quiet revolution in land use control

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PREPARED FOR THE COUNCIL ON ENVIRONMENTAL QUALITY
BY FRED BOSSELMAN AND DAVID CALLIES

Publications of the
Council on Environmental Quality:

Environmental Quality-The First Annual Report
of the Council on Environmental Quality

Ocean Dumping-A National Policy

The President's 1971 Environmental Program

Toxic Substances

Environmental Quality-The Second Annual Report
of the Council on Environmental Quality

01283

THE
QUIET
REVOLUTION
IN
LAND
USE
CONTROL

PREPARED FOR THE COUNCIL ON ENVIRONMENTAL QUALITY
BY FRED BOSSELMAN AND DAVID CALLIES

U.S.DEPARTMENT OF COMMERCE NOAA
COASTAL SERVICES CENTER
2234 SOUTH HOBSON AVENUE
CHARLESTON , SC 29405-2413

Property of CSC Library

For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402 - Price $2.75
Stock Number 4111-0006

FOREWORD

The Council on Environmental Quality commissioned
this report on the innovative land use laws of several States
in order to learn how some of the most complex land use issues
are being addressed. This report is of particularly timely
interest because the President's proposed National Land Use
Policy Act (S. 992, H.R. 4332, See Appendix) would provide
Federal assistance to States to develop programs dealing
with land use issues of regional or State concern.

Many of the laws analyzed in the Report are designed
to deal with problems that are treated in the President's
proposal. The bill, for example, calls upon States, as a
condition of eligibility for Federal assistance, to identify
and control development in "areas of critical environmental
concern." The Massachusetts laws dealing with coastal and
inland wetlands, the'Wiscon.sin laws dealing with shoreland
and floodplain protection, and San Francisco Bay Conservation
and Development Commission are examples of measures relating
to such environmentally critical areas.

The President's proposal would encourage States to
assure that "development of regional benefit" is not blocked
or unduly restricted by local governments. Massachusetts'
11anti-snob zoning" law is an example of such a measure.

The National Land Use Policy Act would also ask
States to control "large scale development" and land use in
Alareas impacted by key facilities," including the environs
of major airports, highway interchanges and recreational
facilities where growth pressures tend to be irresistible.
Vermont's Environmental Control Law and Maine's Site Loca-
tion Law represent approaches to the problem of controlling
large scale development, and the Airport Zoning Act of the
Twin Cities, Minnesota, is an example of a measure dealing
with land use regulation around a key facility.

We do not necessarily endorse any of the laws
analyzed' in the Report, but we invite attention to them as
examples of approaches States are taking to the difficult
problem of reallocating responsibilities between State and
local government. The progressive initiatives of several
States are evidence.that the great debate has begun, that
efforts are underway in widely separated areas of the country..
to broaden the community making decisions with respect to
certain land use issues. Undoubtedly, matters of purely local
interest -- for example, where to allow a gas station- should
remain under local control. Probably the great majority of
land use decisions made by government are properly local in
effect.

However, as our,society has become more complex
it has become clear that some land use determinations of one
locality often have very important consequences for citizens
in other areas. It is these issues of gr-eater,than local
significance inwhich State and regional involvement seems
appropriate, even necessary, if the broader community affected
by,such--decisions-@is to have some-influence.over them.

We are encouraged by the increasing concern in
the States over these problems. We hope that this report will
contribute to greater interest and familiarity with land use
regulation,- and that readers will.share the urgency we feel
with respect to land use as the most important environmental.
issue remaining substantially unaddressed as a matter of
national policy-,

Rus ell.E. 'Train
C airman

Executive office of the President
Council on,Environmental Quality
Washington, D.C.-:
December 15, 1971
u@se
C a.

CONTENTS

Page

ACKNOWLEDGMENTS vii

INTRODUCTION

HAWAIIAN LAND USE LAW 5

origins of the Land Use Law 5
How the Land Use Law Works 7
Preserving the Pine and the Cane 13
Can Tourism and Conservation be Made
Compatible? 18
Can Hawaii Afford Well-Planned Cities? 22
The Commission's Decisionmaking Proces,s,, 28
Interrelationship of Governmental Agencies 31

VERMONT ENVIRONMENTAL CONTROL LAW 54

History and Circumstances of Adoption 54
The Environmental Board and.Diatrict
Commissions 56
Applications for Permits--The District
Commissions 59
The Three State Plans 71
Other Aspects of the Planning, Process 77
Adequacy of the Law's Coverage 80
Relationship Between Planning and Regulation 81
Enforcement: Selective Examples of Admini-
strative Action 85
Policy Implementation Under the Environmental
Control Law 88

SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT
COMMISSION 108

The Concern over the Filling of the Bay 108
The Powers of the Bay.Commission 109
Current Opera-tions of the Bay Commission ill
The Oakland Fill Flap 113
The Candlestick Properties.Case: A Legal
Victory 114
Ferry Port Plaza: The:Commission Takes-on
San Francisco 115
Balancing Conservation and Development. 119
The Actual Impact of the Commission 121

iv -

Page

TWIN CITIES METROPOLITAN COUNCIL 136

History and Circumstances of Adoption 137
How the Council is Designed to Function-
An Overview 139
The Council and the Commissions 141
Metropolitan Development Guide 146
Review of Local Governmental Unit Plans 148
Recent Developments in the Legislature 150
Future Plans 153

MASSACHUSETTS ZONING APPEALS LAW 164

Origins of the Law 164
Operation of the Law 165
Pending Amendments to the Law 168
The Comprehensive Permit Process 170
operations of the Housing Appeals Committee 172
The Hanover Decision 173
The Newton Cas e 176
Other Cases 178
Effectiveness of the Zoning Appeals Law 179

MAINE SITE LOCATION LAW 187

Threats to the Environment 187
Development Regulated by the Law 188
The Regulatory Agency
Review of Applications for Permits 190
Judicial Review 194
Effectiveness of Administration 195
The Impact on the Environment 196

MASSACHUSETTS WETLANDS PROTECTION PROGRAM 205

Background of Massachusetts Wetlands
Legislation 206
Protection of Coastal Wetlands 207
Delineation of Areas to be Protected 207
Nature of Protective orders 210
Role of Local Authorities 213
Judicial Review and Eminent Domain
Proceedings 215
Protection of Inland Wetlands 216
Inland Protective Orders 221
Investigation and Enforcement Procedures 224
Conclusion 225

Page

WISCONSIN SHORELAND PROTECTION PROGRAM 235

The Water Resources Act of 1966 236
Flood Plain Zoning 238
Departmental Regulations 239
Actions by the Counties 244
State-Local Relations 245
Questions of Jurisdiction 247
Public Awareness 248
Enforcement Thro ugh Legal Action 251
Adequacy of Environmental Protection 252
Areawide Coordination 253
Conclusion 254

NEW ENGLAND RIVER BASINS COMMISSION 262

Early Efforts Toward Coordination 262
Structure of the Commission 263
Responsibilities of the Commission 267
Programs Undertaken 268
Comprehensive New England Water Resources
Plan 269
The Connecticut River Basin Plan 271
Future Plans 275
Special Studies 277
Effectiveness of the Cnmmission 279

SUMMARIES OF OTHER INNOVATIVE LEGISLATION 290

1. Critical Area Legislation 291
a. Tahoe Regional Planning Agency 291
b. Hackensack Meadowlands Develop-
ment Commission 293
C. Adirondack Park Agency 295
d. Delaware Coastal Zone Act 299
2. Land Use Study Commissions 300
a. The Colorado Land Use Act 300
b. Washington Land Planning
Commission 301
C. Alaska Joint State-Federal Natural
.Resources and Land Use Planning
Commission 302
3. Wetland and Shoreland Laws 304
a. Comprehensive Protection Statutes 304
b. Fill and Dredge Statutes 305

Page

KEY ISSUES IN STATE LAND USE REGULATION 314

1. Toward a New Concept of Land 314
2. The Role of the State 318
3. The Role of Local Government 320
4. Regulation and Planning 321
5. Constitutional Limits on Regulation 323
6. Choice of State Agency 325

POSTSCRIPT: FUTURE DIRECTIONS 327

APPENDICES

- vii -

ACKNOWLEDGMENTS

When a report is based on literally hundreds of
interviews it is impossible to single out individuals for
the thanks they deserve. From Maine to Hawaii we were im-
pressed with the willingness with which busy people spent
their valuable time giving us their views about land use
problems.

Our associate Bill Eads was of invaluable assist-
ance in the preparation of the preliminary draft of this
report. Essential assistance was also provided by Bill
Walsh, John Banta, Maxwell Davis, Michael Sawyier and
Michael McCracken. And no one is happier to see its com-
pletion than Janet Janowski and Virginial Bertz who typed
draft after draft with unfailing speed, prcision and good
humor.

The advice and counsel of Boyd Gibbons and Bill
Reilly of the Council on Environmental Quality shaped the
scope and direction of the entire project. To them and
to the members of the Council we owe our special thanks
for their support.

Fred P. Bosselman
David Callies

Ross, Hardies, O'Keefe,
Babcock & Parsons
Chicago, Illinois
November, 1, 1971

INTRODUCTION

This country is in the midst of a revolution in
the way we regulate the use of our land. It is a peaceful
revolution, conducted entirely within the law. It is a
quiet revolution, and its supporters include both conserva-
tives and liberals. It is a disorganized revolution, with
no central cadre of leaders, but it is a revolution none-
theless.

The ancien regime being overthrown is the feudal
system under w!T@ichth_e entire pattern of land development
has been controlled by thousands of individual local govern-
ments, each seeking to maximize its tax base and minimize
its social problems, and caring less what happens to all the
others.

The tools of the revolution are new laws taking
a wide variety of forms but each sharing_@a common theme--
the need to provide some degree of state or regional parti-
cipation in the major decisions that affect the use of our
increasingly limited supply of land. The function of this
report is to discuss and analyze these new laws and to try
to predict and perhaps influence the course of this "quiet
revolution."

Land use controls developed very late in the
history of the United States, primarily after the turn of
the century. As experience in other countries has demon-
strated, there is little to quicken interest in such con-
trols if there is a super-abundance of land. During the
first century of a nation in which a strong belief in the
inviolability of private property rights was coupled with
a largely agrarian economy, there was no impetus to control
the use of land.

Land use controls in the United States have
therefore logically developed against a backdrop of the
emerging importance of the urban area as steadily receding
western frontiers dwindled. As early as 1692, for example,
a law was passed in Massachusetts Bay Colony forbidding
"nuisance" industries from operating in any but certain
districts designated for such uses by town officials, but
even then the law was applied only to Boston, Salem, Charles-
town, and other market towns and cities of the province--the
urban areas of the day.

It was in the cities that it became appa rent that
regulations were needed to prevent one man's use of his land
from depreciating the value of his neighbor's property.
Those who were concerned about these issues called.them-
selves',citV planners, and-they viewed the use of land as an,
urban problem. Rudimentary ordinances,regulating building
height and land-use appeared in Boston and,Los Angeles
around 1909., Then in the next decade many cities passed
local ordinances dividing real estate into districts which
permitted some uses and excluded others. This system of
local "zoning," as it came to be known, provided planners
and legislators with a process containing a wide range of
political options with which. to achieve a consensus of
interests within the local community. After the Supreme
Court gave its blessing in 1926 the issue became, what kind
of restrictions and where?--rather than whether there should
be restrictions at all.

From the beginning the state governments saw land
use control as an urban problem. A Standard ZoningEnabling
Act delegating the responsibility for zoning to the city
governments was prepared by an advisory committee appointed
by the then-Secretary of Commerce, Herbert Hoover, and varia-
tions of it were quickly adopted by.most of the states.
Through the 1940's and 1950's zoning techniques were refined:
The number and kinds of zones increased; greater flexibility
was introduced through open space ratios, floor plan ratios,
and performance standards. Planned unit development--the
uniting of-compatible uses and relaxation of standard re-
strictions '@according to a development..plan--was added to
the arsenal of zoning devides..

- The complexity of the new techniques cannot obscure
the fact that local zoning remains essentially what it was
from.the beginning--simply a process by which the residents
of a local community examine what people propose to do with
their land and decide whether or not they will let them.
The comprehensive planning envisioned by zoning's founders
was never achieved, in part because the growing interrelated-
ness of our increasingly complex society makes it impossible
for individual local governments to plan comprehensively,
and in part because the physical consideration of land use,
with which zoning was in theory designed to deal, frequently
became.submerged in petty local prejudices about who gets
to.live and work where.

The real problem is the structure of zoning it-
self, with its emphasis on very local control of land use

by a dizzying multiplicity of local jurisdictions. While
the Standard Act was a state enabling act, it was nonetheless
an enabling act, directed at delegating land use@control
to the local level, historically at the city level where
the problems which called zoning into being first arose.
It has become increasingly apparent that the local zoning
ordinance, virtually the sole means of land'use control in
the United States for over half a century, has proved woe-
fully inadequate to combat a host of problems of statewide
significance, social problems as well as problems involving
environmental pollution and destruction of vital ecological
systems, which threaten our very existence.

It is this realization that local zoning is in-
adequate to cope with problems that are statewide or re-
gionwide in scope that has fueled the quiet revolution in
land use control. A recognition of-the inadequacies of
local zoning must not, however, cause the values of citizen
participation and local control, which local zoning so
strongly emphasizes, to be submerged completely in some
anonymous state bureaucracy. Although the governmental
entities created by the states to deal with land use prob-
lems are statewide or regional rather than local in orienta-
tion, these innovations have never involved a total usurpa-
tion of local control, and have rarely constituted.an attack
on the integrity of the local zoning process. Even Hawaii's
statewide system of land use controls, sometimes thought to
vest exclusive authority over land use in the state, recog-
nizes the importance of a major role for local governments.

The innovations wrought by the "quiet revolution"
are not, by and large, the results of battles between local
governments and states from which the states eventually
emerge victorious. Rather, the innovations in most cases
have resulted from a growing awareness on the part of both
local communities and statewide interests that states, not-
local governments, are the only existing political entities
capable of devising innovative techniques and governmental
structures to solve problems such as pollution, destruction
of fragile natural resources, the shortage of decent housing,
and many other problems which are now widely recognized as
simply beyond the capacity of local governments acting alone.

For example, Hawaii, Vermont, and Maine have each
adopted a statewide land regulatory system, but the techniques
of land use control employed by each of the three are markedly
different. Other states have not adopted statewide land use
controls, but have provided land use controls for "critical
areas" of each state's environment. Thus Wisconsin protects

shorelands around lakes and along waterways, while massachu-
setts is one of the states that has adopted laws to protect
its wetlands, and California has created a special agency to
deal with the problems of San Francisco Bay.

other innovative legislation focuses on key types
of land development. The New England River Basin Commission,.
like other such commissions, attempts to control the place-
ment of-dams and similar structures that are determinative
of development patterns within river basins. In Minnesota
the Twin Cities Regional Council regulates development by
controlling the location of sewers, airports and a variety
of other key facilities. And Massachusetts has created a
new state agency to ensure that housing can be located in
accordance with statewide needs.

The following nine chapters each consider one of
these recent innovative land regulatory systems in greater
detail, based primarily on a review of thekey statutes,
regulations and decisions and on interviews with the ad-
ministering officials and other groups affected by the
legislation.

These nine land regulatory systems are only a
sampling of the recent legislative activity in this area.
Another chapter discusses in more summary fashion a number
of other recent laws. The final chapter,attempts to synthe-
size some of the key issues that run through all of the at-
tempts to quietly revolutionize our land regulatory systems.

The nature of the innovations in land use regula-
tion varies from state to state, and sometimes from one
institution to another within a state. Some of the devices
employed are old ones in novel juxtaposition. others are
ent.irely, imaginatively new in concept and design. But if
there is a commonalty it is a regional and land resource
orientation that attempts to preserve and protect a vital
resource--land--for the use of the region as a whole.

HAWAIIAN LAND USE LAW

It all began in Hawaii. The quiet revolution in
land use control saw its first-legislative success with the
Hawaiian Legislature's passage of the Land Use Law in 1961. 1/
In the initial years after its passage mainlanders typically
brushed it aside as a strange phenomenon from a strange land.
But now as other states begin reform of their land regula-
tory systems it is increasingly apparent that Hawaii's 10
years of administering a system of statewide controls offers
a valuable source of practical experience.

The Land Use Law gave state agencies a degree of
control over the use of the state's land resources that was
far in excess of that enjoyed by other states. It created a
state Land Use Commission and directed it to divide the entire
state into four districts: conservation, agricultural, rural
and urban. The Land Use Law authorized land in the urban
district to be used for whatever purpose is permitted under
the local zoning regulations. Lands in the agricultural and
rural districts were to be used only in compliance with regu-
lations of the state Land Use Commission, and lands in the
conservation district were to comply with the regulations
of the State Department of Land and Natural Resources.

origins of the Land Use Law,

Hawaii is a small state with a relatively small
amount of land, much of which is mountainous and not suit-
able for cultivation. In addition, Hawaii's climate is
marked by great variations in rainfall from one part of the
state to another. on the island of Oahu, for example, parts
of the northeastern or windward plains receive about 75
inches of rain a year while the mountains a few miles away
receive 300 inches and the plains on the southwestern or
leeward side of the island receive only 20 inches. 2/ This
combination of mountainous terrain and rainfall variability
leaves only a relatively small percentage of Hawaii's land
suitable for agriculture. About 1-1/2 million of the state's
four million acres are used or usable for agricultural pur-
poses but about three-fourths of this agricultural land is
dry land used for grazing, with the result that out of the
four million acres of land in the state less than 400,000
acres are suitable for crops. 3/

The great majority of the best crop land is de-
voted to the growing of pineappleand sugar cane on large

plantations. In 1961 shipments of pineappleand sugar cane
constituted a great preponderance of-Hawaii's exports to the
mainland states and foreign countries, and any threat to the
sugar and pineapple industries in Hawaii was a serious threat
to the state's balance of trade.

The draftsmen of the Land Use Law saw such a threat
in the economic boom that hit Hawaii as the 1960's began.
Congress had just approved statehood for Hawaii and the new
jet airplanes were just beginning to make Hawaii readily
accessible to mainland tourists. Both of these factors
were stimulating a boom economy in the state which in turn
created a concern that these development pressures must be
kept under control. 4/ The City of Honolulu had been grad-
ually expanding into the prime agricultural area of the
central valley of Oahu, and the boom threatened to accelerate
this growth rapidly. @_/ The primary motive of the Law's
sponsors was to preserve this central valley and the other
prime agricultural land and to restrict the City of Honolulu
within narrow urban limits to avoid the Los Angeles-type
urban sprawl that many foresaw. 6/

The owners and operators of the plantations were
influential in persuading the legislature to take strong
measures to preserve the supply of agricultural lands. A
@very large share of the state's agricultural land was con-
centrated in a relatively small number of corporations and
estates, most of which saw governmental regulation as bene-
ficial-to their own interests. Their support, to-gether
with the absence of any large number of small farmers who
might feel threatened by regulation, was very persuasive
in helping achieve passage of the Land Use Law. 7/

To mainlanders accustomed to land use control by
local government the surprising aspect of the Land Use Law
is not the extensive controls it contains but the fact that
public support was found for delegating these controls to
a state Land Use Commission rather than to local governments.
Hawaiians, however, were newly arrived at statehood and had
been accustomed to a strong, centralized territorial govern-
ment during the many years preceding statehood in 1959. 8/

Even prior to territorial status the islands had
been controlled for many years by a centralizeld monarchy
with only limited powers for local governments. 9/ The
Polynesian law that governed the use of land during the
Hawaiian monarchy characterized various lands in the state
as usable for certain types of purposes and decreed that
any contrary use of the land was "kapu," and subject to

severe penalties. Thus Myron Thompson, the first chairman
of the state Land Use Commission, argues that the 1961 Land
Use Law really had its roots far back in the laws of old
Hawaii. 10/

The economic importance of agriculture, the immi-
nence of development pressures and attendant threats of
urban sprawl, and the traditions of strong centralized
government--these all undoubtedly played a part in inducing
the 1961 legislature to adopt the Land Use Law. of course
the inner mysteries of the legislative process ate not easy
to define. Tom Gill, who was majority leader of the House
of Representatives in 1961, suggests that the "greenbelt
law" (as the Land Use Law was popularly called at that
time) may have passed the legislature because some of the
members thought.it had something to do with judo. ll/ In
any event the Law was passed in 1961 and remains in effect
in substantially the same form today. 12/

How the Land Use Law Works

The state Land Use Commission consists of seven
private citizen's plus the Director of the Department of Land
and Natural Resources and the Director of the Department of
Planning and Economic Development. The Commission has.
divided the entire state into the fou-r districts specified
in-the statute: 13/ urban, rural, agricultural and conserva-
tion.

