

the act. Unless the legislature is receptive to the changes in the act outlined

in this report, there is no reason to tamper with the situation. At least the

present act has the merit of enabling regional controls and it is the first

Alabama land use statute to do so with appropriate sanctions.

FOOTNOTES

1. F. Bosselman, D. Callies, J. Banta, The Taking Issue 155 (1973)
The authors seemingly object to the courts treating the two types of controls
differently.

2. Ibid at 213.

3. H. Cohen, Land-Use Regulations in Flood-Prone Areas 3 (1970).

4. 41 U.S. C. � 4022 (1970).

5. H. Cohen, supra note 3 at 3.

6. Id. at 4.

7. This information was obtained through discussion with Mr. Nicholas
Lally, Director, Flood Plain Management Division, Federal Insurance Ad-
ministration, U. S. Department of Housing and Urban Development, Washington,
D. C. A sample ordinance is attached and listed as Appendix I which is of the
first variety of "good faith" ordinances.

8. S. Snow, Study of Guidelines for Land Management and Use of Flood
Prone Areas in Alabama (1973).

9. There are other new types of protections being offered in Congress
both for the protection of individuals and to help the States and local authori-
ties to enter the flood insurance programs. At present there are proposed
Congressional Amendments to the Housing and Urban Development Act of
1968 which provide that sellers or lessors of property within flood hazard
areas must notify the purchaser or lessee of such land within a reasonable
period in advance of the signing of the purchase agreement, lease or other
documents. There is also a proposed amendment allowing the Secretary of
HUD to insure protection from 100 year floods if the Secretary shall find
that the community is maldng "adequate progress" where certain percentages
of the costs of the flood protection system has been appropriated and expended.
Congressional Record, House, 5448-5449, June 30, 1974. There is some
urgency for Congress to pass legislation preventing victimization of the public
by landowners and speculators where land is flood prone. In Comment,
Ecological and Legal Aspects of Flood Plain Zonin , 20 Kansas L. Rev.
268, 273 (-274) (1972) it was said: "Flood frequency is determined by
engineering studies; therefore a layman could not be expected to appraise the

flood danger accurately without assistance from specialists. And even when
this information is available, there is evidence that it is either not fully
understood or that it is ignored. Flood control projects may be one cause of
misunderstanding. Bankers and realtors in Topeka, Kansas who have access
to information concerning flood dangers indicated in interviews that they paid
more attention to information concerning protection from floods, than to in-
formation concerning flood dangers. Because they based their decisions to
lend or buy on a distorted consideration of the facts, they contributed to
victimization of the public even though their decisions were made in good
faith. On the other hand, if the land is zoned as flood plain, bankers are not
willing to take buildings located thereon as loan collateral. Presumably the
flood danger does not become apparent until official action is taken.

10. Ala. Code, tit. 12, �341-364 (1958) (Supp. 1973).

11 Id. �344.-_

12. Id. � 342.

13. Id. � 34 1.

14. Id'. � 34 1.

15. Id. IM8.

16. Id. �359.

17. Id. �343.

18. See Teclaff, The Coastal Zone-Control over Encroachments,
J. Maritime L. and Comm. 241, 279 (1970).

19.- Ala-. Code, tit. 37, �777 (1958).

Ala. Code, tit. 37, �462, �785, �797 (1958) (Supp. 1973). See also
Wheat V'. Ramsey, 284 Ala. 295, 224, So. 2d 649 (1969).

21. See Golden v. Planning Board of Town of Ramapo 30 N. Y. 2d 359,
285 N. E.- 2d 291, 300 (1972).

22- --Seealso discussion thereof in F.@ Bos;selman, D. Callies, J. Banta,
-supra.note I-at 233-235.

23. See Gray on v. City of Birmingham, 277 Ala. 522, 173 So. 2d 67,

(1965) noted in 18 Ala; L. Rev. 182 (1965).

23a. See Hines, Howe and Montgomery, Suggestions for a Model Flood
Plain Zoning Ordinance, 5 Land and Water L. Rev. 322, 343 (1970) "The
strong policy grounds of flood plain regulation require a nonconforming use
provision which is tailored to the statutory goals . . . If the nonconforming
use provision generates political opposition, then that battle is nonetheless
preferable to flood, plain regulation which is an empty letter.