1. Urban districts have been established to
include substantially all areas currently developed
for urban use plus a reserve of land sufficient to
accommodate urban growth for the next 10 years. 14/.

2. Rural districts have been mapped to include
certain areas characterized by low-density residential
development of a semi-rural nature on lots of at least
one-half acre--which is "large lot zoning" by Hawaiian
standards. 15/ No rural districts. have been mapped on
the island @_f Oahu and the classification has been used
sparingly on the other islands. 16/

3. The agricultural districts include both crop
and grazing land plus the sugar mills and other indus-
trial activities typically associated with Hawaiian
agriculture. Mapping of these districts has been ba.sed
on detailed information on the su-itability of all Hawai-
ian land for agriculture provided by the,Land Study

452 -32 9 0 - 72 - 2

- 8 -

Bureau of the University of Hawaii. 17/ In addition,
however, the agricultural districts include lava' flows
and other lands unsuitable for agricultural use but
not thought necessary for conservation purposes. 18/

4. The conservation districts originally estab-
lished by the 1961 Land Use Law had boundaries coter-
minous with the boundaries of the Forest and Water
Reserves Zones, which are state-owned lands on which,
use had been restricted for conservation purposes
under an earlier law. 19/ The Commission was given
powers to modify and expand the boundaries of the
conservation districts and subsequently added a sub-
stantial amount of private land, so that by 1969 at
least a third of the land in the conservation districts
was privately owned, much of it in mountainous areas
of more than 20% slope. @O/ Pursuant to a@1970 statute
the Land Use Commission has added to the conservation
districts a 40-foot strip back from the shoreline around
the entire coast of the Hawaiian Islands. 21/

Initial boundaries of the districts were adopted
by the-,Land Use Commission in 1964. A sample segment of a
Commission land use map is shown on the following page.

The uses to be permitted in the urban districts
are determined by the county zoning regulations, and the
county has no obligation to permit the land to be used for
"urban" type development. The effect, therefore, is that
both state and county approval are required for development
of most urban usest because even though the Land Use Com-
mission may rezone land to an urban classification the
county could still restrict the land to agricultural use.
Substantial amounts of land which developers consider desir-
able for urban development is now located in agricultural
or conservation districts, so their proposals come before
the Land Use commission in the form of petitions for re-
zoning to the urban district. Through the end of 1970 the
Commission had considered approximately 200 requests for
rezoning to urban districts. 22/ The decisions of the Land
Use Commission on these applications constitute one of the
key elements of the state's land regulatory system.

The use of lands in the rural and agricultural
districts is governed by regulations adopted by the Land
Use Commission. 23/ In general these regulations permit
only traditional agricultural uses in the agricultural dis-
tricts-. L4/ In the rural districts low-density residential
uses and quasi-public uses are also permitted. 25/ In addi-

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tion, however, special permits may be issued for other uses
in both agricultural or rural districts upon the approval of
the-county planning commission and the Land Use.Commission. 26/

Applications for boundary changes and special per-
mits keep the Land Use Commission quite busy. The Commis-
sioners meet from two to four times a month at various loca-
tions throughout the state, 27/ a rigorous schedule consider-
ing that the seven citizen m-embers of the Commission receive
no salary, and are assisted by a staff consisting only of an
executive director 28/ and one staff planner. 29/

Requests for amendments to the district boundaries
and for special permits are heard and decided by the Land
Use Commission under a tight time schedule established by
the statute. Each petition is referred to the appropriate
county planning commission for its suggestions and a public
hearing is held by the Commission in the county in which the
land is located. 30/ Six members of the Commission must
vote to approve any change in the land use district b,ound-
aries. 2-1/

In addition to acting on individual applications,
the Land Use Commission is by statute directed to undertake
a comprehensive review of district boundaries every five
years. The first such review was conducted in 1969 and re-
sulted in reclassification of a substantial amount of land. 32/

In the conservation districts the use of land is
subject to the sole regulation of the Department of Land
and Natural Resources. 33/ Currently, the Department's
procedure for regulating such uses is contained in its
Regulation No. 4. 14/ The regulation divides the conserva-
tion area into two general subzones, an R-W Restricted
Watershed zone and a GU General Use zone", plus three spe-
cial subzones designed to permit spec-i@ically a college,.a
cemetery and a nursing home. 35/ As permitted uses in the
GU subzone the regulation incfu-des "cabins, residences',
recreational type trailers and accessory buildings of a
noncommercial nature," 36/ and also resorts, hotels, restau-
rants, country clubs, golf courses, marinas and governmental
uses. 37/

The Board of Land and Natural Resources, which is
the governing body of the Department, passes on all applica-
tions for permits in the conservation zone. The Board's
decision to permit a new use of land in the conservation
districts may have a major impact on land use patterns. Its
decision to permit a major new airport on the Kona coast of

Hawaii, for example, has had a substantial effect on the
overall development patterns of that area. 38/ (Note that
this decision also illustrates another way in which the
Hawaiian system differs from traditional local zoning; pub-
lic agencies, which are exempt from most local zoning laws,
must obtain permits under the Land Use Law.)

The general relationship of these state agencies
is shown in the following diagram:

HAWAIIAN STATE AGENCIES INVOLVED IN LAND USE CONTROL

IGovernor]

FDepartm nd
FLand Use Comm"'ission Department of Planning ent of La Board of
_E@i s
I& Economic Development I& Natural Resource Land &
Sets district bound- I Natural"
aries. Passes on Provides staff for Provides staff for Resources
special permits in Land Use Commission. Board of Land and
rural and agricul- Director serves as Natural Resources. Passes on
tural districts. member of Commission. Chairman serves as permits
member of that for use
Board and also as of land
member of Land Use in con-
Commission. servation
districts.

This dry procedural material is necessary for an
understanding for the basic operations of the Hawaiian Land
Use Law, but the reader should not be deceived into a belief
that the administration of the Law is a mechanical process.
Members of the Land Use Commission are called upon to make
major policy decisions affecting the future of the entire
state--decisions that are controversial and have great eco-
nomic, social and environmental impact.

At the present time the Commission must make these
decisions without many guidelines beyond those general prin-
ciples set forth in the Law itself. While Hawaii adopted a
state plan in 1960 shortly after statehood the rapid popu-
lation growth and economic changes that have taken place
since that time have made the 1960 state plan obsolete. A
general plan revision program was completed and published
in 1967, but in it the planners specifically abstained from
setting land use policies:

- 12 -

The state Land Use Plan may be iden-
tified at any moment with the district
boundaries established under provisions
of the Land Use Law. These boundaries
and the rationale behind their formulation
set forth the State's policies and guide-
lines for future land use. within these
policies and guidelines, more specific
land uses and detailed standards are
designated by County Planning Commissions
in accordance with local land use plans
or other local government considerations.
Changes in the State Land Use Plan, in
effect, are made upon legal approval of
boundary changes upon petition of property
owners or through the periodic reviews
mandated by law. Consideration of pro-
posed changes may be based on evaluation
of key physical and institutional factors
influencing development and on such data
or interpretations as may be forthcoming
from the land use model and other quanti-
tative techniques. 39/

The state planners have made it clear that land
use planning is the province of the state Land Use Commission
and that changes in district boundaries by the Land Use Com-
mission amount to changes in the land use plan. The Land Use
Commission has been directed to plan, says Honolulu Planning
Director Robert Way, but has been given no planning capabili-
ties. 40/ The important question then becomes: what poli-
cies does the Land Use Commission use as a basis for its
decisions? Most Hawaiians would probably say "the wrong
policies," but they probably would disagree violently over
what the "right" policies would be.

Many of Hawaii's residents--apparently a majority--
seem to favor more limitations on new urban development, ili/
and view with suspicion the actions of the. Commission because
they feel that the Commissioners are appointed from, as con-
servationist Robert Wenkam puts it, the "growth is good
group." 12/ Builders and major landowners, on the other
hand, tend to view the Commission and particularly its staff
as arbitrary followers of obsolete restrictive policies that
are hampering the state's economic growth.

Finding reality amid such diametrically opposed
points of view is no easy task. Viewing 10 years of opera-
tion of the Land Use Law, however, it would appear that three
basic policies are guiding its administrators:

(1) Prime agricultural land should be preserved
for agricultural use.

(2) Tourist-attracting development should,be en-
couraged without disturbing.the attractions@
of the natural landscape.

(3) Compact and efficient urban areas should be
provided where people can live at.reason-
able cost..

Given the inherent conflicts among and within these policies,
it is no wonder that decisions under the Land Use Law have
aroused controversy among those who think some of the poli-
cies get too little or too much weight. Before seeing how
the Land Use Commission and Department of Land@and Natural
Resources have tried to resolve these conflicts it is worth-
while to analyze each of these policies in somewhat more
detail.

Preserving the Pine and the Cane

Historically the economy of Hawaii has revolved
around pineapple (locally called "pine'.') and sugar cane. 43/
The Land Use Law was originally passed in order to preserve
as much agricultural land as possible because agriculture
was so essential to the economy. The preservation of agri-
cultural land remains a key issue,,but as agriculture de-
clines in importance and is replaced by tourism as the state's
major source of income, the need for preserving agricultural
land becomes less certain. The issuebeing raised more and
more often is "do we still need to preserve agricultural
land?"

An appreciation of the many views on this issue
requires an understanding of the pattern of land ownership
in Hawaii. Large land holdings are still the rule in
Hawaii. 44/ Among themselves, major landowners control
nearly h@i_lf the land in Hawaii, and nearly 90% of the pri-
vately-held land. Chief among the landholders in terms of
acreage is the Bishop Estalte, a,Trust for educational pur-
poses which owns land formerly held by the Bishop family,
profits from which go@to the.-statewide Kamahameha Schools.
Bishop Estate owns 370,000 acres, or 9% of all the land in
the state, and 16% of Oahu alone. It does.not develop land
itself, but leases to developers and plantation corpora-,
tions.'45/

- 14

The Estate of James Campbell, on the other hand,
develops some of its open land and engaged in some busi-
ness activities thereon. An example of such development is
Ewa New Town and Campbell Industrial Park, west of Honolulu
on Oahu. 46/ Campbell Estate owns approximately 41,000 acres,
or 1% of Ehe land in Hawaii, and 13% of Oahu.

Another 2% of the@land in Hawaii is owned by
Alexander & Baldwin, a conglomerate corporation with divi-
sions engaged in mining, agriculture, and development. Of
the approximately 96,000 acres owned by Alexander & Baldwin,
76,000 are on Maui, primarily in sugar cane, but also in-
cluding Kahului New Town, a company town for A & B employees
developed in the 1950's. 47/

Another 2%, or 75,000 acres, is owned by AMFAC,
another conglomerate. Seventy-five per cent of its holdings
are on Kauai, with most of the remainder on Maui. AMFAC
works some of its land and leases out the rest. 48/

Another conglomerate, Castle & Cooke, holds about
4% of the land in Hawaii. Their oceanic Properties Division
develops a good portion of the land. one such development
is Mililani New Town on central Oahu, being built on 3,500
acres for approximately 60,000 people. 49/ Other major land-
holders include the Brewer Estate, the Cooke Estate, the
Dillingham Corporation, and C. Brewer & Co. Ltd. 50/

The growing of both pineapple and sugar require
large tracts of land. The crops are trucked from various
parts of the plantation to a central location for processing.
Particularly in the case of sugar the heavy capital invest-
ment in the mill and the cost of transporting the cane to the
mill make it essential that the mill be centrally located in
a very sizable tract of cane land. This means that sugar
production on scattered sites is not economic. 51/ While
some smaller landowners do raise pineapple they too are
dependent on sales to a central processing facility of one
of the large companies. @2/

The fact that the sugar and pineapple plantations
are controlled by a few large,operators and landowners
makes the views and intentions of these companies and es-
tates a key factor,in assessing the future of agriculture.
When a sugar or pineapple plantation closes down it closes
down all at once, not gradually, and takes an enormous
acreage of land out of production. So a few dozen decisions
by major landowners hold the key to the future of agriculture
in Hawaii.

Each of.the large landowners looks enviously at
the tempting profits made by those who are able to sell or
lease their land for hotels or condominiums. They look with.
apprehension, on the other hand, at the tendency to treat
prime agricultural land as sacred, and their pessimistic
prognostications about the future of agriculture are some-
times discounted by conservationists as self-serving state-
ments.

Despite these suspicions it is commonly believed 53/
that Hawaiian pineapple will not remain competitive with
pineapple from other sources for many,more years. 54/ In-
creasing imports of,foreign pineapple to the United States
mainland have coincided with the decline in Hawaiian pine-
apple production. Imports of foreign pineapple, which had
been running about two million cases annually during the
1950's, more than doubled during the 1960's as heavy invest-
ments were made in pineapple plantations.in Taiwan, Malaya
and other African and oceanic countries. @5/ Dr. Harold .
Baker, who has headed the University of Hawaii's Land Study
Bureau since,its inception, points out that the reduction
in acreage of Hawaiian land devoted to pineapple.follows a
similar pattern;,after remaining stable during the 1950's
the amount of land devoted to pineapple dropped sharply in
the 1960's as production decreased by over a million cases
despite some increase in productivity per acre. @@6/.

The nature of pineapple production apparently
makes it difficult, if not impossible, to mechanize. @7/ At
least three major pineapple plantations have ceased operations
in the past 10 years. 58/ Alexander & Baldwin is.in the pro-
cess of selling out alf-its pineapple land, according to
Richard Cox, a vice president in charge of their properties
group. @9/ Maui Land & Pineapple Co. plans an increase in
acreage devoted to pineapple, but it,is also shifting 350
acres of its existing pineapple lands into urban develop-
ment. 60/ The major landowners generally agree that pine-
apple production is-unlikely to continue much beyond 1980. 61/

The future.of sugar looks more optimistic. The
sugar industry has taken over some of the land abandoned
by the pineapple companies and now devotes more acreage to
cane than at any other time in the state's history. @2/ At
the same time, however, less profitable sugar land is being
abandoned or converted.to urban use. Two plantations are
being abandoned in 1971 and another in 1973, and the re-
sulting loss of 23,367 acres will reduce:the state's total
amount of cane land by almost 10%. 63/

16 -

The Campbell Estate's Chairman Allan S. Davis
suggests that both sugar and pineapple are past their
peak, citing pull-out of both Castle & Cooke and Libby
McNeil from Oahu as examples. If the necessary irrigation
and roadway systems had not been installed early in Hawaii's
history when costs were low,,prohibitive costs today would
make any kind of agricultural development in Hawaii im-
possible. 64/ Warren Haight, President of Castle & Cooke's
Oceanic Properties Division, agrees that both pineapple and
sugar are on their way out: Hitis just a matter of time." 65/

0'n the other hand, Richard Cox says Alexander &
Baldwin is'still making "good money" from sugar. L6J Lawrence
Clapp of Ahuimanu Investment Company sees considerable exag-
geration in the prediction that agriculture, including sugar,
will be almost dead in.Hawaii in the next 10 years. 67/ only
a complete reversal of the federal sugar quota policy, which
now protects Hawaii against cheap imports, would be likely
to make production of sugar in Hawaii uneconomic. @8/

But what of new products, such as macadami.a nuts
and papaya? Despite frequent attempts to promote other
types of agriculture in Hawaii the promise is not great for
substantial conversion of land to other agricultural uses. 69/
has been substantial success with crops of seed corn
and macadamia nuts but these are unlikely to use substantial
volumes of land. 70/ Attempts have been made for years to
promote diversified agriculture such as truck farming but
it has been difficult to get much enthusiasm on the part of
the potential farmers for this type of farming. 21/ The
military on Hawaii buys substantial quantities of produce
but, according to Harold Baker,- it has preferred to deal
with the large co-ops and producers in California who can
give firm contracts for larger quantities, and the small
farmers in Hawaii have not become sufficiently organized
to deal in the volumes the military needs. 2_2/

Wade-McVay of Campbell Estate figures that 1,000 AR,
acres of agricultural land is all the state needs to support
itself, while the rest must be used eventually in another
fashion. 73/ Within the government sector there is consider-
able disagreement with so pessimistic a forecast. Sunao
Kido, Director of the Department of Land and Natural Re-
sources, strongly believes that Hawaii's economy must be
rooted in agriculture. Pineapple and other "endangered"
crops can, according to Kido, be converted to truck crops
like corn. 24/ The Director of the Department of Planning
and Economic Development, Shelley Mark, is not quite so
optimistic, but he also believes it is much too early to

give up hope on an agricultural economy that continues to
prosper. 75/

In general, the place of agriculture as a sub-
stantial factor in the Hawaiian economy appears secure for
the next 10 to 15 years at least. However, its character-
istics--what is grown, where, and in what quantities--will
almost surely change. The net result will probably be an
eventual lessening of need for the amount of land in agri-
cultural zones for agricultural pur poses. The major issue
thus becomes what to do with this surplus" agricultural
land.

Regardless of these changes, a large segment of
the public views the preservation of prime agricultural land
as a policy of major importance, 26/ which forced state offi-
cials to measure its performance in terms of the number of
acres preserved.

"The records show that from the time the
Land Use Commission drew up its first
district boundaries in 1964 up to the
latter part of 1970, it rec6ived requests
for more than 100,000 acres to be re-
classified into urban district, where
economic valuations are obviously the
highest. of that 100,000 acres,-only
30,000 acres were given urban classifi-
cation;by the Commission. of the 30,000
acres reclassified into urban district,
only 3,500 acres were considered prime
agricultural lands. And even these prime
lands included two pockets in the midst
of an already heavily urbanized area,
while the remainder of the reclassified
agricultural lands were devoted to im-
mediate housing needs. There is also
evidence that as a result of the state's
strong land use law, its plantation
management has been given incentive and
assurance to plan for long-term stabil.ity
and growth in agriculture operations." 27/

It will take a far more severe depression in the agricultural
economy than currently exists before the public isconvinced
that the attempt to preserve agricultural land'shou'ld be
abandoned. Whether its economic bases are sound or not,
the conservationists suppor_@ the preservation of agricultural
land as a means of-keeping open space, and planners see it

18 -

as an excuse for controlling urban growth. So even if the
basic purposes of preserving agricultural land become un7
sound from an economic standpoint the myth would probably
be kept,alive in order to provide green space and to pre-
serve a more compact form for the urban areas. 78/

Can Tourism and conservation be Made Compatible?

When the Land Use,Law was passed the tourism-indus-
try was substantially confined to a few hotels in Honolulu.
There were scarcely any resort areas on any of the neighbor
islands or on Oahu outside Waikiki. 79/ Since that time the
tourist industry in Honolulu has grown rapidly. The number
of hotel rooms in Honolulu has.increased from 8,720 in 1961
to 21,217 in 1970. The Waikiki@area has been transformed
into a dense concentration of hotels and tourist entertain-
ment facilities resembling Miami Beach or Las Vegas--to the
disgust of the natives but the apparent delight of the
tourists. 80/

In addition, the neighbor islands' tourist industry
has developed from almost nothing to a very substantial busi-
ness of its own; hotel rooms,on the neighbor islands have
increased from 1,473 in 1961 to 9,106 in 1970 and construc-
tion continues. 81/

Support for increased tourism comes both from
business interests and labor leaders. Labor in both the
agricultural plantations and hotels is organized by the
International Longshoremens' and Warehousemens''Union which
dominates the labor movement in Hawaii and exerts strong
influence in the state's politics. (one Union official
occupies a spot on the Land Use Commission and another is
on the Board of Land and Natural Resources.) Employment in
the sugar and pineapple industries has dropped quite sub-
stantially in the past 10 years, reflecting reductions in
pineapple acreage--three plantations have gone out of busi-
ness in this period--and increased mechanization of the
sugar plantations..82/ Further declines in agricultural
employment are.expe@@_te:d. 83/

Employment in hotels and other services, on the
other hand, has increased substantially (as have wage levels
,in those industries). 84/ Hotel-related jobs are taking up
the slack from loss of agricultural jobs. While the Union
lost 3,000 members in agriculture in the past five years,
total membership has increased from 21,000 to 24,000 during
the same period. 85/

Eddie Tangen, Vice Chairman of the Land Use Com-
mission and a Vice President of the Longshoremens' Union,
sees construction and development jobs themselves as too
short-run to be of much value to the Union. As,he points
out, development must end sometime if agricul-ture is to
remalin a viable,part of the Hawaiian economy, and When it
does, construction jobs will vanish with it. The Union
thus favors increased tourism as Ia source of jobs. 86/

-The large' corporations that'co'ntrol the agric'ul-
ture plantations also have a'large stake in tourism. Each
one has its own proposed or existing tourist destination
area.such as AMFAC's Kaanapali complex on Maui and C. Brewer's
development of the area around 'Punaluu on the Big Island.
other developers have also invested large sums in tourism--
the'Makaha complex of financier Chinn Ho being a prime example.

Thus both capital and 'labor agree that more tourist,
destination facilities are desirable In opposition to this
powerful coalition, however, is Hawaii's strong conservation
movemen t.-Hawaiians have a long history of concern over
conservation.,. Hawaii's forests were heavily stripped in
the 19th century, and this cr eated severe drought condi-
tions tha'6 made the agricultural in,terests in Hawaii very
conscious of the need to protect large areas of forest
reserves and otherwise reduce water run-off. 87/ The
Outdoor Circle-, a women's conservation and beautification
group in'Honolult, succeeded some years ago in persuading'
the state to outlaw billboards and has lobbied with:govern-
mental-agencies on a number.of environmental issues..*-,88/

The'general goals of conservation receive strong
't from-the public. A recent public opi i
suppor nion survey
showed 93% support for the proposition that preservation of
scenic and natural resources should receive strong emphasis
in landUse planning. 89/

More recently the emphasis has changed. Environ-
mental groups have -tended to focus on the basic issue-of
population growth.: The same public opinion poll -showed 69%
of the-r6spondents taking the view that urban.develbpment .
should be limited at least to some degree. The newer environ-
mental@or@ahizations go even fatther, taking the po.sition
that immigration ta the state should be,stopped.@, Mike
Cleveland, a-young lawyer who is one of the leadbrs;of the
organiza tion Life of the Land, believes thestate should
adopt.maxim'um population laws. He believes the Land Use
Law is "beautiful," but feels that 'the CommissIon 'is@ too
de-velbpme.n't-oriented and should -say flatly that it is'not,
going to rezone any more land for urban uses. 90/

Many of the more established conservationists
consider these positions as "extreme" and harmful to the
cause of conservation. Tom Gill, who has long been-active
in the conservation movement, says that he finds most
Hawaiians think that organizations such as Life of the Land
consist of new arrivals who want to be the last ones in. 91/
Robert Wenkam, a world-famous nature photographer who heads
the Friends of the Earth in Hawaii, sympathizes with the
views of Life of the Land but resents their refusal to give
credit to the very substantial accomplishments that have
been achieved through the Land Use Law. 92/

The cause of the conservationists received a
further setback in 1971 when an "associate of Ralph Nader"
issued a very critical but highly inaccurate brochure on
the extent of pollution in Hawaii. The obvious mistakes in
the brochure and the unfamiliarity with local affairs demon-
strated by its authors strengthened the view of most Hawai-
ians that the environmentalist groups were dominated by
"outsiders." 93/ In the long run, however, both young and
old conservationists agree that momentary setbacks such as
this will not deter the continuing growth of the conserva-
tion movement in Hawaii. State Planning Director Shelley
Mark agrees that conservation organizations are becoming
an increasingly strong voice. in the state's affairs. 94/

the new focus on growth limitations, it ap-
pears increasingly likely that the position of the conserva-
tionists will be opposed to additional development of
tourist-oriented facilities@, thus bringing them into con-
flict with the' capital-labor. coalition that seeks increasing
tourism. The Land Use Commission bears the brunt of some of
this conflict, but some of it is also borne by the Depart-
ment of Land and Natural Resources, which is the subject of
frequent criticism by the conservationists. 'Some of the
criticism is procedural. The regulations of the Department
of Land and Natural Resources'are frequently criticized
because they permit the granting of certain,types of land
uses in conservation zones without any public'hearingsl@
which creates-some-resentment. 25/ But the iLand Board has
attempted to -schedule a hearing in 'the county in which an
application is filed-if it is controversial. 96/, The very
small planning staff of the Department finds it impossible
to make a field inspection of areas in which permits are
sought or to enforce the conditions attached to the permits
that are granted, 2_7/ and all inspection-and enforcement
functions are carried on'by the Division of Forestry. 98/
In fact,@ the staff feels that it. lacks the manpower . even
to do a proper job of processing the initial,applications. 99/

21 -

A much more common complaint about the conserva-
tion districts is a substantive one. The regulations of
the Department of Land and Natural Resources are often
criticized for appearing to invite tourist-oriented develop-
ment proposals in the conservation zones. 100/ The regula-
tions of the Department of Land and Natural Resources are
so generous in the uses they permit in conservation zones
that many people feel they destroy the concept of conserva-
tion. 101/ It seems generally agreed that the regulations
give the Department too much discretion to permit "urban"
uses in the conservation zones, but there is disagreement
about whether this discretion has been abused. The list of
alleged abuses seems to be limited to a few examples: Para-
dise Park, a development consisting of pathways, bridges,
and buildings containing.restaurants and souvenir shops, is
1-ocated.in.a conservation zone and also in a watershed dis-
trict set up to preserve fresh water resources for Honolulu. 102/
Sea Life Park, a popular tourist attraction on windward Oahu
is located in a conservation zone.. 103/ The Wailaikea nursing
home is also located in a conservation zone on Oahu. 104/
The new airport and a resort in the Kona area of the Big
Island are also located-in conservation areas. 102-5/

This criticism is contested by Sunao Kido, Director
of the Department of Land and Natural Resources,'who main-
tains that such developments as Paradise Park and Sea Life
Park were both within the.spirit and letter of the conserva-
tion district regulations as conceived and as they.existed
when decisions to permit their construction were made a
short time ago. However, he concedes that, in*restrospect,.
these developments might be somewhat intensive for a con-
servation distric.t,.and the Land Board has.now selected
consultants to "tighten up" its regulations. L1O6/

Some developers, on the,other.hand, criticize
the conservation district classificationas "nothing more
than a holding zone." L07/ Richard,Lyman, Jr., Chairman
of the Board of Bishop Estate and former statesenator,
cites Waipea Valley as an example. According to Lyman, the
valley.contained a population of 1,000 together with a num-,
ber of.agricultural and business enterprises prior.to desig-
nation. as.. a. @conservation area. Now the.valley is empty,.
and planted with plum treeS77which were never,native to the
area inthe first place. Li8_14.

.,..Most.observers:seem to agree with Honolulu Advertiser
environmental,correspondent Harold Hostett:6r that.while some,
uses permitted in the conservation districts may not be
strictly conservation-oriented in the environmental-preserva-

- 22

tion sense, there are few examples of "blatant misuse." 109/
Indeed, although many decisions of earlier Boards have been
criticized, most critics generally concede that the present
Board has only occasionally given its regulations too broad
an interpretation. 110/ In fact, the'Land Board was re-
ceiving only about 20 applications per year:for land use
permits in the conservation@districts until 1970, though
with enlarged coastline Jurisdi6tion this number is in-
creasing.@lll/

Can Hawaii Afford Well-Planned Cities?

Any discussion 6f'cit-ies in Hawaii must begin
with the recognition that Honolulu is the only city of
substantial size in the state. The combined city and county
of Honolulu, which occupies the entire island of Oahu,'had
a population in 1970 of about 629,000 which accounts for
approximately 82% of the state's population.

As the map on the'next page shows, the great
majority of Honolulu's population'lives in an urbanized
area bounded on the North and East by the Koolau Mountains
and on the South and West by the sea. The natural avenue
of expansion for the urban area wouldbe out to-the north-
west into the central valley of the island but this valley
contains some-of the best pineapple and sugar growing land
in-the state and has been placed in an agricultural district
by the Land Use Commission.

Partly'as a consequence of the unavailability of,
the central valley for urban'development such development
has spread across the Koolau Mountains to'windwatd Oahu
which has been the scene of substantial growth in recent
years, but-even windward Oahu is now constructed by the
agricultural lands to the North and the mountainous con-
servation districts.

Most major land use decisions on Oahu,'where 92%
of the construction in Hawaii took place in 1969, L12/ in-
volve the issue of whether-urban development should be con-
fined within a gradual enlargement of its existing boundaries
or should be allowed to expand throughout the island.,' Narrow
urban limits and higher densities ate generally favored by
urban planners on the ground that they promote more efficient
.,@use of'public. facilities, reduce the'reliance*on the auto-
mobile,,and-.'create a more exciting urban"environment.-113/

0 0

110

Map of Honolulu County
showing generalized
boundaries of urbanized
Honolulu

Adapted from Eckbo, Dean, Austin & Williams, State of Hawaii Land Use Districts and Regulations
Review, plate 13 (1969)

The policy of the Commission has been, and con-
tinues to be, to favor rezoning of land adjoining existing
urban districts while opposing developments far from exist-
ing,urban..centers. 114/ Moreover, in each major application
for the rezoning of agricultural land for urban use the
Land Use Commission, staff hasItaken the position that the
developer should demonstrate why it is not possible to use
existing land in the 'urban district,-*115/ it cites studies
indicating that there are about 20,000 acres of urban-
zoned land available. 116/

Developers, on-the other hand, argue that thez
amount of developable open land'has been grossly over-
stated. 117/ Colonel Van Allen of the Bishop Estate places-.
the land theoretically available for,development at less
than 9,000 acres.,'118/ Ea_rl Stoner of AMFAC Communities
and George,Yim, General Counsel for Castle & Cooke's Oceanic

452 329 0 - 72 - 3

- 24

Properties Division, would put the actual figure far lower--
at 3,000 acres--when land unusable because of steep slopes
and other site conditions and military land not available
for development, is excluded. 119/ Moreover, Sunao Kido,
Director of the Department of Land and Natural Resources
and a member of the Commission, freely admits that usable
vacant urban land may be vastly overstated because some
is in public park use and some is in military zones. 120/

The Commission has granted more rezoning of agri-
cultural land than the staff had recommended, but these
rezonings have been far less than the developers would like.
More importantly, they have been concentrated on the.fringes
of the existing urban area, thus reducing toa minimum the
"Scatterization" that is typical of other rapidly growing.
areas, but also giving the owners of the land immediately
adjoining the existing urban area a monopoly that has led
to extremely high land prices. overall, the effect of the
narrow urban limits policy has been to minimize the.conver-
sion of agricultural land to urban use 1@1/ and to keep the
urban development circumscribed.at high densities. 122/

The primary exceptions to,the policy of narrow
urban limits appear to be the development of new towns--.,,
planned, self-contained communities dev6loped.to house a
substantial population. The,principal new town that has
been built is,Mililani,.located 16.miles northwest.of
central Honolulu in the,pentral valley. 123/ The site
consists of nearly 3,500,acres, designed for, 60,000 people.
The first.phase of Mililani is nearing completion, with
some people now livin in rowhouses ("patiohouses"
.9
and ','townhouses"Y and single-family residences ranging in
price from $25,000 to $37,500. Theaverage lot is 70000
square-feet and sells f 'or $15,500. Some are as small'as
5,000 square feet, others as large as 10,700 square feet. 124/
These prices. are considerably higher than the $15,0.00 price
tag which oceanic. Properties represented to the Commis.sion
it would put.in its average dwelling, and ocean 'ic has come
in for considerable criticism bec-aUse i't'was partly'on the
basis of this representatlon that'the Com'mi.ssion granted
the rezoning from agricultural to urban. L25/

New towns have now.be6n proposed by both the
Campbell and Bishop.Estates. Campbell's proposed Ewa New
Town would be located west of Pearl Harbor and east of
Campbell Industrial' Park, both job centers.,126/, Planned
for 15.,0'00 families over 25y6ars,.the newtown is presently
located in an agricultural zone.. An. integral p ar tof, .@its
plan is"a site for.a second Uni.versity.'of'Hawaii campus. L?7/

- 25

Campbell Estate claims it intends to proceed with its new
town plans regardless of the eventual location of the new
campus, 128/ but it is no secret that Campbell and Bishop
Estates are both pushing for that location to be on their
respective lands. The new town proposed by the Bishop Es-
tate is to be located to the north of Pearl Harbor, and it
is also presently zoned in the agricultural classification. 129/

These new town proposals have generated substan-
tial opposition from conservationists who fear they portend
a general-breakdown of the Commission's policy of permitting
only-gradual expansion of the City. @30/ The Department of
Planning and Economic Development in 1970 commissioned a
study,*of the state's open space needs, and at the request of
Governor Burns both new town proposals are being held in
abeyance p6ndihg@the completion of that study, which is ex-
pected late in 1971. 131/

Opponents of the narrow urban limits policy argue
that it has seriously increased the cost of housing. While
housing has never been cheap in Hawaii its price has been
increasing very rapidly in the last few years, 132/.in part
reflecting the fact that Hawaii's spiraling land costs are
disproportionately high. 133/ In 1970 the median value of.'.
owner-occupied housing tabulated by the census was $35,100,
more than.double the national average of $17,000,,, and the.
state contains-less than 20,000 dwelling units valued und@er'
$25,000,and,about,66,000 valued at more than that figure.
About'34,000 rental units lease for less than $100.00a
month out of 107,000 total rental units. 134/ Federal.
housing subsidy programs are used in Hawaii within the limits
of the available 'funds 13*5/ but the complete absence of mo-
bile homes removes one . of the major sources of housing-for
people in the lower income categories. 136/

,The Ve ry serious housingshortage has create(!
hardships that some feel outweighs the gains achieved by'
the Law. Some' deVe.opers argue that -the narrow urban limits
policy 'has promoted outrageous land' speculation. because. it
has so sharply decreiased- the supply of land available for
developmen.t. 137/ The study of Eckbof De .an,' Austin &
Williams concluded that- th.p.Land Use Law has not helped the
housing'shortage and may have aggravated it.. 138/ Earl
Stoner of AMFAC 'Communities 'is quick to"pbint out that,
whatever the Act's origknal 'inteint,. 'Its language'. makes clear
that the'Act was-intended to prese 1. rve a balance between the
four district'classifitqtIonsi urban, Irural, agricultural
and conservatio.n... 1-39/ 'Allan Davis, Chairman of the Board
of Campbell Estate,'probably represents the general opinion

of most large landowners that, given a housing shortage and
a de-emphasis on agriculture, the Land Use Commission is
keeping too much-land in agricultural zones. If it,is not
going to be developed and cannot be cropped, says Davis, .
"What else can you use it for?" 140/ The general response
from state officials seems by and large to be, not for
development--at least, not now. 141/

This concern over spiraling housing costs has
caused some people to question whether the Land Use Law
has, as Honolulu's Assistant Planning Director Ray Yamashita
puts it, sufficiently focused on the problems of people as
opposed to the more abstract issues of land planning. 142/
However, not everyone agrees that the short supply of de-
velopable land is the major factor that increases the cost
of housing. It is often conceded by,developers and land-
owners that the current shortage of housing would produce,
speculation in land even without the Land Use Law. 143/
Some even dispute the contention that the Commission's poli-
cies have contributed at all to the high-cost of land:and
housing,,.either on Oahu orthe neighbor islands.,144/,

Among the other factors contributing to high
housing costs, the chief one appearsto be the amount of
improvements required on a lot. According to Allan Davis,,.
county ordinances which require sidewalks, gutters, under-
ground wiring and the like add substantially to the cost of
erecting a home on a 6,000-square-foot lot which might
originally cost--in fee simple or 75-year lease--around
$5,000-$6,000. 145/ He estimates that required improvement
costs usually run around $1.75 per square foot, making it
impossible to construct single-family residences for much
under $30,000 146/--well above what the average laborer.
can afford. 14f/

A recent study found that the cost of improving
a lot runs from 40% to 65% of the market price of the site. 148/
Developer Lawrence Clapp puts the cost of an average resi-
dential lot on Oahu (7,200 square.feet) at about $25,000,
fully half of which is due to these required "improvements." 1491/
The result is.$10,000-$25,000 homes being constructed upon
$20,000-$30,000 lots, almost a perfect inversion of the, gen-
erally accepted ratio of house value to lot value prevailing
on the mainland. L150/

Throughout the statethe cost of land acquisition
and improvement amounts to about 47% of the sales price of
a new 'home. Complaints of high costs of required improve-
ments,are heard on the neighbor islands as wellas on Oahu.

John Hyer, Vice President of the Maui Land and Pineapple
Company, points to them as the single most important factor
in increasing housing costs, but he also notes that the
shortage of heavy equipment and experienced construction
labor may be more responsible for the high costs than any
arbitrary requirements of county officials. 151/

Robert Way, Honolulu Planning Director, vigorously
disputes the argument-that county requirements are excessive.
The county planners are currently preparing a model to study
housing costs, and he suggests that preliminary results indi-
cate that the element of housing cost that seems most out of
line is the excessive profits of the builders. 152/

It can be argued, on the other hand, that the
narrow urban limits policy has contributed substantially
to the high cost of land development and the high margin of
builder profit. By protecting the flat agricultural land
it has forced builders into the hills where development
'costs are necessarily higher. And by creating a shortage
of land it has reduced the supply of housing to the point
v;here builders, workers, suppliers and all other segments
of the housing industry can increase their prices and still
find a ready market. one developer, who prefers to remain
anonymous, declares that there will never be $30,000-single-
family residences constructed on Oahu for the simple reason
that demand is so strong for more expensive units for which
there is a greater profit to the developer. 1.@3
@ This de-
veloper does not attribute the scarcity of inexpensive hous-
ing to the Commission, which has never refused his requests
for urban rezoning. (Most of his land, it should be noted,
has been adjacent to existing urban zones.) But developers
with land less favorably located are unlikely 'to agree.
only an extensive study by land economists could resolve
these fundamental questions about the effect of the urban
limits policy.

Some planners argue that the narrow urban limits
policy can be preserved without increasing housing costs
if more of the pressures for development are transferred to
the neighbor islands--the islands other than Oahu. They
argue that increased development on the neighbor islands
is necessary both to help the neighbor islands,realize
their economic potential and also to preserve some of the
environmental assets of Honolulu's setting. 154/ The de-
sire to transfer some of the development pressures from
Oahu to the neighbor islands now appears more realistic in
view of the decentralization of the tourist industry, 155/
but the great majority of new development continues to be
attracted to Oahu. L@6/

- 28

on the neighbor islands, there is no immediate
danger of overcrowding because population densities are
very low. Many neighbor islanders feel as does Maui County
Mayor, Elmer Cravalho, that the housing shortage on Oahu
is being "conveniently used" to justify the emasculation
of the Land Use Law. 157/ Neighbor islanders constitute a
majority of the Land Use Commission, and may reflect the
opinion commonly heard on the neighbor islands that de-
velopment should be channeled out of Oahu and into the
other islands.