24. See R. M. Anderson I American Law of Zoning, �6.65, 446-451
(1668).
25. H. Cohen, L'and-Use Regulations in Flood-Prone Areas (1970).

26. 151 Conn. 304, 197 A. 2d 770 (1964).

27. Id. at 197 A. 2d 773,

28. Vartellas v. Water Resources Commission 146 Conn. 650, 153 A. 2d
822 (1959).

29. Id. at 153 A. 2d 825-826.

30. 1 Ill. App. 3d 376, 274 N. E. 2d 144 (197 1).

31. Id. at 274 N. E. 2d 146. On these points see Comment, Flood Plain
Zoning in Calffornia-Open Space by Another Name: Policy and Practicality,
10 San Diego L. Rev. 381 (1973).

32. 30 Mich. App. 53, 186 N. W. 2d 43 (1971).

33. Id. at 186 N. W. 2d 46. See Bartke, Dredging, Filling and Flood Plain
Regulation in Michigan, 17 Wayne L. Rev. 861, 900-901(1971) for an adverse
opinion.

34. Wilkes, Constitutional Dilemmas Posed by State Policies Agains
Marine Pollution - the Maine Example, 23 Main L. Rev. 143, 172 (1971).

35. Id. at 152. The cases demonstrate that careful drafting of the use
provisions of flood plain zoning ordinances is a necessity to avoid constitu-
tionally based attacks. See Pitney, Zoning - Areas of Critical Environment
Concern, New Jersey St. B. J. 34, 39 (No. 65, Fall 1973). See Also
Comment, County and Municipal Flood Plain Zoning Under Existing Wyomin
Legislation, 7 Land & Water L. Rev. 103, 104 (1972).

36. Mass. 284 N. E. 2d 891 (1972). cert. den. 409 U. S. 1108;
4 6 A. L. R. 3d 14 2 2 (197 3).

37. Id. at 284 N. E. 2d 894,

38. Id. at 900.

39. 16 U. S. C. A. � 1451-1464 (Supp. 1974).

40. Wilkes, supra note 34 at 149.

41. Heath, Estuarine ConservationLegislation in the States, 5 Land &
Water L. Rev. 351, 352 (1970).

42. Teclaff and Teclaff, Saying the Land-Water Edge From Recreation
For Recreation, 14 Ariz. L. Rev. 51, 63-64 (1972).

43. Id. at 51-52.

44. See N. Y.- Times, p. 50, Sat. Mar. 2, 1974.

45. The real penalties to a State which does not adopt a Coastal Area
Management Act, is denial of research funds and a kind of "black mark be-
tween the lines" with Federal officials. Of course, this may not mean much
to tough states-rights advocates. See N. Y. Times, p. 50, Mar. 2, 1974.
See also, Knight, Proposed Systems of Coastal Zones Management: an In-
terim Analysis, 3 Nat. Resources Law. 599, 603 (1970). "ftat is involved
is a struggle between uniformity and special interests . . . a strong federally
administered program of coastal zone management would ensure uniformity
and 6onsistencyin developing what is obviously a national resource; while
the unique problems of each state and locality dictate that the decision-mak-
ing apparatus be situated closer to the source of the problem.

46. 16 U. S. C. A. Supra, note 55 at �1455.

47. Id. � 1456.

48. Id. � 1460.

49. See "States' Rights Issue is Holding Up a Federal Program to Protect
Coastlines,-" N. Y Times, p. 50, Mar. 2, 1974.

50. Ala. Code, tit. 8, �312-322 (1958) (Supp. 1973).

51. Id. � 312, � 313, �314.

52. Id. � 312(c).

53. Id. � 312(e).

54. Id. � 312 (g).

55. Id. � 313(b).

56. Id. � 313(c).

57. Id. � 3 14 (a).

58. Id. � 315(e).

59. Id. � 3 15 (h).

60. Id. � 315 (i).

61. Id. � 315 0).

62. Id. � 315 (k).

63. Dunham, Flood Control Via The Police Power, 107 U. of Penn. L.
Rev. 1098, 1128-1129 (1959).

64. Ala. Code, tit. 8, � 318 1958) (Supp. 1973),

65. Id. � 319.

66. Id. � 317 (g).

67. R. M. Anderson, I American Law of Zoning � 3. 10, 140 (1968).

67a. See Comment, Coastal Land Use Development: A Proposal for Cumu-
lative Area-Wide Zoning, 49 N. C. L. Rev. 866, 881-883 (1971).

68. Heath, supra note 41 at 357.

69. Id. See also Note, Coastal Wetlands in New England, 52 Boston U. L.
Rev. 724, 739 (1972).

70. Note, State and Local Wetlands Regulation: The Problem of Taking

Without Just Compensation, 58 Va. L. Rev. 876, 880 (1972).

71. Heath, supra note 41 at 363.

72. F. Bosselman, D. Callies, J. Banta, The Taking Issue 261-262 (1973).

73. Ala. Code, tit. 8, �314(a) (1958) (Supp. 1973).

74. Cohen, Water Law in Alabama - A Comparative Survey, 24 Ala. L.
Rev. 453, 465 (1972). See also Clineberg and Krahmer, The Law Pertaining
to Estuarine Lands in South Carolina, 23 So. Car. L. Rev. 7, 10 et. seq.
(1971).

75.. -Cohen, supra note 74 at 46 8.

76. Id. at 469.

77. See the discussion in Brion, Virginia Natural Resources Law and the
New Virginia Wetlands Act 30 W. & L. L. Rev. 19, 50 (1973).

@78. Porro and Teleky, Marshland Title Dilemma: A Tidal Phenomenon
'__@Se@ '_
ton Hall L. Rev. 323, 325 (1972).

79. Id. at 326.

80. See the landmark decisions in State v. Boros, 257 Ala. 690, 60 So. 2d
843 (1952), and Statev. Inman, 239 Ala.. 348, 195 So. 448. (1940).

81. Cohen, supra note 74 at 470.

82. See Comment, Title to Subaqueous Lands in Alabama, 11 Ala. L. Rev.
273,.286 (1959).

83. Id. at 2 86.

175 F. 2d 644, 647 (5th Cir. 1949).

85. Ala. Const. 1901, Art. 4, � 99.

86. Ala. Code, tit. -55, �66 (1958).

87. Ala.-,Code, tit. 47, �60 (1958).

88. Although the subject is not one which can be easily unraveled, the

statement made here of the doctrine is the generally accepted one. For a
complete discussion of the history and relevancy of the theory see Sax, The
Public Trust Doctrine in Natural Resource Law- Effective Judicial Interven-
tion, 68 Mich. L. Rev. 473, 476-468 (1970).

89. Comment, supra note 82 at 285.

90. Ala. Code, tit. 8, � 112 (1958).

91. Comment, Oil and Oysters Don't Mix: Private Remedies for Pollution
Damage to Shellfish, 23 Ala. L. Rev. 100, 102 (1970).

92. Cohen, supra note 74 at 470.

93. Hagan v. Campbell, 8 Port. 9, 26 (1838).

94. State v. Gill, 259 Ala. 177, 66 So. 2d 141 (1953).

95. Id. at 259 Ala. 183. The latest U. S. Supreme Court case on the
subject, Bonelli Cattle Company v. Arizona, U. S. 94 S. Ct. 517 (1973) held
that the rechanneling of the Colorado River was a relocation of the waters by
artificial means and accretion caused thereby should be treated as the property
of the riparian owner. See also Rice, Estuarine Land of North Carolina-
Legal Aspect of Ownership, Use and Control, 46 N. C. L. Rev. 779, 806
(1968).

96. See Sax, supra note 88 at 553-556.

97. F. Bosselman, D. Callies, J. Banta, supra note 71 at 311.

98. Id. at 312-313. For an opposing argument see Abbott, Some Legal
Problems Involved-in Saving Georgia's Marshlands, 7 Geo. St. B. J. 27, 29
(1970).

99. 40 N.J. 539, 193 A. 2d 232 (1963).

100. Id. at 193 A. 2d 234.

101. Id. at 235.

102. Id.

103. Id.

104. Id. at 23 9.

105. Id. at 240.

106. Id. at 241-242.

107. Id. at 242.

108. 349 Mass. 104, 206 N. E. 2d 666 (1965).

109. Id. at 206 N. E. 2d 671-672. See also MacGibbon et al. v. Board of
Appeals of Duxbur , 356 Mass. 696, 255 N. E. 2d. 347 (1970).

110. 265 A. 2d 711 (Sup. Jud. Ct. Me. 1970) noted in 46 A. L. R. 3d 1422
(1972).