The neighbor islands have their own urban sprawl
problem, however, in the form of subdivisions containing
lots of one-half acre or larger. Development at these low
densities is widely abhorred by planners as inconsistent
with Hawaii's land scarcity. 158/ In the past many obsolete
subdivisions were created for sale to gullible out-of-
staters. 159/ The Land Use Commission has reduced this
practice but has not stopped it completely. 160/ Philip
Yoshimura, Deputy Planning Director for Hawaii County,
complains that the County has no way of stopping so-called
agricultural subdivisions approved by the Commission for
sale to speculators in three to 20-acre parcels. 161/

Some of the land sales operations on the neighbor
islands have drawn severe criticism. A very large Boise
Cascade subdivision of dry, flat rangeland on the Kona
coast of Hawaii has been called a fraud on the public even
by other developers. Much of the new resort-oriented
development on the neighbor islands follows a standard
pattern of hotel, golf course and subdivision, 162/ and
the developers say they need the cash flow generated by land
sales in order to make their resort property profitable. 163/
The County of Kauai, however, recently disapproved a large-
lot subdivision by Princeville Ranch interests, and conserva-
tionists hope this marks a renewed trend of opposition to
these land sales operations. 164/

The conflict between the contrary chants of "no
urban sprawl" and "lower housing costs" will undoubtedly
remain the most tempestuous issue the Commission must face
in the coming years. Decisions either way are guaranteed
to create enemies.

The Commission's Decision Making Process

Given.the changes in conditions that have taken
place since the adoption of the Land Use Law, and the lack

of clearly defined state policies to replace those policies
of the early 1960's that now seem outdated, it is of course
not surprising that the actions of the Land Use Commission
have been the subject of some criticism. Conservationists
think the Commission has allowed too much development, and
developers think it has not allowed enough. Complaints
based on such basic differences of policy can hardly be
avoided.

Less excusable, however, are the universal com-
plaints of the excessive time it takes to process a rezoning
through the Commission. 165/ Earl Stoner of AMFAC Communi-
ties estimates that it often takes from 4-1/2 to 7-1/2 months
to obtain such land use changes. 166/ This is on top of
another nine months to a year that may be required to ob-
tain all the necessary county approvals. 167/ Allan Davis,
described one project for which the necessary county and
Commission approvals took a full 2-1/2 years. 168/

But considering the meager funds and ambiguous
policy guidance given the Commission, perhaps the most
surprising result is that its decisions have not been crit-
icized more than they have. The Commission operates on an
inexcusably tight budget with a very small staff that has
no time for long-range planning. 169/ Strict time limita-
tions require it to hold hearings in each of the,four counties
at relatively frequent intervals in order to meet the schedule
prescribed by the statute. 170/ Although the Commission has
been criticized for failing to follow with sufficient preci-
sion the prescribed administrative procedures, 171/ it has
resisted any increase in the formality of its proceedings 172/
because, as developers point out, it already may take up to
a year to obtain both local and state approval of a project,
_W and delay of this magnitude cannot help but increase the cost
of housing. 173/

one of the innovations of the Commission which has
occasioned considerable comment is its so-called "incremental
approach" to granting rezoning approvals. 174/ A petitioner
for a land use classification change must produce a general
plan for the entire project he proposes to construct upon
the land,for approval in concept. However, only a small
portion of that land is reclassified so that development can
proceed--the "first increment." Moreover, it is on this first
increment that sewage treatment plants, main water lines and
other improvements must be constructed for the whole develop-
ment. The intent is to force the developer to invest so
heavily in that first increment that he must complete his
project in its original concept or lose a substantial amount
of money. 175/

- 30

The results of this incremental approach are
clearly evident from the experience of the oceanic Prop-
erties Division of Castle & Cooke in developing Mililani
New Town. of its total planned development of 3,500 acres,
the initial increment of land use change granted by the
Commission was a scant 300. In that first increment oceanic
was required to construct a sewage treatment plant with a
capacity of 1,000,000 gallons at a cost of $4 million. 176/

Some county officials also complain about the
incremental approach, alleging that it represents too much
concentration on details by the Commission. They suggest
that the Commission should concern itself only with the broad
categories of development and leave the rest to the counties. 177/
The Commission staff argues, however, that they get blamed if
the development does not turn out as planned so they need the
additional control that incremental zoning provides. 178/
Shelley Mark suggests that the counties are not doing an ade-
quate job of insuring good site planning by the developers
and that it is important for the Land Use Commission to re-
view developers' plans in detail. 179/

A five-year review of the district boundaries was
undertaken in 1,969 as required by the statute. 180/ The
draftsmen had hoped that the provision in the Law for a
five-year review would cut down on the number of boundary
changes in the interim, but it does not appear to have done
so. 181/ It was also hoped that the five-year review would
allow a comprehensive look at the entire state which could
be used as a policy basis for reclassifications. This com-
prehensive view was provided by the consultants, Eckbo,
Dean,, Austin & Williams, but critics suggest that the Com-
mission based its redistricting less on this.comprehensive
study than on "consensus" planning. L82/

The five-year review also created a host of new
procedural problems, some of which spawned litigation chal-
lenging the validity of reclassifications made as part of
the five-year review. 183/ The actions of,the Commission
in reclassifying large tracts of land without, itis alleged,
adequate,notice to the public has been subjected to substan-
tial criticism, L134/ and the Commission has reopened a number
of these cases for further consideration. 185/

It is generally agreed that with its small staff
the Land Use Commission is incapable of enforcing the Land
Use Law, and they make no attempt to follow up on permits
to see that conditions and restrictions are obeyed, or to

check on development undertaken without a permit. The
statute directs the counties to enforce the Law but it is
difficult to discern whether the counties are actually
doing so. 186/

Conflict of interest charges that were levied
against the Commission in the 1970 election campaign cer-
tainly did little to inspire confidence that the decisions
of the Commission were being based on sound planning poli-
cies. Some suggest that the existing laws regarding con-
flict of interest need to be clarified, 187/ but others
believe that conflict of interest has only been a problem
in a few isolated situations, 188/ and that the publicity
generated in 1970 will insure that the Commissioners are
increasingly careful about any possible conflicts in the
future. 189/ Clearly'the Land Use Commission itself lacks
the staff or time to engage in its own planning and policy
formulation. L191-0/

Aaron Levine, President of the Oahu Development
.Conference, suggests that the state constitution, by re-
quiring a three year residence requirement for government
jobs, has made it difficult to hire mainland planners and
has had an adverse impact on the overall quality of the
planning in the state. 191/ The first state general plan,
prepared in 1961, proved to have very little influence on
land use decisions. 192/ The state's Department of Planning
and Economic Development is attempting to map out a strategic
policy approach to planning 193/ and work has begun on a
planning-programming-budgeting system. 194/ At the present
time, however, many people are not convinced that the state
planning program is having the desired results. 195/

The Department of Land and Natural Resources is
also frequently criticized for its failure to prepare an
overall plan for the forest reserves. 196/ An op!@n space
study currently being undertaken by the Overview Corporation
may form the basis for such a plan and should at least pro-
vide badly needed guidelines for decisions in this important
area.

Interrelationship of Governmental Agencies

Given the number of agencies involved in Hawaii's
land regulatory system certain conflicts are inevitable.
The Land Use Commission and the Department of Taxation fre-
quently.appear to be working at cross-purposes, 197/ and
it is widely agreed that the tax policies of the'state need

better coordination with other land use policies. 198/
Hawaii has two tax laws which were designed to influence
'land use policies. The "Pittsburgh plan," under which.land
is taxed at a higher rate than buildings, was intended to
encourage the improvement of urban land. This is consistent
with the narrow urban limits policy of the Land Use Commission,
though some argue that these policies have contributed to
undue congestion in Waikiki and other densely developed parts
of Honolulu. 199/

The tax laws also contain dedication provisions 200/
which allow a landowner to obtain lower assessments by "dedi-
cating" his property to agricultural use. 201/ The only
land likely to be dedicated is land which is in proximity to
existing urban areas. 202/ Dedication of such land may limit
the Land Use Commission's ability to implement its policy
of orderly urban expansion. 203/ Unless land is dedicated
the statutory direction 204/-that the assessors give con-
sideration to the land use classifications set by the Land
Use Commission has apparently had little effect. 205/ In
addition, the tax laws have been criticized for permitting
the dedication of land for agricultural purposes in districts
zoned urban by the Land Use Commission, thus defeating the
purpose of the Land Use Law. 206/

There seems to be little direct conflict between
the Land Use Commission and the Department of Land and
Natural Resources but many county officials, such as Kauai
County Planning Director Brian Nish'imoto, see no reason why
the land use functions of the two,agencies should not be
combined. This would enable county officials to deal with
a single state agency rather than with two agencies having
different policies. 207/

.Some of the criticism of the interrelationship of
the various state agencies has focused on the position and
makeup of the Land Use C.ommission. Conservationists suggest
that the Commission could reach more intelligent decisions
if it were staffed with more conservationists and members
of the land use professions. 208/ They feel that most of
the Commissioners have strong pro-development sympathies
and that only public pressure keeps the Commission in check. 209/

On the other hand Wade McVay of Campbell Estate
would abolish the Commission. He contends that the counties
are sufficiently sophisticated to handle their own land use
planning now, and that the counties should initiate changes
in land use classifications., This would eliminate a tier of
planning approval and put the pro cess in the hands of the

- 33 -

governmental unit most familiarwith local problems. 210/
George Akahane, Chairman of the Honolulu County Council Com-
mittee on Planning and Zoning, would not abolish the Com-
mission but would require that changes in land use districts
be initiated by the county. 211/ Public opinion polls, how-
ever, show that this view does not have broad support at this
time. 212/

Others argue that the Commission should be replaced
by a line agency in the state government. 213/ Still others
defend the independent position of the Commission as pro-
viding a needed measure of citizen participation. 214/ Roy
Takeyama, now Secretary of the Board of Regents of the Uni-
versity of Hawaii and a former attorney for the Land Use
Commission, points out that no lineagency would be able
to exercise the control over other state agencies that the
Commission now exercises. He suggests that the Land Use Law
has made state agencies such as the Highway Department think
about the impact their actions will have on land use policy
for the first time. 215/ Shelley Mark agrees that the
existence of'the Land Use Law has increased the degree of
coordination among these state agencies because they now
work through the Land Use Commission rather than each dealing
independently with the counties. 216/

The relationship between the counties and the
state agencies is less than perfect. The counties.have sub-
stantially improved their planning programs within the 10 '
years the Land Use Law has been in effect, and some county
officials'feel that the Law now needs substantial revision.
They argue that although the Land Use Law may have had the
beneficial effect of slowing development while the counties
caught up on their planning, 217/ the counties' planning is
now more sophisticated than the,state's and the counties'
views should*now be given greater weight. 218/ Honolulu
Planning Director Robert Way argues that the counties' deci-
sions must be based on sound planning because the Hawaii
Supreme Court has impos ed uniquely restrictive standards on
rezonings by the counties, requiring that each rezoning be
based on a comprehensive planning decision. 219/

County officials also point out that the Land Use
Commission has no contact with the county public works de-
partments and therefore has little knowledge of whether the
county can easily provide services to areas newly classified
as urban. 220/ on the other hand,. some county officials
will concea-ethat they often rely on the Land Use Commission
to withstand local political pressures that are hard for the
county to resist. 221/ And the extent to which the county's

- 34 -

planning has been translated into a process for adequate
review of proposals has been questioned by some state offi-
cials who believe it important that the Land Use Commission
continue to review the proposals of developers in detail., 222/

For the most part the county planners and the Land
use Commission co-exist amicably, and to the extent that
there is friction between some of the counties and the Land
Use Commission it may reflect,only the type of personality
conflict that might occasionally be expected. 223/ Conflicts
between the counties and the Department of Land and Natural
Resources, however, appear quite basic. 224/ Although the
county can usually prevent urban development on lands re-
zoned to an urban district by the Land Use Commission, it
has no such power on conservation lands under the jurisdic-
tion of the Department of Land and Natural Resources. County
officials generally share Maui County Planning Director
Howard Nakamura's opinion that the broad powers of the De-
partment of Land and Natural Resources to permit a wide
range of urban uses in the- conservation z(3ne should be re-
stricted, though they would also concede that the cases in
which the powers have been a.bused have not been common. 225/

Although the Land Use Law generates its share of
interagency bickering almost no one would advocate giving
up the basic system,. Hawaiians are proud of their Land Use
Law and while many seek to improve its operation no one. is
publicly promoting any basic change in the Law's underlying
concepts. If there is any common agreement about needed
change it would be with Hawaii County-Corporation Counsel
Wendell Kimura's view that the Commission needs better-
articulated planning standards and fewer ad hoc decisions. 226/

,FOOTNOTES

Haw. Rev. Stats. Chapter 205.

2/ Sherwin Carlquist, HAWAII: A NATURAL HISTORY 76 (1970).
See David T. E. Lum, Samuel G. Camp, III and Karl Ger-
tel, HAWAIIS EXPERIENCE IN ZONING (Hawaii Agricultural
Experiment Station, College of Tropical Agriculture,
University of Hawaii, Research Report 172, June, 1969)
at p. 4.

3/ Arthur Y. Ching And Tamotsu Sahara, LAND USE AND
PRODUCTIVITY RATING, STATE OF HAWAII, 1968 (Land Study
Bureau, University of Hawaii, Circular No. 15, July,
1969) at p. 18.

4/ Interview with Aaron Levine, President, Oahu Develop-
ment Conference, April 6, 1971.

5/ Harland Bartholomew & Associates, LAND USE DISTRICTS
FOR THE STATE OF HAWAII, Recommendations for Implementa-
tion of the State Land Use Law Act 187 SLH 1961, p. 8
(1963).

6/ See, generally, Frederick K. Nunns, "Hawaii Pioneers
With a New Zoning Law," JOURNAL OF SOIL AND WATER
CONSERVATION Vol. 17, No. 3, May-June, 1962, at pp.
104-106; Frank Skirvanek, "The Impact of Hawaii's
Landscape Laws," LANDSCAPE ARCHITECTURE, July, 1965,
at pp. 264-66; David T. E. Lum, Samuel G. Camp, III
and Karl Gertel, HAWAII'S EXPERIENCE IN ZONING (Hawaii
Agriculture, University of Hawaii, Research Report
172, June, 1969); Myron B. Thompson, "Hawaii's State
Land Use Law," STATE GOVERNMENT, Spring, 1966, at pp-
97-100. other laws passed about the same time were de-
signed to prevent the withdrawal of land from-forest
reserves and to relieve the tax pressures that were
pushing agricultural and forest lands into development.

John J. Hulten, "Land Reform in Hawaii," 42 LAND
ECONOMICS 235 (1966).

Dr. Shelley M. Mark and Richard Poirier, STATE AND
LOCAL LAND USE PLANNING: SOME LESSONS FROM HAWAII'S
LAND USE LAW (January, 1971), at P. 10.

9/ Interview with Wendell Kimura, Corporation Counsel,
County of Hawaii, April 19, 1971.

10/ Myron B. Thompson, "Hawaii's State Land Use Law,"
STATE GOVERNMENT, Spring, 1966, at pp. 97-100.

ll/ Interview with Tom Gill, former House Majority Leader,
April 5, 1971.

12/ Further history of the land use law can be found in
the references cited at -note @ 6, ,@upra.

13/ Haw. Rev. Stats. �205-2. For a detailed explanation
of the mapping process see Hawaii State Planning Office
and Harland Bartholomew & Associates, FACTS PERTAINING
TO THE PROTECTION & ZONING OF RURAL, AGRICULTURAL, &
URBAN LANDS WITHIN ALL COUNTIES (March, 1961); Eckbo,
Deanj Austin & Williams, STATE OF HAWAII LAND USE
DISTRICTS AND REGULATIONS REVIEW (August 15, 1969).

14/ David T. E. Lum, Samuel G. Camp, III and Karl Gertel,
HAWAII"S EXPERIENCE IN ZONING (Hawaii Agricultural
Experiment Station, College of Tropical Agriculture,
University of Hawaii, Research Report 172, June, 1969)
at p. 94. The statute requires that the'urban district
include "a sufficient reserve area for foreseeable
urban growth." Haw. Rev. Stats. �205-2.

15/ "Rural districts shall include activities or uses as
characterized by low density residential lots of not
more than one dwelling house per one-half acre in -
areas where 'city-like' concentration of people, struc-
tures, streets, and urban level of services are abs.ent,
and where small farms are intermixed with the low density
residential lots." Haw. Rev. Stats. �205-2.

16/ David T. E. Lum, Samuel G. -Camp, III and Karl Gertel,
HAWAII'S EXPERIENCE IN ZONING (Hawaii Agricultural
Experiment Station, College of Tropical Agriculture,
University of Hawaii, Research Report 172, June, 1969)
at p. 27.

17/ See Arthur Y. Ching and Tamatsu Sahara, LAND USE AND
PRODUCTIVITY RATING, STATE OF HAWAIIP 1968 (Land Study
Bureau, University of Hawaii, Circular No. 15, July,
1969).

18/ "These districts may include areas which are not used
for, or which are not suited to, agricultural and in-
sular activities by reason by topography, soils, and
other related characteristics." Haw. Rev. Stats.
�205-2. For a discussion of the problems created by

- 37

such lands see Eckbo, Dean, Austin & Williams, STATE
OF HAWAII LAND USE DISTRICTS AND REGULATIONS REVIEW
(August 15, 1969) at p. 86.

19/ Haw. Rev. Stats. �205-2, see Haw. Rev. Stats. �193-41.

20/ Eckbo, Dean, Austin & Williams, STATE OF HAWAII LAND
USE DISTRICTS AND REGULATIONS REVIEW (August 15, 1969)
at p. 84.

21/, 1970 Session Laws of Hawaii, Act 136. See State of
Hawaii, Land Use Commission,, STATE LAND USE DISTRICT
REGULATIONS, effective August 4, 1969 and as amended
Ai. January 26, 1971, �2.361. The Act defines Itshoreline"
as th,e upper reaches of the wash of waves other than
storm and tidal waves. Act 136, �2. See.also State
of Hawaii, Department of Planning and Economic De-
yelopment, HAWAII AND THE SEA (1969) at pp. 55-66;

22/ Samuel B. K. Chang, Bina M. Chun, THE iLAND USE LAW
REVISITED: LAND USES OTHER THAN URBAN (Legislative,
Reference Bureau, December,.1970) at pp. 28-32.

23/ Haw. Rev. Stats. �205-5.

24/ State of Hawaii, Land Use Commission, STATE LAND.USE
DISTRICT REGULATIONS, effective August 4, 1969 and as
amendedianuary 26, 1971, �2.14.'

25/ Id., at �2.16.

26/ Haw. Rev. Stats. �205-6 as amended by 1970 Hawaii
Session Laws, Act 136.
JV @L7/ Th eschedule of the Land Use Commission for the Spring
of 1971 showed the following hearings:

Friday, April 16--Hilo, 7:00 P.M.
Saturday, April 17--Kona, 1:00 P.M.
Friday, May 7--Windward Oahu, 7:00 P.M.
Saturday, May 8--Waianae, Oahu, all day
Friday, May 21-7Maui, 1:00 P.M.
Friday, June 4--Kauai, 1:00 P.M.
Saturday, June 5--Ewa, Oahu, 1:00 P.M.

2g/ Mr. Tatsuo Fujimoto replaced Ramon Duran as Executive
Director on April 1, 1971.

38 -

19/ Another plaInning position is authorized but currently
vacant.@

30/ See State of Hawaii, Land Use Commission, RULES OF
PRACTICE AND PROCEDURE, effective August 4, 1969 and
as amended January 26, 1971, ��1.17--l.21.

31/ Haw. Rev. Stats. �205-4.

32/ See, generally, Eckbo, Dean, Austin & Williams, STATE
OF HAWAII LAND USE DISTRICTS AND REGULATIONS REVIEW
(August 15, 1969) at p. 84.

33/ Haw. Rev. Stats. ��205-5, 183-41.

34/ REGULATION NO. 4, a regulation of the Department of
Land and Natural Resources, State of Hawaii, providing
for land use regulations within conservation districts
pursuant to Section 19-70, Revised Laws of Hawaii 1955,
as amended, providing for zones, subzones, permitted
uses, appeals, enforcement and penalty (undated)
(hereinafter cited as Regulation 4). A study looking
toward revision of these regulations is currently
underway. Interview with Edward Williams, planning
consultant, September 1, 1971.

25/ Regulation 4, �2; see the discussion of these,special
subzones at Eckbo, Dean, Austin & Williams, STATE OF
.HAWAII LAND USE DISTRICTS AND REGULATIONS REVIEW
(August 15, 1969) at p. 88.