111. Id. at 7 16.

112. Id. at 717. It is interesting to note that the Maine court is not merely
going out of its way to halt environmental "progress. 11 In In Re Spring Valle
Development, 300 A. 2d 736 (1973) the court upheld a legislative enactment
called the "Site Location Law" which required persons intending to construct
or operate a development which may substantially affect local environment to
notify, before commencing the construction, the Environmental Improvement
Commission. The Commission can then determine after a hearing whether
the development will adversely affect the environment. Although the Johnson
case was cited, the court said that there was nothing here which constituted
an unreasonable burden on property as would amount to an uncompensated
taking as. in the Johnson case.

113. 161 Conn. 24, 282 A. 2d 907 (1971). For a discussion of.the Connecti-
cut, Massachusetts, and Maine cases see Comment, The Wetlands Statutes-
Regulation or Taking? 5 Conn. L. J. 64 (1972).

114. 430 F. 2d 199 (5th Cir. 1970).

115. 56 Wis. 2d 7, 201 N. W. 2d 761 (1972).

116. Zabel v. Tabb supra note 114 at 201.

117. Id. at 203-204.

118. Just v. Marinette Coun supra note 115 at 201 N. W. 2d 766.

119. Id. at 768-769.

120. Id. at 770-771.

121. F. Bosselman, D. Callies, J. Banta, The Taking Issue (1973).

122. Id. in "Foreword.

123. Id.

124. Id. at 104.

125. Id. at 124.

126. 260 U. S. 393 (1922).

127. The Report correctly states that the Supreme Court then almost re-
tired from 'the field' of land use law. F. Bosselman, et al, supra note 121 at 138.

128. Id. at 16 8.

129. Id. at 182.

130. Id. at 188.

131. Id. at 232.

132. Id. at 195.

133. Id. at 257.

134. Id. at 257-265.

135. Id. at 195.

136. See Sax, Takings, Private Property and Public Rights, 81 Yale L. J.
149, 186 (1971) "In short, rather than fumbling with doctrinal labels and
legal accusations, we can put our energy into trying to determine what re-
solution of conflicting uses is likely to maximize total net benefits for us, and
how we can best achieve that goal. 11 Michelman, Property, Utility, and
Fairness- "Comments on the Ethical Foundations of Just Compensation" Law,
80 Harv. L. Rev. 1165, 1258 (1967). "That Holmes had some inkling . . .
of the long view is indicated by his insistence that civilized governments
impose disproportionate hardship on citizens only when they cannot help it.
See also Van Alstyne, Taking or Damaging By Police Power: The Search
for Inverse Condemnation Criteria, 44 So. Cal. L. Rev, 1 (1971).

137. Come v. Chancy; 289 Ala. 555, 269 So. 2d 88, 17 (1972).

138. 285 Ala. 141, 229i So. 2d 776 (1969).

139. Reynolds v. Vulcan Materials Company, 279 Ala. 363, 185 So. 2d 386
(1966).

140. Southern Rock Products Company v. Self 279 Ala. 488, 187 So. 2d
244 (1966).

141. 282 Ala. 186, 210 So. 2d 419 (1968).

142. See for example, Zoning Board of Adjustment v. Wright 283 Ala. 654,
220So. 2d 261 (1969).
143. See however, Van Alstyne, supra note 136 at page 15"where it is said
in relation to the nuisance arguments, "Yet, at the same time, novel and
nontraditional policy goals, perceived as lacking in broad community accept-
ability, have sometimes failed to obtain judicial approval. Objectives with a
strong historic pattern of social approval are thus more likely to survive
constitutional attack than those which are regarded as avant garde.

144. Supra note 115

145. Heath, Estuarine Conservation Legislation in the States 5 Land and
Water L. Rev. 351, 364 (1970).

146. Id. -at 36 9. See also Comment, Coastal Zoning 4 Vand. Int. L. J.
127, 135-136 (1970). Even where the state has the right to acquire coastal
lands, "when local subdivisions are faced with a choice between retaining
their broad tax base afforded by industry; and, on the other hand, authorizing
condemnation expenditures necessary to implement the zoning plan" they do
not respond favorably when forced to choose the 'wetlands. Id. at 135.

DATE DUE

GAYLORD No. 2333 PRINTED IN U S.A

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