26/ The department interprets the term "non-commercial"
to exclude any residential development built for sale
or lease to others." Interview with Gordon Soh,
Planning Coordinator, Department of Land and Natural
Resources, April 8, 1971.

37/ Regulation 4, �2B.

.@@8/ Interview with Philip I. Yoshimura, Deputy Director
of Planning, County of Hawaii, April 19, 1971.

39/-. Department of Planning and.Economic Development,
GENERAL PLAN REVISION PROGRAM, Part 1, at p. 40
(1967).

40/ Interview with Robert Way, Planning Director, City -
and County of Honolulu, March 30, 1971.

39 -

41/ Eckbo, Dean, Austin & Williams, STATE OF HAWAII LAND
USE DISTRICTS AND REGULATIONS REVIEW (August 15, 1969)
at p. 189.

12/ Intervi ew with Robert Wenkam, July 14, 1971.

43/ "Opportunities for Hawaiian Agriculture," Agricultural
Development Plan for the State of Hawaii, 1970, cf.
especially pp. 47 and 52.

44/ Bank of Hawaii, CONSTRUCTION IN HAWAII 28 (1970).

45/ Interview with Colonel William G. Van Allen, Officer
and Director, Bishop Estate, June 8, 1971.

46/ Interview with Allan S. Davis, Chairman of the Board
of Trustees, The Estate of James Campbell, June 8,
1971.

L7J Interview with Richard H.. Cox, Vice President in
charge of Properties Group, Alexander & Baldwin, Inc.,
June 10, 1971.

48/ Interview with Earl Stoner, President, AMFAC Communi-
ties, June 10, 1971.

49/ Oceanic Properties, Inc. (a division of Ca stle &
Cooke), Honolulu.

50/ 1970 Annual Report, C. Brewer & Company, Ltd., and
the Dillingham Corp.; interview with Wade McVay, Chief
Executive, Campbell Estate, June 8, 1971.

Lij interview with Harold Baker, Director, Land Study
Bureau, April 6, 1971.

52/ Interview with Colin Cameron, President, Maui Land
and Pineapple Company, July 9, 1971.

.@3/ Pineapple industry costs are kept secret for.competi-
tive reasons. Interview with Harold Baker, April 6,
1971.

54/ Production of Hawaiian pineapple dropped from 30.1
million cases in 1959*to 28.8 million cases in 1970.
Bank of Hawaii, HAWAII 1971, Annual Economic Review
(August, 1971) at p.. 45. See also Thomas K. Hitch,
Si-Si Chu, and Betty Hirozawa, CURRENT AND ANTICIPATED
DEVELOPMENTS AFFECTING POPULATION, ECONOMIC ACTIVITY

452-329 0 - 72 - 4

- 40 -

AND LAND USE ON KAUAI, MAUI AND HAWAII 1965, 1970 and
1975 (Legislative Reference Bureau, 1959) at p. 556.

55/ Department of Planning and Economic Development,
OPPORTUNITIES FOR HAWAIIAN AGRICULTURE 48 (1970).

56/ Interview with Harold Baker, April 6, 1971.

57/ Interview with Richard H. Cox, June 10, 1971.

58/ Interview with Eddie Tangen, Vice President, Inter-
national Longshoremen's and Warehousemen's Union,
and member of Land Use Commission, June 7, 1971.

59/ Interview with Richard H. Cox, June 10, 1971.

60/ Interview with Colin Cameron, July 9, 1971.

61/ Interview with Richard H. Cox, June 10, 1971; inter-
view with W. Lawrence Clapp, President, Ahuimanu
Investment Company, June 9, 1971; interview with
Eddie Tangen, June 7, 1971; Bishop Estate, Honolulu;
The Estate of James Campbell, Honolulu; interview with
Warren G. Haight, President, Oceanic Propert'ies, Inc.
(a division of Castle & Cooke), June 9, 1971; interview
with Earl Stoner, June 10, 1971; Lanai and Molokae
are almost wholly given over to pineapple production,
and,may outlast the major islands by several years
however.
62/ Interview with Harold Baker, April 6, 1971.

63/ Bank of Hawaii, HAWAII 1971, Annual Economic Review
(August, 1971) at p. 16.

64/ Interview with Allan S. Davis, June 8, 1971.

65/ Interview with Warren G. Haight, June 9, 1971.

66/ Interview with Richard H. Cox, June 10, 1971.

67/ Interview with W. Lawrence Clapp,,June 9,.1971.

68/ Bishop Estate, Honolulu.

69/ In 1970 sugar and pineapple accounted for $149,300,000
of,a total.value of all crops in the state of $170,200,000.
Bank of Hawaii, HAWAII 1971, Annual Economic Review
(August, 1971) at p. 44.

41 -

LO/ Interview with Harold Baker, April 6, 1971.

71/ Interview with Dr. Shelley M. Mark, Director, Depart-
ment of Planning and Economic Development, April 6,
1971. Sales of vegetables and fruits have increased
gradually from about $6 million in 1960 to $9-1/2
million in 1969.

72/ Interview with Harold Baker, April 6, 1971.

23/ Interview with Wade McVay, June 8, 1971.

14/ Interview with Sunao Kido, Director, Department of
Land and Natural Resources, and member of the Land
Use Commission, June 9, 1971.

75/ Interview with Dr. Shelley M. Mark, April 6, 1971.

26/ Eckbo, Dean, Austin & Williams, STATE OF HAWAII LAND
USE DISTRICTS AND REGULATIONS REVIEW (August 15, 1969)
at p. 189.

77/ Dr. Shelley M. Mark and Richard Poirier, STATE AND
LOCAL LAND USE PLANNING: SOME LESSONS FROM HAWAII'S
.LAND USE LAW (January, 1971) at p. 7.

78/ Interview with Dr. Shelley M. Mark, April 6, 1971;
interview with Howard Altman, Project Administrator
for Eckbo, Dean, Austin & Williams, five-year boundary
review study, April 7, 1971.

79/ Thomas K. Hitch, Si-Si Chu, and Betty Hirozawa,
CURRENT AND ANTICIPATED DEVELOPMENT AFFECTING POPULA-
TION, ECONOMIC ACTIVITY AND LAND USE ON KAUAI, MAUI.
AND HAWAII 1965, 1970 and 1975 (Legislative Reference
Bureau, 1959) at p. 131.

80/ Interview with Richard Lowe, planning consultant,
April 4, 1971.

81/ Bank of Hawaii, HAWAII 1971, Annual Economic Review
(August, 1971) at p. 42. See Bank of Hawaii, CON-
STRUCTION IN HAWAII 34 (1970).

82/ Interview with Eddie Tangen, June 7, 1971.

.@13/ State of Hawaii, Department of Planning and Economic
Development, THE ECONOMIC OUTLOOK FOR THE STATE OF
HAWAII (Economic Research Report No. 71-1, January 28,
1971).

84/ Hotel employment increased from 6,310 in 1965 to
13,320 in 1970. Bank of Hawaii, HAWAII 1971, Annual
Economic Review (August, 1971) at p. 44.

85/ Interview with Eddie.Tangen, June 7, 1971.

86/ Tangen is quick to voice the concern of his workers
over the absence of reasonable housing. According to
Tangen, while the "average guy" may earn around $12,500
a year, it is not sufficient to finance a $31,000 home,
and it is hard to find houses selling for less. How-
ever, one developer, who prefers to remain anonymous,
suggests that it is the workers themselves who con-
tribute to the high cost of their housing. He regu-
larly provides beer for his workers every Friday after-
noon plus a luau at the conclusion of each project.
Recently, beer has been demanded other days.of the week
as well. If he did not acquiesce, he declared he
would soon have no workers.

B7/ Robert Wenkam, KAUAI AND THE PARK COUNTRY OF HAWAII
84-87 (1967).

88/ Interview with Cynthia Marnie, Legislative Representa-
tive, The Outdoor Circle, July 13, 1971.

89/ See the results of the questionnaire reported at
Eckbo, Dean, Austin &@Williams, STATE OF HAWAII LAND
.USE DISTRICTS AND REGULATIONS REVIEW (August 15, 1969)
at p. 189.

90/ Interview with Mike Cleveland, officer, Life of the
Land, July 9, 1971.

91/ Immigration of Caucasians has been heavy in recent
years. Bank of Hawaii, HAWAII 1970, Annual-Economic
Review (August, 1970) at p. 22.

92/ Interview with Robert Wenkam, July 14, 1971.

93/ Interview with Tom Gill, April 5, 1971. For an
analysis and reprint of the "McAteer brochure" that
aroused local politicians with its attacks on the
state's environmental policies see Honolulu Sunday
Star-Bulletin & Advertiser, April 18, 1971, p. B-2.

94/ Interview with Dr. Shelley M. Mark, April 6, 1971.

25/ Interview with Tony Hodges, Life of the Land, July 12,
1971; interview with Robert Wenkam, July 14, 1971.
See, Eckbo, Dean, Austin & Williams, STATE OF HAWAII
LAND USE DISTRICTS AND REGULATIONS REVIEW (August 15,
1969) at p. 88.

96/ Interview with Gordon Soh, April 8, 1971.

97/ Id.

98/ State of Hawaii, Department of Land and Natural Re-
sources, 1969-1970 REPORT TO THE GOVERNOR (January,
1971) at p. 12.

99/ Interview with Gordon Soh, April 8, 1971. There has
also been some criticism by conservationists that the
Department is put in a conflicting position because
it is the lessor of many of the lands on which it
must decide applications for permits, and there will
be increased lease revenue in many cases if the permit
is granted.

100/ Interview with Dick Mayer, Geography Instructor, Maui
Community College, July 10, 1971; interview with Mike
Cleveland, July 9, 1971; interview with Robert Wenkam,
July 14, 1971.

101/ Samuel B. K. Chang, Bina M. Chun, THE LAND USE LAW
REVISITED: LAND USES OTHER THAN URBAN (Legislative
Reference Bureau, December, 1970) at p. 24; interview
with Tom Gill, April 5, 1971; interview with Brian
Nishimoto, Director of Planning, County of Kauai,
April 16, 1971; interview with Wendell Kimura, April
19, 1971; interview with Mike Cleveland, July 9, 1971;
interview with Cynthia Marnie, July 13, 1971; inter-
view with Dick Mayer, July 10, 1971.

102/ Interview with Wade McVay, June 8, 1971; interview
with Colonel William G. Van Allen, June 8, 1971;
interview with W. Lawrence Clapp, June 9, 1971.

123/ Interview with Mike Cleveland, July 9, 1971.

104/ Interview with Colonel William G'. Van Allen, June 8,
1971.

105/ Interview with Wendell Kimura, April 19, 1971.

106/ Interview with Sunao Kido, June 9, 1971; interview
with Edward Williams, September 1, 1971.

44 -

107/ Interview with colonel William G. Van Allen, June 8,
1971.

108/ Interview with Richard Lyman, Jr., Chairman of the
Board, Bishop Estate, Tune 8, 1971.

109/ Interview with Eddie Tangen, June 7, 1971; interview
with Harold Hostetter, environmental reporter, Hono-
lulu Advertiser, July 13, 1971; interview with Richard
H. Cox, June 10, 1971; interview with Robert Wenkam,
July 14, 1971.

110/ Interview with Howard Altman, April 7, 1971.

lll/ Interview with Gordon Soh, April 8, 1971. Recently
there has been severe criticism with the construction
of the Kona airport in the conservation district.
Interview with Philip I. Yoshimura, April 19, 1971.

112/ Bank of Hawaii, CONSTRUCTION IN HAWAII 2 (1970).

113/ See Eckbo, Dean, Austin & Williams, STATE OF HAWAII
LAND USE DISTRICTS AND REGULATIONS REVIEW .(August 15,
1969) at pp. 97-8.

114/ Interview with Sunao Kido, June 9, 1971. Samuel B. K.
Chang, Bina M. Chun, THE LAND USE LAW REVISITED: LAND
USES OTHER THAN URBAN (Legislative Reference Bureau,
December, 1970) at p. 29.

115/ Interview with Ramon Duran, former Executive Director,
Land Use Commission, April 8, 1971; see, e.g., State
of Hawaii Land Use Commission, Staff Report on Docket
No. A70-268 (Estate of James Campbell), February 26,
1971. Interview with Harold Baker, April 6, 1971.

116/ Interview with Roy Takeyama, Secretary, Board of Re-
gents, University of Hawaii, April 6, 1971; interview
with Howard Altman, April 7, 1971. See, generally,
Arthur Y. Ching, USE STATUS OF URBAN-ZONED LAND ON
OAHU, University of Hawaii Land Study Bureau, Special
Study Series, Report No. 9, February, 1970. It has
also been suggested that this emphasis on "need" is
of doubtful constitutionality. Ira Michael Heyman,
"Planning Legislation: 196311 30 AIP JOURNAL 247, 250
(November, 1964).

117/ Interview with Fred K. Kwock, Manager, Residential
Development, Dillingham Land Corporation (a subsidiary
of Dillingham Corporation), June 7, 1971.

- 45

118/ Interview with Colonel William G. Van Allen, June 8,
1971.

119/ Interview with George Yim, General Counsel, oceanic
Properties, Inc. (a division of Castle & Cooke),
June 9, 1971; interview with Earl Stoner, June 10,
1971.

120/ -Another current land use issue in Hawaii is the extent
to which some of the very extensive military land
might be available for other uses. (Interview with
Larry Nakatsuka, Legislative Assistant to Senator
Fong, April 1, 1971.) The current emphasis at the
federal level to release unneeded military land for
other purposes has stimulated discussion on this
issue. On the other hand, in recent years the federal
government has also acquired substantial amounts of
new land for space and military research and'testing.
(Robert Wenkam, KAUAI AND THE PARK COUNTRY OF HAWAII,
115-22 (1967).

121/ The Estate of James Campbell; AMFAC Communities. See
Samuel B. K. Chang, Bina M. Chun, THE LAND USE LAW
REVISITED: LAND USES OTHER THAN URBAN (Legislative
Reference Bureau, December, 1970) at p. 39.

122/ Eckbo, Dean, Austin & Williams, STATE OF HAWAII LAND
USE DISTRICTS AND REGULATIONS REVIEW (August 15, 1969)
at p. 8. Factors other than the land use law have also
probably influenced the shape of the urban area. The
sugar plantations which occupy the fringes of Honolulu
cannot operate except with very substantial acreage
and are, therefore, in a poor position to sell lots
in small increments. This lack of.small holdings on
the fringe has undoubtedly contributed to the slow
rate of urban expansion. Richard U. Ratcliff, STATE
ECONOMIC GOALS,AND FEDERAL LAND HOLDINGS IN HAWAII
(May, 1962) at pp. 70, 78..

123/ "Mililani Town," brochure published by oceanic Prop-
erties Division of Castle & Cooke, Honolulu.

124/ Id.

125/ Interviews with George Yim and Wendell Brooks, Jr.,
Vice President and General Manager, of Oceanic Prop-
erties, Inc. (a division of castle & Cooke), June 9,
19,71; interview with Roy Takeyama, April 6, 1971.

126/ "New Town for Ewa," brochure published by The Estate
of James Campbell.

127/ Id.; interviews with Allan S. Davis and Wade McVay,
June 8, 1971.

128/ Interview with Colonel William G. Van Allen, June 8,
1971; interview with Eddie Tangen, June 7, 1971.

129/ Interview with Eddie Tangen, June 7, 1971.

130/ Interview with Robert Way, March 30, 1971.

131/ Honolulu Advertiser, August 5, 1971, p. 7.

132/ Bank of Hawaii, CONSTRUCTION IN HAWAII (1970) at p. 5.
In 1970 the median value of a house in Hawaii was
$35,100 compared to $25,500 in the@ next highest state.
See Bureau of the Census, 1970 CENSUS OF HOUSING, AD-
VANCE REPORT: GENERAL HOUSING CHARACTERISTICS (Febru-
ary, 1971).

133/ Richard U. Ratcliff, STATE ECONOMIC GOALS AND FEDERAL
LAND HOLDINGS IN HAWAII (May, 1962) at p. 80.

134/ U.S. Bureau of the Census, General Housing Character-
istics, February, 1971.

135/ Bank of Hawaii, CONSTRUCTION IN HAWAII 40 (1970).
Interview with Larry Nakatsuka, April 1, 1971.

136/ Interview with Kekoa Kaapu, Urban Renewal Coordinator,
City of Honolulu, July 15, 1971. See Honolulu Ad-
vertiser, August 8, 1971, p. 23.-

137/ Oceanic Properties, Inc. (a division of Castle &
Cooke), Honolulu; interview with Colonel William G.
Van Allen, June 8, 1971; The Estate of James Campbell;
Dillingham Land Corporation (a subsidiary of Dillingham
corporation); interview with W. Lawrence Clapp, June 9,
1971. See also Daniel Mandelker, THE ZONING DILEMMA
45-51 (1971).

138/ Eckbo, Dean, Austin & Williams, STATE OF HAWAII LAND
USE DISTRICTS AND REGULATIONS REVIEW (August 15, 1969)
at p. 95.

139/ Interview with Earl Stoner, June 10, 1971.

47 -

140/ Interview with Allan S. Davis, June 8, 1971.

141/ Interview with Harold Hostetter, July 13, 1971; inter-
view with Sunao Kido, June 9, 1971; interview with Dr.
Shelley M. Mark, April 6, 1971; interview with Robert
Wenkam, July 14, 1971.

142/ Interview with Ray Yamashita, Assistant Commissioner,
of Planning, City and County of Honolulu, April 8,
1971.

143/ Dillingham Land Corporation (a subsidiary of Dilling-
ham Corporation).

144/ Interview with Richard H. Cox, June 10, 1971; interview
with Allan S. Davis, June 8, 1971.

145/ Interview with Allan S. Davis, June 8, 1971.

146/ Id.

147/ Interview with Eddie Tangen, June 7,1971.

148/ Marshall Kaplan, Gans, Kahn & Yamamoto, HOUSING IN
HAWAII 66 (1971).

149/ Interview with W. Lawrence Clapp, June 9, 1971.

150/ Id.; Lawrence Cunha of Bishop Estate also pointed to
the requirement of building and dedicating to the
county water and sewer facilities. In the Hawaii-Kai
development on Bishop land the cost of one such plant
to serve 20,000 people was $4 million and@will even-
tually exceed $10 million when developed for full
capacity. Bishop Estate, Honolulu.

151/ Interview with John Hyer, Vice President, Maui Land
and Pineapple Company, July 9, 1971. See also inter-
view with W. Lawrence Clapp, June 9, 1971.

152/ Interview with Robert Way, July 15, 1971. Although
property taxes are relatively low in Hawaii in com-
parison to other states, (The per capita property
tax in 1967-1968 was only $83.33 in comparison to
$137.00 in the median state. BOOK OF THE STATES
1970-71, p. 205.) the tax weighs most heavily on the
owners of older 'single-family homes. (Eckbo, Dean,
Austin & Williams, STATE OF HAWAII LAND USE DISTRICTS
AND REGULATIONS REVIEW (August 15, 1969). at p. 13.)

- 48 -

153/ This developer sold, on the fringe of an urban center
on Oahu, 258 units of a 300-unit development in 60
days at over $40,000 per unit.

154/ Eckbo, Dean, Austin & Williams, STATE OF HAWAII LAND
USE DISTRICTS AND REGULATIONS REVIEW (August 15, 1969)
at pp. 7, 104.

155/ See Bank of Hawaii, CONSTRUCTION IN HAWAII 34-35
(1970).

156/ Id., at p. 2.

157/ Interview with Elmer Cravalho, Maui County Mayor,
July 9, 1971.

158/ "To pursue this type of development is a sure way to
destroy mile after mile of open landscape, an irre-
trievable and, in Hawaii, clearly limited resource."
.Eckbo, Dean, Austin'& Williams, STATE OF HAWAII LAND
USE DISTRICTS AND REGULATIONS REVIEW (August 15, 1969)
at p. 100.

159/ Interview with Roy Takeyama, April 6, 1971; interview
with Sydney Williams, planning consultant on the five-
year boundary review, March 16, 1971.

160/ Eckbo, Dean, Austin & Williams, STATE OF HAWAII LAND
USE DISTRICTS AND REGULATIONS REVIEW (August 1,5, 1969)
at p. 9.

161/ Interview with Philip 1. Yoshimura, April 19, 1971.

1�2/ Eckbo, Dean, Austin & Williams, STATE OF HAWAII LAND
USE DISTRICTS AND REGULATIONS REVIEW (August 15, 1969)
at p. 97.

163/ Id., at p. 96.

164/ Interview with Robert Wenkam, July 14, 1971.

165/ Interview with Roy Takeyama, April 6, 1971; interview
with Earl Stoner, June 10, 1971; interview with Colonel
William G. Van Allen, June 8, 1971.

166/ Interview with Earl Stoner, June 10, 1971.

167/ Interview with Fred K. Kwock, June 7, 1971.

168/ Interview with Allan S. Davis, June 8, 1971.

169/ Interview with Robert Way, March 30, 1971; interview
with Tatsuo Fujimoto, Executive Director of the Land
Use Commission, April 5, 1971; interview with Roy
Takeyama, April 6, 1971; interview with Howard Altman,
April 7, 1971.

170/ Interview with Ah Sung Leong, Staff Planner, Land Use
Commission, April 5, 1971.

171/ Interview with Howard Altman, April 7, 1971; inter-
view with Tom Gill, April 5, 1971.

172/ Interview with Howard Altman, April 7, 1971.

173/ Interview with Roy Takeyama, April 6, 1971.

174/ See Eckbo, Dean, Austin & Williams, STATE OF HAWAII
LAND USE DISTRICTS AND REGULATIONS REVIEW (August 15,
1969) at p. 98.

175/ Interview with Eddie Tangen, June 7, 1971; interview
with W. Lawrence Clapp, June 9, 1971.

176/ oceanic Properties, Inc. (a division of Castle &
Cooke).

177/ Interview with Philip I. Yoshimura, April 19, 1971.

178/ Interview with Ramon Duran, April 8, 1971.

179/ Dr. Shelley M. Mark and Richard Poirier, STATE AND
LOCAL LAND USE PLANNING: SOME LESSONS FROM HAWAII'S
LAND USE LAW (January, 1971) at pp. 6-7. In 1970
the Commission obtained an amendment of the land use
law to codify its practice of attaching to special
permits specific conditions relating to the nature of
development. Samuel B. K. Chang, Bina M. Chun, THE
LAND USE LAW REVISITED: LAND USES OTHER THAN URBAN
(Legislative Reference Bureau, December, 1970) at p.
5. The Commission has also specifically provided for
"incremental zoning in its regulations." See State
of Hawaii, Land Use Commission,.STATE LAND USE DISTRICT
REGULATION effective August 4, 1969 and as amended
January 26, 1971, �2.32.

180/ Haw. Rev. Stats. �205-11.

- 50

181/ Interview with Tom Gill, April 5, 1971.

182/ Interview with Ray Yamashita, April 8, 1971.

183/ Life of the Land v. Land Use commission, Circuit
Court of the First Circuit, Civil Docket #33144.

184/ Interview with Tom Gill, April 5, 1971; interview
with Ray Yamashita, April 8, 1971.

]:85/ Honolulu Advertiser, August 5, 1971, p. 17.

L86/ Interview with Walton Hong, Deputy Attorney General,
April 5, 1971.

187/ Id.; interview with Torn Gill, April 5, 1971.

188/ Interview with Roy Takeyama, April 6, 1971.

]:89/ Interview with Dr. Shelley M. Mark, April 6, 1971.

190/ Interview with Robert Way, March 30, 1971.

191/ Interview with Aaron Levine, April 6, 1971.

L92/ Myron B. Thompson, "Pehea 0 Hawaii e Hoo pono pono,"
PLANNING 1968, at pp. 308, 309.

193/ Interview with Dr. Shelley M. Mark, April 6, 1971.
Dr. Shelley M. Mark and Richard Poirier, STATE AND
LOCAL LAND USE PLANNING: SOME LESSONS FROM HAWAII'S
LAND USE LAW (January, 1971) at p. 3; Thompson, op-
cit., at 312. See, generally, State of Hawaii, De-
partment of Planning and Economic Development, ELE-
MENTS OF THE STATE PLANNING PROCESS, State of Hawaii
General Plan Revision Program (1967).

194/ Interview with Ray Yamashita, April 8, 1971.

195/ Interview with Sydney Williams, March 16, 1971;. inter-
view with Robert Way, March 30, 1971; interview with
Harold Baker, April 6, 1971; interview with Wendell
Kimura, April 19, 1971.

L96/ Interview with Harold Baker, April 6, 1971; interview
with Gordon Soh, April 8, 1971.

197/ Interview with Brian Nishimoto, April 16 1971;
interview with Tom Gill, April 5, 1971; Lkbo,
Dean, Austin & Williams, STATE OF HAWAII LAND USE

DISTRICTS AND REGULATIONS REVIEW (August 15, 1969)
at pp. 8, 14; interview with Roy Takeyama, April 6,
1971; interview with Wendell Kimura,.April 19, 1971.
Dr. Shelley M. Mark and Richard Poirier, STATE AND
LOCAL LAND USE PLANNING: SOME LESSONS FROM HAWAII'S
LAND USE LAW (January, 1971) at p. 8.

198/ Interview with Tom Gill, April 5, 1971; interview
with Brian Nishimoto, April 16, 1971.

199/ Interview with Tom Gill, April 5, 1971.

200/ Haw. Rev. Stats. �246-12.
201/ See, generally, Samuel B. K. Chang, Bina M. Chun,-
THE LAND USE LAW REVISITED: LAND USES OTHER THAN
URBAN (Legislative Reference Bureau, December, 1970)
at pp. 35-39; David T..E. Lum, Samuel G. Camp, III
and Karl Gertel, HAWAII'S EXPERIENCE IN ZONING (Hawaii
Agricultural Experiment Station, College of Tropical
Agriculture, University of Hawaii, Research Report
172, June, 1969) at pp. 29-36. i @ -

202/ David T. E* Lum, Samuel G. Camp, III and Karl Gertel,
HAWAII'S EXPERIENCE IN ZONING (Hawaii Agricultural
Experiment Station, College of Tropical Agriculture,
University of Hawaii, Research Report 172, June, 1969)
at p. 35.

203/ -Myron B. Thompson, "HawAii's State Land Use Law,"
STATE GOVERNMENT, Spring, 1966, at p. 100.

204/ �98H-14. See Frederick K. Nunns, "Hawaii Planning
With a New Zoning Law," JOURNAL OF SOIL AND WATER
CONSERVATION, Vol. 17, No.,3, May-June, 1962, at p.
106.

205/ Interview with Roy Takeyama, April 6, 1971; interview
with Wendell Kimura, April 19, 1971; interview with
.Tom Gill, April 5,--1971.,

206/ Eckbo, Dean, Austin &:Williams, STATE OF HAWAII LAND
USE DISTRICTS AND REGULATIONS REVIEW (August 15, 1969)
at p. 15.

207/ Interview with Sydney Williams, March 16, 1971;
interview with Brian Nishimoto, April 16, 1971.

208/ Interview with Tom Gill, April 5, 1971; interview
with Dr. Shelley m. Mark, April 6, 1971; interview
with Wendell Kimura, April 19, 1971; interview with
Robert Wenkam, July 14, 1971; interview with Tony
Hodges, July 12, 1971. -

209/ Interview with Robert Wenkam, July 14, 1971.

210/ Interview with Wade McVay, June 8, 1971.

211/ Interview with George Akahane, Chairman, Committee
on Planning and Zoning, July 15, 1971.

212/ Eckbo, Dean, Austin & Williams, STATE OF HAWAII LAND
USE DISTRICTS AND REGULATIONS REVIEW (August 15, 1969)
at p. 188.

213/ Interview with Robert Way, March 30, 1971.

214/ Interview with Walton Hong, April 5, 1971; in.terview
with Dr. Shelley M. Mark, April 6, 1971; interview
with Roy Takeyama, April 6, 1971.

215/ Interview with Roy Takeyama, April 6, 1971.

216/ Interview with Dr. Shelley M. Mark, April 6, 1971.

217/ Interview with Ray Yamashita, April 8, 1971.

218/ Interview with Elmer Cravalho, July 9, 1971; inter-
view with Brian Nishimoto, April 16, 1971.

219/ Interview with Robert Way, March 30, 1971; interview
with Wendell Kimura, April 19, 1971. See Dalton v.
City and County of Honolulu, 51 Haw. 400 ' 462 P.2d
199 (1969). But developers have complained that this
has substantially increased their costs and delays.
Interview with Roy Takeyama, April 6, 1971.

220/ Interview with Robert Way, March 30, 1971; interview
with Brian Nishimoto, April 16, 1971; interview with
Philip I. Yoshimura, April 19, 1971.

221/ Interview with Philip I. Yoshimura, April 19, 1971.

222/ Interview with Walton Hong, April 5, 1971.

223/ Interview with Philip I. Yoshimura, April 19, 1971.

- 53

224/ See, generally, Eckbo,.Dean, Austin & Williams,
STATE OF HAWAII LAND USE DISTRICTS AND REGULATIONS
REVIEW (August 15, 1969) at p. 84.

225/ Interview with Howard Nakamura, Director of Planning,
Maui County, July 9, 1971; interview with Robert Way,
March 30, 1971, interview with Dr. Shelley M. Mark,
April 6, 1971; interview with Wendell Kimura, April
19, 1971.

226/ Interview, with Wendell Kimura, April 19, 1971.

- 54

.VERMONT ENVIRONMENTAL CONTROL LAW

History_and_Circumstances of Adoption

Since the early 1960's Vermont has faced a second-
home and ski resort boom. Growth in major population areas
on the eastern seaboard, combined with the construction of
the Interstate highway system, made Vermont a natural center
for this type of development. Many persons in public life
in the state were growing concerned about the impact upon
the character of the state of this recreational explosion
and the possible commercial and industrial expansion that
might be associated with it.

As development pressure increased, local authority
to control the use of land was broadened by the 1967 legisla-
ture, increasing the flexibility of zoning and planning ,
commissions. .1/ State agencies also received broader powers,
and issued regulations to meet specific threats, such as large
subdivisions. _@/ In the summer of 1968 the International
Paper Company proposed a recreational and second-home develop-
ment which encompassed 20,000 acres in the southern part of
the state. @J A large public outcry resulted from the
announcement of this proposal, and Vermont newspapers devoted
substantial space to the discussion of the problems of
recreational development.

In May 1969 the Governor appointed prominent
citizens and legislators to a Governor's Commission on
Environmental Control, which was instructed to hold hearings
and issue a report. The commission made the International
Paper Company proposal its first order of business and soon
found that, as was true in large areas of Vermont, no
mechanism for zoning and subdivision control existed for the
Windham area. in September 1969, Time Magazine quoted
Clifford Jarvis, developer of another project in the Windham
area, as saying that if he sold 300 of his projected 1,735
lots he would recoup his investment. Most of the developers,
said Time,

"have never heard of even rudimentary site
planning, except insofar as it means jamming
as many houses as possible onto their tracts.
Half-acre plots are not unusual. Another
basic problem is sewage. Close beneath the

- 55

new grass lawns is solid, impermeable bed-
rock. Instead of building expensive central
sewage systems for their developments, the
subdividers depend on much cheaper, septic
tanks for each house. [When] the soil
covering the bedrock is so shallow, [tank]
overflow and wastes seep downhill, ending
up in a neighbor's well, a stream or a
lake.-.' 4/

Under Vermont law the adoption of sophisticated
controls by a municipality would have had to be preceded by
the preparation of a c.omprehensive plan for the town--a
time-consuming process.. 5/ As a stopgap measure, the com-
mission in mid-August recommended to the Health Department
that.it adopt subdivision regulations pursuant to the Ad-
ministrative Procedures Act, covering "slope, ground and
surface water quality and water supply and sewer (sic] dis-
posal facilities." 6/ These regulations were rapidly pre-
pared and issued,in September. 7/

The study commission's final report and recommenda-
tions proposed a statewide system of land use planning and
control to ensure environmental protection:

"Facing a period of substantial growth
and intense development in the 1970's
we have the opportunity and hence the
obligation to utilize the newer under-
standing of the science of ecology, and
@the improved knowledge concerning.effec-
tive government organization, to provide
a uniform, comprehensive approach by
state government to assure development
without destruction. A basic goal,
therefore, should be the preparation
of a comprehensive land use plan for
AF the State of Vermont to be undertaken
as soon as practical and completed within
a period of one year. Secondly, such a
plan and its subsequent administration
should be the responsibility of an effec-
tive administrative unit clearly charged
with the responsibility of protecting the
environment B/

Almost all of the study commission's recommendations were
adopted by the 1970 legislature as part of the new Environ-
mental Control Law. 9/

452-329 0 - 72 - 5

Additional background on the commission's report,
together with commentary on the-Environmental Control Law,
can be found in an environmental management study conducted
under the'diItectibh of Elizabeth'H.-Haskell. 10/

The new Law created an Environmental Board (assisted
by seven district commissions) which consolidates and coordi-
nates regulation of the types of land*development specified
in the Law. This regulation is to follow certain general
criteria, and in the future must comply with three state
land use plans, the first of which has already been proposed.
The Environmental Control Law was accompanied by companion
legisla tion dealing with such specific concerns as water and
polluti"on; dedication of open space; mandatory shoreland and
flood,plain zoning; and mobile home park controls. The 1970
Adjourned Session of the legislature was so dominated by
environmental concerns that the passage of the Environmental
Control Law through the legislature@was relatively painless.
Corporate land developers, against whom the bill was pri-
marily directed, offered some o pposition, but not publicly.
Much opposition was diffused by the other specific companion
bills and the few legislators who spoke out against the En-
vironmental Control Law were quickly overwhelmed by legisla-
tors eager to support it. 'The final adoption by the Senate
after its passage by the House was by a unanimous -voice
vote. ll/

Some potential opposition was removed by the
broad exemptions for existing development plans under a
"grandfather" clause that has been generously'construed. 12/
Farming, forest products, and electric power were also ex-
empted, but the Law did assert authority over@all "construc-
tion of improvements for commercial, industrial or residen-
tial use above the elevation of 2,500 feet without excep-
tion." 13/ An early,.attempt was made to ensure the logging
companies followed "good forestry-practices," 14/ but this
was soon,dropped. Sponsors of the legislation explained
that the primary concern in the forest products area was a
massive subdivision on paper company land holdings, 15/ and
that this would be covered by the legislation. The power
companies were also exempted because they were regulated by
an existing agency,'the Public Service Board. 16/

The Environmental Board and District Commissions

As finally passed in the spring of 1970, the
Environmental Control Law details two complementary areas
of responsibility for the State Environmental Board it
creates. one is a judgment function exercised in issuing

- 57 -

development and subdivision permits through seven district
commissions. The other covers the adoption of a statewide,
comprehensive land use plan, to be prepared in three stages.
This plan is to serve as a guide for the Environmental Board
and will aid district commissions in their judgment role.

The Environmental Board is an independent regula-
tory body located within the Agency of Environmental Con-
servation, a newly-created umbrella agency for all Vermont
departments dealing with natural resources. While the
Board's regulatory authority is independent o 'f that of the
Agency, the Board is part of the Agency for staff and
budget purposes. 17/ The nine members of the Environmental
Board are all appointed by the Governor, and serve part time
on a per them basis. 18/ All members serve four-year terms
with the exception of-the. chairman who serves two years.
The terms of the membersare to be staggered,"so that five
appointments expire in each odd numbered year." L9/ No
particular experience or expertise is' required of Board
members by the Law. Those appointed to date represent
a variety of interests.in the state, including conserva-
tion, real esta'te and recreational development,,law en-
forcement, finance, local government, and education.

The district commissions each have three members,
who also serve on a per them basis for four-year terms. 20/
The chairman serves for one year, and the other members
serve two-year terms with their terms'expiring in alternate
years. The role of chairman of the,district commission ap-
proaches a full-time job in an active district. other mem-
bers.devote about one day weekly or biweekly at application
hearings.- Commissioners are paid on a per them basis, but
the uncompensated time required.to review exhibits and pre-
pare for hearings is also substantial. 21/" The members are
appointed from the district in which they serve by the
Governor, and no qualifications for members-are imposed by
the Law. There are seven district commissions representing
the districts shown on the following page. 22

"Developments" for w hich a' permit is required
include the following: construction o.f improvements -for
commercial or industrial purposes on land owned or con-
trolled by a common entity, and exce eding 10 acres (one
acre where the town having jurisdiction has not adopted
zoning or subdivision controls), "housing projects" (other
than subdivisions) consisting of 10 or more units within
a radius of five miles; developments by municipal and state
agencies; and finally, any development,: regardless of acreage

4 A 00 Aa A

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fell "51114.r, I s
DISTRICT COMMISSIONS
it
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Source: Vermont Environmental Boa rd

or the number of units involved, for commercial, industrial
or.residential use above the elevation of 2500 feet., 2-2/
This last requirement is meant to preserve fragile eco-
systems in the state's mountain areas. 2A.1

Reflecting the concern of the study commission
and the state legislature with "second-home" residential
development, the Law directs itself quite specifically
to subdivisions: "No person shall sell or offer for sale
any interest in any subdivision located in this State,
or commence construction on a subdivision . . . without a
permit." 2.@/ "Subdivisions" include all tracts of land
owned or controlled by a common entity and divided for the
"lots" of less than 10
purpose of resale into 10 or more
acres each, within a radius of five miles of any point on
any lot. 26/ The sale of unimproved lots in a subdivision,
as well as the construction of improvements on such lots,
is included within the coverage of the Act.

To protect against unauthorized subdivision the
Law requires that the property transfer tax form required
with every prop'erty.transfer in Vermont must include a
certificate of compliance with or exemption from both the
Environmental Control Law and the Board of Health Regulations,
to be signed under oath by the seller. An example of such a
certificate is on the following page. 22/

The Law also provides for stiff penalties including
fines up to $500 per day and/or two years imprisonment for
violation of the provisions of the Law. 18/ However,- except
for the transfer tax report for subdivisions, it is essen-
tially self-policing, relying on private individuals to report
those developments which do not come to the attention of the
state through application,to other agencies.

Applications for Permits--The District commissions

Applicants who seek to subdivide or undertake other
development subject to the Law's jurisdiction must seek a
permit under the taw. District commissions function under
the Board as a local hearing body in the initial stage of
the permit-issuing process. The district commissions are
assisted administratively by regional coordinators, who serve
as administrative officers. 29
J The commissions may also
utilize additional administrative support from the area's
regional planning commission.

- 60
HEALTH BOARD CERTIFICATE

Instructions: Section 14 of Act No. 291 of the 1969 adjourned session of the Vermont
and after June 8 1970 parties to a transfer deed or leas or their legal representatives certify on the property transfer return
whether the transfer is in compliance A with or is exempt from the board of health subdivision regulations(Vermont Health Recgu-
lations - Chapter 5. Subchapter 10. as amended).
Compliance: A transfer is in compliance with these regulations only if the land being transferred is delineated as a parcel or
lot on a subdivision plan which his been approved by the department, of health pursuant to such regulations and a subdivision
permit covering this parcel or lot has been issued.
Exemption: A transfer is exempt from these regulations only if the transfer is one for which such regulations do not require
a permit. The regulations do not require a permit if:( 1) the transfer does not constitute subdivision" as that term is defined
in section 5-902(a) of the regulations: or(2)the land being transferred is delincated as a parcel or lot in an "existing subdivision"
as that phrase is defined in section 5-902(d) of the regulations. The following are examples of exempt transfORm (a) the land
being transferred is not an "improvable parcel*' as that phrase is defined in section 5-902(c) of the regulations and the transfer
will not result in the creation of three or more parcels each of which is ten acres or less in area (b) the land being transferred
is larger than ten acres in area and the cransfer will not result in the creation of three or more parcels each of which i ten acres
or less in area: (c) the transfer does not divide anv lands, i.e. the entire tract is being conveyed (d) this transfer plus all other
transfers out of the same tract since September 18.1969 by the same owner or lessor do not result in the creation of three or
more improvable parcels cacti of which,is ten acres or less in area; (e) the land being transferred is delineated on a subvisiOin
plan approved b% a municipality pursuant to a local subdivision (not zoning) ordinance prior to September 18, 1969(f) the land
being transferred is delineated on a subdivision plan prepared by an engineer or land surveyor and filed for record in the to%% n
clerk's office prior to September 18. 1961) and, prior to char date', one or more lots depicted thereon were conveyed or made The
subject of a contract for sale; (g) the land being transferred is part of a tract which the department of health has certified as
being an "existing subdivision".
Note: A town clerk may not record vour deed or lease unless it is accompanied by* a completed certificate. Any transfer in vio-
lation of the regulations'will result in a forfeiture to the state in the amount of S 1000 and a lien on the property so transferred.

Instructions: Section' 30 of Act No. 250of the 1969 adjourned session of [he
Vermont General Assembly requires that on and after June 1, 1970, a seller
of land certifies on the property transfer return whether the conveyance is in
compliance with or exempt from the provisions of Act No. 250. (Copics of the
Act may be found in any town clerk's office or tie office of any district com-
mission of the Environment Board, the locations of which are listed in Rule I A
of the Board).
Compliance: A conveyance of property is in compliance with Act No.
ained a permit. (See Section 6 of Act No. 250).
Exemption: A conveyance of property is exempt from the Act if: (1) the con-

veyance is specifically exempt under Section 6 or 7 of the Act, or
veyance is from a parcel of land which is not a "subdivision" as defined in Section
2, subsection (9) of the Act.
Note: A town clerk may nor record your deed unless it is accompanied by a com-
pleted certificate. (See section 30 of Act No. 250).

REQUIRED BY NO. 291 1969 ADJOURNED SESSION REQUIRED BY NO. 250 1969 ADJOURNED SESSION
BOARD OF HEALTH SUBDIVISION REGULATIONS (VERMONT LAND USE AND DEVELOPMENT PLANS ACT I
PLEASE CHECK APPROFRIATE SOUARE AND ENTER PERMIT NUMBER IN A SUBDIVISION PERMIT HAS BEEN PLEASF CHECK APPROPRIATE SQUARE AND ENTER PERMIT NUMBER IF A SUBDIVISION PERMIT HAS BEEN
IISUE "SUED
THIS TRANSFER IS IN COMPLIANCE WITH THE SUBDIVISIOIN REGULATIONS Of THE BOARD OF HEALTH
SUBCHAPTER 10 AS AMENDED. THIS TRANSFER IN COMPLIANCE WITH ACT NO 250 OF THE 1949 ADJOURNED SESSION
VERMONT BOARD OF WEALTH REATION

PERMIT NO PERMIT AD
THIS TRANSFER IS EXEMPT FROM THE SUBOION REVIEW REOUIREMENT'S OF THE BOARD ON q, THIS TRANSFER IS EXEMPT FROM THE SUBDIVISION REVIEW REOUIREMENTS Of ACT N0 250 OF
HEALTH VERMONT BOARD OF HEALTH REGULATIONS.CHAPTER 5 SUBCHAPTER10 AS AMENDED THE 69 ADJOURNED SESSION

SPECIFY REASON FOR EXEMPTION SPECIFY REASON FOR EXEMPTION

UNDER PENALTIES Of PURJURY. IN- WE SWEAR OR AFFIRMTHAT THIS CERTIFIACTE IS TRUE CORRECTS AND UNDER PENALTIES Of PURJURY WE SWEAR OR AFFIRM THAT THIS CERTIFICATE IS TRUE CORRECT AND
COMPLETE
COMPLETE
TRANSFEROR(S)- TRANSFEREE (S) TRANSFEROR (S)

THIS CERTIFICATE MUST BE SIGNED BY TRANFERORS BY A REPRESENTATIVE

The statutory parties before the district
commission on any application may include state agenciest
the regional planning commission, the town planning
commission, the town selectmen, adjoining property owners
(who are parties of right), and private interest groups
(who may be parties at the discretion of.the district
commission).

Persons normally initiate applications them-
selves. After notice and a copy of the application is
served on the local selectmen, planning commission and
the regional planning commission, the regional coordinator
accepts the application for the district commission. ili/
His acceptance initiates the formal application process,
and time limits run from that time. Five copies of the
application are filed together with supporting exhibits. 12/
Published notice is also required withfiling. Adjoining
property owners may respond to this notice and request
to be madeparties to a hearing on the application. Two
copies of the application are forwarded to the Environmental
Board and one to the,local "environmental,advisor" (who is
the local state forester wearing a different hat). The
Environmental Board.sends one copy to the Agency 250 Review
Committee, an inter-agency review committee which coordi-,
nates statereview. The environmental advisor makes an
onsite inspection and repor'ts to the,state. During this
period the district cormTtission,may also honor requeststo
appear by concerned groups-or may solicit such groups as
parties to protect special interests in the application. 3
Under the statute, a challenge by any of these parties
necessitates a hearing, 1@/ but as a matter of policy,
district commissions presently conduct a hearing on all
applications. 3 Such a hearing,will ordinarily be
initiated within 20 days of application. g6/

The district commissionshave the power to
subpoena witnesses and require, the.production of evidence.
Hearings themselves, however,,are often.very.informal. While
� legally,trained commission member is important in guiding
� hearing, commissions have found that informal meetings
without counsel representing developers lead to rapid and
satisfactory results. 3
.@8

The Law states that 11(o]ther departments and
agencies of state government shall cooperate with the board
and make available to it data, facilities and personnel as

- 62

may be needed to assist the board in carrying out its duties
and functions." 29

The Protection Division of the Agency of Environ-
mental Conservation processes applications, insuring that
all interested agencies lear about the application by sending
to each a standard form requesting review of the application.
These agencies review the application for compliance with
departmental rules and also supply any special expertise they
hold with respect to the criteria set out in the Law. The
departments receiving requests for review then return the
form with their comments and recommendations to the Division,
indicating whether they wish'to present their own views at
any district hearings, or to allow the Agency to represent
their views as expressed in their comments on the review
fo rm. AY -

After the comments of the other departments are
received by the Division, it prepares a summary of the
comments and recommendations and also a proposed Agency
position on the application. This is then taken before the
Agency 250 Review Committee--named after Act 250, the
original citation to the Environmental Control Law--an
interdepartmental body consisting of representatives from
conservation agency departments and from other state
departments (eq., Highways) having a continuing interest
in applications for permits under the Environmental Control
Law. The function of the committee (which meets biweekly)
is to bring to bear on each application the combined
expertise of the various arms of the Vermont government,
and to communicate any suggestions they may have to the
district commission in a single document (the Agency position
paper). The goal is to provide the commissions with
technical information they would not otherwise receive
and to promote uniformity in their decisions. Lly

Once the Agency position is formulated, the
Division prepares the position paper, noting any disagree-
ments which exist between various departments, and sends
it to the district commission prior to the time the hearing
is scheduled on the application. �2J The Agency notes on
the position paper whether experts from the Agency staff or
other state departments will testify personally at the
hearing. The environmental advisor may also appear at the
hearing, and on major or highly technical applications a
representative from an appropriate state agency is sent
out. @L3J

At the present time, the Agency position paper
is frequently the most articulate technical presentation
at district commission hearings, since other parties are
often unacquainted with the process, and towns have been
known to simply ignore invitations,to appear as parties.
Thus, Agency recommendations'have been influential in the
district commission.. These recommendations are generally@
not'for a flat denial or approval, but consist of a list
of conditions which the state feels should be imposed upon
the development.

This committee review is'also an opportunity for
various state departments to exchange views on policy and
coordinate other related activities. This communication
channel has proved to be one of the useful by-products of
the Environmental Control legislation. jj/ A chart showing
the operation of the Agency 250 Review Committee is shown
on the next.page. (The chart on the following page indi-
cates projected time in process in state agencies.)

The regional planning commission is another
statutory party to the application. While generalization
at the regional and local level is difficult, regional plans
often are articulated in such general terms tha t they are
weak as a direct input in the district commission decision. 45/

The local planning commission does offer a more
significant input in towns where it is functioning. The
local planners are an independent party to the application
which cannot be approved unless it is in conformance "with
a duly adopted local or regional plan. . . ." A recent
Attorney General's decisionholds that an application must
conform to both regional and local plans for a permit to be
granted. 46/ Nevertheless, the local planning process is
only in the initial stages of articulation in most towns,
and often the local plan, even if duly adopted, is still too
general to give any specific guidelines for a decision.

Local selectmen are just beginning to appreciate
the review process. In initial hearings they often appeared
without counsel and with little understanding of the Law.
While this communication problem is being overcome, substan-
tial hostility toward land use controls remains among some
selectmen. 17/

64 -

Detail of State Act 250 Review Process

Environmental Board Agency of Environmental Conservation

A nine-member independent board Cabinet level agency for all
in Agency for budget and staff Vermont departments dealing
purposes. Administrative author- with natural resources.
ity over district commissions;
hears appeals from them on
development permits.

Agency 250 Revi;w Committee
Other Agencies
Receives a copy of each appli- are Members of
cation to the district comnissionsY 250 Review Com-
submits each for review to mittee:
Agency units, and prepares Agency Units:
Regional Coordinators position paper representing Water Resources
views of'Agency and all review- Forests and Parks
Five regional offices of ing units which is presented Fish and Game
Environmental Board have to district commission for its 2) Other state
been established, with six use in reaching a decision on agencies:
regional coordinators who the application. Same process Highway
act as staff for the dis- applies when appeals are taken Education
trict-commissions. o nvironmental. Board. Health

District Commissions

Seven three-member commissions:
Receive and decide upon all
applications for permits for Protection Division..Agency
residential, co=ercial, and of Environmental Conservation
industrial developments.
Decision is final unless Environmental Advisors: (Sta@te
appealed. J foresters in each county). In-
structed to conduct pre-application
conference with each potential
applicant and inform them of pre-
parations necessary, answer any
questions. Also instructed to
make on-site inspections, and sub-
mit their comments on applications
to Agency.

TIME SEQUENCE--250'PROGRAM

Receipt, fe lopen lo ator--
applicatj;@ e file
istrict coordinator 0 FE_x_e@utive Director Division o Review selecti
ne one two
five copi s a---Vj Environmental Board tection. . --three co les
A40-a-L
one Hdi --two- copies ay --two copies days
d rLy

Environmental Advisor FA-gency Review Commi
four days Ln
1--one copy

one day.

Reviewing Agencies six Reviews fi ed two _FAg-ency Review Commi tee
--copies as requiredl Division o f
clays Protection @ays

Position Brief: two days
Filed--Hearing

TOTAL TIME IN PROCESS--15 DAYS
r ne Div
tec
y
an
t

Special interest 'groups often provide independent
expert testimony in district commission hearings. Groups
invited to appear may range from realtor or commercial
interests to conservation societies. 48/ Adjoining property
owners are parties as a matter of right. However, they do
not always respond to published notice and consequently
they generally are not an important input except in major
cases.

I The information gained from the testimony at the
hearing (where frequently state and municipal officials or
experts, as well as local citizens, will testify) is added
to the various other sources of information at the disposal
of the district commission in reaching its decision. The
applicant's exhibits usually include a detailed plan of the
entire proposed development, and other parties will have
presented existing local or regional land use plans, state
-highway maps, and the Agency 250 position paper. Often the
environmental advisor will be asked to testify concerning
his inspection of the site and other information which he
has. Neither the commission itself nor the area coordinator
regularly conducts fact-finding investigations or onsite
inspections. Both are viewed as acting in the capacity of a
neutral "jury," listening to the parties presenting evidence
to meet their respective burdens of proof. 49/ Generally,
state officials feel that district commissions have expressed
a high degree of technical competence in their decisions,
and have not been relying solely on their own prejudices or
the local popularity of the project.

The standards for the district commission's deci-
sions are specified in section 12 of the Law. Applications
may be denied by local district commissions if they find that
the proposed subdivision or development would be "detrimental
to the public health, s,Afety or general welfare,." but the
district commission must, give specific reasons for the denial
of the permit. Before a district commission may grant a
permit, it must find that the development:

11@(1) will not result in undue water or
air pollution. In making this,determina-
tion it shall at least-consider: the
elevation of land above sea level; and
in relation to.the flood plains, the
nature of soil and subsoil and their
ability to adequately support waste dis-
posal; the slope of the land and its

effect on effluents; the availability
of streams for disposal of effluents-
and the applicable health and water @e_
sources department regulations.

"(2) Does have sufficient water avail-
able for the reasonably foreseeable needs
of the subdivision@or development.

"(3) Will not cause an unreasonable
burden on an existing water supply, if
one is to be utilized.

"(4) Will not cause unreasonable soil
erosion or reduction in the capacity of
the land to hold water so that a danger-
ous or unhealthycond1tion may result.

"(5) Will not cause unreasonable hiqh-w
way congestion or unsafe conditions with
respect to use of the highways existing
or proposed.

"(6) Will not cause an unreasonable burden
on the ability of a municipality to pro-
vide educational services.

"(7) Will not place an unreasonable
burden on the ability of the local govern-
ment to provide municipality or govern-
mental services.

"(8) Will not have an undue adverse ef-
fect on the scenic or natural beauty of
the area, aesthetics, historic-sites or
rare and irreplaceable natural areas.

"(9) Is in conformance with a duly
adopted development plan, land use plan
or land capability plan [the statewide
plans required by the Law].

"(10) Is in conformance with any duly
adopted local or regional plan'under
Chapter 91 of Title 24." 50/

The burden of proof is on the applicant for criteria num-
bered 1-4, 9, and 10, and on any opposing parties for cri-
teria 5 through 8. 51/

These criteria are by no means the only ones
which may be considered by the district commissions,
although up to this point in time they seem to have been
the primary factors considered. The Act also provides
that:

"A permit may contain such requirements
and conditions as are allowable within
the proper exercise of the police power
and which are appropriate with respect
to (1) through (10) of subsection (a) ,
including but not limited to those set
forth in Section 4407(4), (8) and (9),
4411 (8), (2), 4415, 4416 and 4417 of
Title 24, the dedications of lands for
public use, and filing of bonds to in-
sure compliance. The requirements and
conditions incorporated from Title 24
.may be applied whether or not a local
plan has been adopted. General require-
ments and conditions may be established
by rule." 5
.@@2/

These cited sections are those which enable municipalities
to adopt regulations dealing with subdivision design and
layout, public improvements, municipal services, parking
requirements, performance bonds, and flood plain zoning.

The Environmental Board ha s authorized district
commissions to refer to the model subdivision regulations
of the Vermont Planning and Community Services Agency as a
guide for decisions on permits. 54/ The Board has also
developed guidelines for power line emplacement..@v
Current plans are to deal with such specific problem areas
before moving to elaborate on the general statutory
criteria. L6J

The district commissions themselves appear to
have been exercising their regulatory authority quite
broadly in imposing conditions on permits, both as to
subdivision control and other matters.. Many conditions
have dealt with,scenic, historic or aesthetic requirements,
such as protection of scenic areas, landscaping, prohibi-
tion from filling,of wetlands or beaver ponds, etc.
Traditional zoning and subdivision requirements have also
been imposed, such as minimum space for parking, building

setbacks from lot lines, and connection to county or municipal
roads, sewers and water mains. Ecological conditions have
been imposed concerning the use of pesticides, soil erosion,
and air and water pollution. Specifications for plumbing,
heating, and electrical systems have been imposed. Some
conditions have dealt with the protection of adjacent
property owners, such as requiring that their water supply
not be depleted, or that construction not be undertaken in
a disputed property area. 17Y Thus while conscientiously
adhering to statutory principles, district commissions appear
to appreciate the flexibility the statute.offers.

The statute limits the parties who may appeal to
the Environmental Board from a district commission decision.
"For the purposes of appeal only the applicant, a state
agency, the regional and municipal planning commissions
and the municipalities required to receive notice shall be
considered parties.".5 However, to prevent appeals being
taken to the courts on the informal record of the district
commission, the Board will generally recognize any party on
appeal who was properly before the district commission.

Once an appeal is taken, the Board is directed
to issue notice to interested parties and to schedule a
de novo hearing on all issues requested by any party. @-9/
The Board makes an entirely new decision based upon the
same criteria which govern the district commission, and
makes its own determination whether to grant or deny the
permit. The applicant may raise new issues or additional
proof s before the Board.

If any party to the appeal is still dissatisfied,
the statute provides for a further appeal to the Supreme
Court of Vermont. In the judicial appeal, no objection
may be considered which was not raised before the state
Board. Findings of fact by the state Board are conclusive
if supported by substantial-evidence from the written
r
ecord which is kept by the Board.

The overall structure of the review process as.
shown in the chart on the following page is not a substitute
for any other permits also.required by the municipality
and the state. -9-0-/ Some regional coordinators try to guide
applicants to the other permits required, but this is not
officially a part of their duties. The plethora of other
local and state applications is recognized in the statute,

STRUCTURE OF THE VERMONT ENVIRONMENTAL PROTECTION SYSTEM
(not all inclusive)
State GovTroor to be reorganized
Planni g
Office

Agency 0: Agency of Agency Of
En@lro= ntal Human Services De@clO!Ment
and
Couce"ation C=Iunity
Affairs

Divi Ion o.41
Environmental Kts
Heard .1 It
Sit

Protection D-artment.
D'vira'on- of Fisa & Division or
Envi 0 ental G@ AeglOzzal Proera=3
Ad@i Zrr@ Adi1nistr.tion

R glonal t
C rdinatora
Ag STATE REVIEW ROCESS

7 District CGIMMissions
6ZA

a
e C777-1 Parties
t
r ps
C --t,:t to Di:trict
. se.. .e C-1 Ion
f S th V@= nt; Proceedings

as
/co7&sl0n)' vol r. be,/partofea
je'a@e
ACT 250 REVIEW PROCESS LOCAL REVIEW PROCESS

STRUCTURE OF TILE VER.KONT ENVIRONMUNTAL PROTECTION SYSTMI (not all inclusive)

1. The State Review Process 111. Local Review Process

This is the traditional structure of Permits and In most communities this is weak or nonexistent.
lic:nses required in most states. With increases in Where it exists it can be as pc@erful as the district
dev lopmental pressure, they have responded with incre@s- commission. Thus, while the ' strict commission may
ingly detailed reculation in their respective areas. open the eves of quiescent loacal I planners, a sophisLi-
The is being r cated locai review proces. ill probably operate inde-
eorqanized in cabinet level pendently. it is not unusual for local people to dis-
super agen:tiactsewhich group departnents functionally. approve projects approved by local district commissions.
While natural resources are generally represented in the
Agency of Environrental C0n5CrVdtL0n, note that other IV. The Regional Planning Commission
Agencies ha@c departments with a significant relationship
to environmental concerns. This commission sits between local. 250, and
tate plans and regulations. The 253 legislation es-
11. Act 250 Review Process :entially bypassed it. Although C011ftlSingly similar
in name, the district ccmnission and the reqional com-
While this is a creature of the state govcrnent, mission are administratively in different )urLsdictions,
It is the Ag oney250 Committee that proviaes a state geographically not co-extensive, ana exercise very dif-
review liaison. The d istrict commission is a quasi- ferent functions. However, the regional plan is of the
I body,.Lhat.ha:.the capacity to deal ith all inter- statutory criteria which must be met for an Act 250
!09CL:d Loca p@r io permit.
High,my
Board

Pri
r
C
C
-ocir
.3 r

- 71 -

which authorizes the Environmental Board by rule to sub-
stitute approval, by other agencies as.prima facie evidence
of compliance with the various provisions of the Environ-
mental Control Law. 61/ However, the Board is moving very
cautiously in this area and there is some feeling that ad-
ministrative consolidation of the application process,
without changing the number of permits generated would be
the best initial step to ease the burden on developers.
This would at least avoid abandoning substantive tests
before the system has had a longer time to prove itself. 62/

The Three State Plans

The Environmental control Law provides for three
state plans which are to be adopted by the Board; (1) an
interim capability plan which is a catalogue of current
land uses and capabilities; (2) a capability and develop-
ment plan; and (3) a land use plan. 63/ once any of these
plans is completed the Law requires Chat each applicant
must bear the burden.of showing that his proposed develop7
ment is "in conformance" with the plan. .64/

With these plans, the state planning office hopes
to provide:

(1) a criteria for issuing develop-
ment and subdivision permits as
set forth in Act No. 250, Sec.
12(a)(9);

(2) a guide for state agency operations;

(3) a guide to regional agencies and
local governments in carrying out
their planning and implementing
efforts; and

(4) a means of informing.private
enterprise of public goals and
.policies thereby facilitating
their activities. 65/

The interim land capability plan has been completed and is
awaiting adoption by the Board. The other two plans are
scheduled for completion in 1973.

452-329 0 - 72 - 6

- 72 -

The interim land capability plan consists in part
of maps which display "the present use of the land and
defining in broad categories the capability of the land for
development and use based on ecological considerations." L6J
The state planning office has interpreted this to include:

geology, surficial and agricultural
underlying,topography forest types and coverage
hydrology, surface and alpine and mountain habitat
@ flood plains unique natural areas
historic sites significant land holdings
scenic vistas population distribution
settlement patterns and other graphic information
urbanization about the land and its
land transfers capability.
soil characteristics

There are five such maps included in the plan booklet, with
blown-up, detailed versions for each county. The maps illu-
strate generalized land uses, limitations for development,
surface waters, capability for agriculture and forestry, and
unique or fragile environments.

In addition, the interim land capability plan con-
tains a good deal of written matter outlining the factors
which led to the various map classifications. The plan is
generally divided into four sections:

1. Generalized land use.

2. Physical limitations for development.

3. Capability for agriculture, forestry
and mineral extraction.

4. Unique or fragile areas.

The plan is basically a summary of relevant factors
which ought to influence the location and regulation of
development, together with a recitation of values which the
state should seek to retain and preserve. For example, a
section on "Physical Limitations for Development" discusses
the capability of soils to support building foundations and
to absorb liquid wastes from septic tank disposal systems.
Another section discusses "VQlnerable Environments" and "Unique
or Fragile Areas" such as wetlands, waterways, high elevations,
unique geologic areas and historic sites. @_8/

There is little in the way of actual recommendation
in the plan, however. The following general governing
principles are set out at the opening chapter: 69/

1. Development would be logically related
to established settlements.

2. Development would not occur in those
places where environmental damage or
damage to sites of historical or
educational significance would most
likely exceed gains from development.

3. Protection of the environment and
increases in efficiency can be
achieved by conforming with known
environmental limitations.

4. Ideally, development would not displace
important non-urban uses relying upon
basic characteristics of the land.

Other recommendations are often buried deeply within a para-
graph summarizing the above-mentioned factors to be considered
in regulating development. There are some exceptions. For
example, italicized in the middle of a section dealing with
liquid waste disposal is the following: 70/

"In areas where waste matter or contaminated
surface wastes may enter ground waste sup-
plies, the use of septic tanks for waste
disposal, or any development activity which
may lead to the introduction of easily
soluble pollutants into the environment
regardless of method of waste treatment,
cannot be recommended."

A separate report entitled "Vermont: Social and
Economic Issues" was issued by the state planning office at
the same time as the 1'nterim land capability plan. 71/ This
report contains projects of future population and economic
growth but is not considered by the state planning office
to be part of the interim land capability plan. 72/

What the effect of the interim land capability plan
will be is the subject.of some dispute. Whereas the Law
talks in terms of such an interim capability plan being "in
effect" until the adoption of the land use plan (or July 1,
1972, whichever occurs first), and while �12(a)(9) of the

Law.cites as one of the conditions for the granting of an
application that it "is in conformance with a duly adopted
development plan, land use plan, or land capability plan,".
[emphasis added] at least one state official contends that
the plan.is wholly.without legal effect 'on the application
and regulation processes'of the Law. According to Schuyler
Jackson, who heads the Agency 250 Review Committee, the
interim section 18 plan is "only advisory." It is his opinion
that a permit application would never be refused on the ground
that it did not conform to a provision of the interim land
capability plan. In fact, Jackson is not sure the plan, or
the later plans for that matter, will have any "practical
effect," since his agency tends to use other maps, allegedly
more detailed than anything the planning office uses, to
decide on the environmental effects of a particular applica-
tion anyway.

Robert Babcock, Jr., executive director of the Envi-
ronmental Board, has a similar view of the legal effect of the
interim plan. However, in his opinion the plan will have a
good deal of practical effect because of wTTat he speculates
will be the innocuous nature of the later land use plan that
will eventually be adopted. Since the legislature will have
to approve it, Babcock anticipates that the plan will contain
a map that will designate all except the high mountain areas
as "developable with limitations" to avoid antagonizing
legislators from those districts in which development ought
not to take place according to the factors shown on the
interim land capability plan. If so, then the only statutory
instrument which will offer any guidance to the local commis-
sions in making planning decisions will be the interim land
capability plan. 24/

The capability and development plan is to be a
statement of basic goals, objectives and policies consistent
with the interim land capability plan'which propose "a coordi-
nated, efficient and economic development of the state, which
will, in accordance with future needs and resources, best
promote the health, safety, order, convenience, prosperity
and welfare of.the inhabitants, as well as efficiency and
economy in the process of development . . . ." 25/ The
statutory standards include population distribution and
various land uses which could "reduce wastes of financial
and human resources . . . and tend toward an efficient and
economic utilization of drainage, sanitary and other
facilities . . . and the conservation and production of the
supply of flood, water and minerals." 26/ The statute provides

- 75 -

that this plan must be "consistent" with the section 18 plan.
Its objectives will be met with written statements, supported
by maps, charts and graphs which relate to settlement patterns
and land use. This plan and the section 20 plan will address
three major policy areas:

I. Public authority and policy.

Consideration should be given to national and
state legal structures, programs, and policies
regarding:

A. Tax systems;

B. Public expenditures;

C. Forms of police power execution.

II. Appropriate use of land.

A. Identifying areas that are, as a result of
various demands made upon the land:

1. renewable if properly managed;

2. non-renewable if used at all.

B. Identifying areas of optimum use by type
for forestry, agriculture, recreation,
urban settlement, preservation, and public
service corridors.

C. Comparing optimum use to dominant economic
demands by category and to competing economic
and other demands by category.

III. Population growth and optimum settlement pattern.

Trends concerning population growth and dis-
tribution should be projected according to the
following optional patterns:,

A. Permit existing urbanized (including recrea-
tion) areas to expand into currently non-
urbanized areas.

B. Draw boundaries around currently urbanized
(including recreation) areas, and/or:

76 -

1. intensify existing urban area densities;

2. locate new sites outside existing
urbanized areas for future dense
settlement.

C. Limit absolute population growth in the state
through economic and other policies. 277/

While some people have suggested a point system for rating
development, this does. not presently appear to be an objec-
tive of the planners. 2-8/

The statutory process for the adoption of the
capability and development plan includes hearings in each
district, adoption by the Environmental Board, approval by
the governor, and approval by both houses of the state
legislature. 2-9/

The land use plan will consist of "a map and
statements of present and prospective land uses based on
the capability and development plan, which determine in
broad categories the proper use of the lands of the state
whether for forestry, recreation, agriculture, or urban
purposes . . . .-I Pg/ The current intention is to divide
the state into several categories of land-use districts,
each of which will correspond to appropriate constraints
for subdivision or development permits under the Law. q-l/

While usable land in the state will generally fall
under criteria favoring development, certain identified areas
of special interest (i.e., natural, scenic, or historic value)
will fall into land-use zones where development is discouraged.
These areas will include lands for which the development
rights have been acquired by the state, such as state and
national forests, but are not limited to them.

This plan is to be adopted in the same manner as the 21-
capability and development plan. Under the present schedules,
both plans will be developed as a package and will come before
the legislature concurrently in 1973. P2/ The time required
for the preparation of these.plans presents some problem,
since the interim land capability plan lapses July 1, 1972. 8
.g 3/
This leaves the district commissions without any "duly adopted"
state guidelines during the latter part of the preparations
for the final plans. q4/

Other Aspects of the Planning Process

Planning at the state level is an executive func-
tion and the governor has assumed responsibility for the
preparation of the Environmental Control Law plans in his
office. g_5/ There is a state planning office attached di-
rectly to the governor and responsible for state planning at
the broad policy level. (Each cabinet level Agency, except
the Agency of Administration, also has a planning office
responsible for more specific and detailed planning, such
as state recreational plans.) To provide overall supervision
for the planning staffs, the governor has created a State
Planning Committee composed of the governor, his cabinet,
and the chairman of the Environmental Board. Thus , in the
functional apparatus the Environmental Board is a relatively
minor part of the planning process although it must "adopt"
the state plans.

Regional task forces, made up primarily of the
members of.regional planning commissions have been created
by the governor to coordinate all activity at the local and
regional level and to report to the State Plan Steering Com-
mittee which is the functional arm of the State Planning
Committee. 86/ The regional planning commissions, while
they may share staff with the district environmental com-
missions, 87/ are administered by the Agency of Development
and Community Affairs. Since the Environmental control Law
requires conformance to duly adopted regional plans pre-
pared by these groups independently, they are important
both as a part of the state planning process and for their
own work product.

it is very difficult to generalize about the plan-
ning inputs below the state level. In the past there has
been little communication between state and local planners-
due to a lack of resources. The new planning process is just
beginning to overcome the earlier gaps in communication, but
regional and local planners remain virtually autonomous
bodies funded from sources of varying reliability and gen-
erosity. Local planning commissions vary from well-established
(Shelburne has been planning for approximately seven years
in a formal program), to hasty responses to the Environmental
Control Law. Goals and policy also vary from one commission
to another (e.q-, housing unit densities may vary significantly
between local and regional planners). .282

The ambiguities in the lines of authority and the
different interests represented at all levels are examples
of the problems which were faced in creating a state plan.

r4
I-
m
r4

STATE PLAN ING
N 4
COMMITTEE

Statewide Publ-ic Governor
Interest Group, Cabinet
Chairman of En- Lnt @4
vironmental Board 0
04
State Plan Steering
F, Committee

LA
P4 "'.1 STAFF 04
rX4 (D
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State Research Projects 4j
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@4
L
STATE STATE REGIONAL
AGENCIES ENVIRONMENTAL] TASK
B RD FORCES

OF THE STATE OF VERMONT
FT PEOPLE

- 79 -

The local and regional inputs could not be ignored since
the formal adoption process includes approval by the legis-
lature for the two later plans. The structure is much
clearer now, but the organization is not yet wholly opera-
tional.

Funding can be a particular problem, shifting the
locus of power from local,to regional planning commission
in some areas. Vermont regional planning commissions have
often used federal or foundation money to support their
effort. Local planners in an area with a strong developer.
will. often also be aided by the developer's surveys. Thus,
depending on the area of the state being examined,the dis-
trict commission judgment function will be performed under
significantly different local conditions. Likewise the
regional planning task forces will operate under varying
political conditions.

After final adoption, the Law appears to make
state plans binding criteria for the district commission
decisions. While there must be some discretionary element
in commission decisions, at least to rationalize inconsistent
planning criteria, the Law seems to contemplate well-defined
land use districts and criteria of land capability. The
Law thus provides a procedure for changing these boundaries
or criteria.

The plans may be adjusted by petitioning the
Environmental Board which forwards the petition to the dis-
trict and regional c9mmissions for comment. A hearing must
be advertised "[alfter 60 days but before 120 days . . .
to be held in the appropriate county." 89/ Before the land
use plan may be adjusted it must be shown that:

(1) The petitioner has submitted proof
that the land is usable and adaptable for
the use for which it is proposed to be
classified, and

(2) Conditions and trends of development
have so changed since the adoption of the
present classification, that the proposed
classification is reasonable. 90/

For a change in either capability plan there must be a demon-
stration that "the land is capable of sustaining the use
proposed." 91/ Court appeals from these decisions are
similar to appeals from permit applications.

80 -

Adequacy of the Law's CoveIrage

Exemptions from the Environmental Control Law
pose several problems. These include: (1) The "grandfather"
clause protecting pre-existing development plans which leaves
the potential for unregulated development unchecked in some
areas of Vermont. officials estimate that the total number
of state housing-units could be increased by a factor as
large as 1/3 under this clause. (2) Acreage requirements
which bear little relation to the potential for harm and
allow both strip development or small parcels and large-lot
subdivisions to g'o unchecked. (3) other exemptions which
also bear little relation to their potential harm. Farming
and forestry require no permit while even primitive recrea-
tional development does. (4) The "five-mile radius" test
for a subdivision which ignores the fact that Vermont does
not maintain plot or property ownership maps.

The exemption for "existing subdivisions" is
taken from the Vermont Health Regulations and includes a
subdivision: (1) approved by a municipality pursuant to a
subdivision ordinance; or (2) for which a plot plan has
been filed in the town clerk's office and one or more lots
have been sold or made subject to a contract for sale; or
(3) accepted by the Department of Health as a subdivision
based on a number of reliance criteria. 92/ This clause
has been construed generously to avoid application of new
planning criteria developed in the wake of the Environmental
Control Law to developments underway when the Law went into
effect. However, district commissions may also avoid its
provisions in practice. The Addison District Commission
required the justification of an exempt subdivision when the
subdivider applied for a development permit for an access
road. 23/ In another case, the Wilmington District Com-
mission denied permission to create a recreational lake in
a subdivision which was itself exempt. 94/

The Law's acreage requirements bear,little relation-
ship to the potential for environmental harm a project offers.
The 10 acre maximum lot size is shared with the Department
of Health subdivision regulations, and neither scheme checks
the developer dealing in larger lots. If such a developer
sells lots with easements for driveways, a substantial sub-
division can be created without any restraint. If at some
point a "driveway" exceeds 10 acres, perhaps a development
permit would be required, but the district commission would
be faced with a substantial reliance interest, as well as a
serious question of how much incremental "development" should

be handled. Numerous signs Along Vermont roadsides offering
"lots 10+ acres" attest to the popularity of this
idea.

The 10-acre test for the application of the Law
to development also bears little 'relation to environmental
danger. Much of the service station and motel strip develop-
ment surrounding small towns is exempt from district com-
mission review under these standards. This inability to
reach some visibly poor development.is one factor that aggra-
vates both administrators and large developers unable to es-
cape the provisions of the Law.

Farming and forestrv both pose their own environ-
mental dangers, while also aliowing development of roads and
other essentials of large lot subdivisions beyond the statu-
tory reach of the district commission. 25/ While the com-
mission may everitually require applications for some aspects,
it is more difficult for them to deal with established re-
liance interests.

A more general problem has been presented by the
five-mile-radius test which applies both for determining the
amount of acreage in a "development" and the number of lots
within a "subdivision." This test is difficult to apply in
Vermont, where no tax assessor's maps exist and it is im-
possible to locate property lines on any map. Thus it is
quite difficult to tell whether any particular lot can be
included within a five-mile radius from another lot. A
fair amount of administrative time has been spent advising
developers whether the five-mile radius requirement neces-
sitates their applying for a permit. 96/

Relationship Between Planning and Regulation

As a matter of draftsmanship, the Environmental
Control Law poses some problems in the planning area. There
are some technical problems and inadequacies in the judgment
process, but these agencies were able to initiate procedures
fairly smoothly shortly after passage of the Law. However,
if the creation of new agencies to handle broad planning
responsibilities has been one of the successes of the Law,
the failure to specify which plans were to enjoy priority is
one failure. The state land use plan, which is to provide
the cohesive force holding the district commissions and local
planners on a common policy course, faces a political jungle
before adoption- 97/

The distance between the planning process and the
Board was not foreseen in the Law itself. While the Board
still intends to develop policy positions, it now appears
that these will not be a part of the state plans. The dis-
trict commissions have no part in preparing the plans, al-
though they will have an opportunity to comment on them at
regional hearings. 98/

Planners at all levels of this process understand
the plans as flexible instruments. For them 'the plans are
tools for finding a development policy while isolating
various critical factors. These plans must necessarily
adapt to changing needs and technology while maintaining
continuity and regulating development. These people are
eager to see the state plans developed and implemented as
planning instruments. 99/

However, there is a tendency on the part of many
involved with the permit review process to see both the,
state and the regional plans as "Zoning." The plans carry
an augmented status as one of the judgment criteria before
the district commission. Both commission members and de-
velopers anticipate applying the land use-map in much the
same manner a zoning map would be used. Preoccupation with
these real zoning characteristics and their political impli-
cations before the legislature account for an elaborate pre-
paration and presentation procedure for the plans which is
not provided in the statute. The difference between planning
in its traditional sense and planning having the augmented
status provided by the Environmental Control Law accounts
for considerable friction in the permit review process and
for the deliberate pace at which the organization of state-
wide planning is proceeding. 100/

one indication of the direction compromise may take
comes from those involved in the judgment process who see the
application of the plans as somewhat discretionary and
suggest that a rule of substantial conformance may result. 101/
The promulgation of increasingly detailed rules by the en-
vironmental and other state boards may also take some pres-
sure off this aspect of the planning process.

Nevertheless, it is the prospect of state "zoning,
at least with respect to certain critical use categories,
that most excites advocates of the Environmental Control Law.
If channels of communication between state and local offi-
cials are opened sufficiently to support state plans de-
tailing areas of statewide interest to be protected, the

- 83

plans may survive as both the guide the district commissions
are looking toward and the development tool the planners
envision.

There is the further problem of increased de-
velopers' costs caused by the Environmental Control Law.
Estimates of direct costs of the Law vary and administrators
of the Law tend to discount any figures given by developers. 102/
However, some notion of the possibilities can be derived
from some developers' examples.

The Quechee Lakes Corporation, developing a 400-
unit recreational second-home area estimates expenditures of
$20,000-$30,000 a year for permit review applications and re-
lated costs. 103/ These costs are in addition to any pre-
paration for health subdivision applications and ordinary
"front-end" planning. They arise from various sources.

The ordinary application process accounts for the
bulk of the direct cost. Quechee Lakes has recently pro-
cessed three applications. The 'first two applications, one
for a dam creating a lake, and the other for a parking lot
in a flood plain were both accepted without substantial
objection. The third, manipulating a flood plain to create
� village green, met more substantial opposition. 124/ Until
� June ruling by the Board, all applications had to be accom-
panied by site plans on five-foot contours, and extensive
documentation. This is now relaxed slightly and in areas
where there will be no man-made change in the land, 20-foot
contours are permitted. 105/ Various special tests, de-
pending on the nature of the application, are also required.

The fact that separate applications were requi ead-
for all three is another source of administrative cost for a
developer. The Town of Hartford in which Quechee Lakes is
located, adopted planned subdivision zoning regulations al-
lowing blanket approval of the Quechee Lakesproject after
a total plan and construction criteria were presented at
open hearings. The district commission, however, requires
separate applications for each distinct phase of the develop-
ment. While the Quechee Lakes Corporation intends to attempt
to blanket application, current Board policy would not seem
to permit its acceptance. LO6/

Administrators of the Law are considering various
methods of simplifying application procedures. one sugges-
tion is the creation of an administrative post corresponding
to the role of Environmental Advisor. This administrator

would aid a developer in moving through all aspects of the
administrative process and help prevent duplication of ef-
fort and unnecessary delay. others suggest consolidating
the application using a standard form for all state agencies
and another for local agencies. Administrators hesitate at
a blanket approval of a development project before plans and
criteria for judgment are clearer. 107/

A developer may have contact with a variety of
unrelated jurisdictions policing the Law, including the
state Attorney General, local state's attorneys, other state
agencies, local commissions, etc. Dealing with them indi-
vidually, e.specially when the Law can apply to any man-made
change on the land, offers a large potential for conflicting
interpretations. Quechee Lakes has repeatedly had to defend
its actions from challenges by the local state's attorney.
These legal costs add to the direct costs of the applica-
tion.

overlapping jurisdictions among parties before
the district commission also increase costs to the developer.
Quechee Lakes is currently waiting out a one-year delay due
in part to conflicting density policies between the local
and regional planners. 108/ Since the project must conform
to both plans according to a current Attorney General's
ruling and there is no appeal to the Regional Planning Com-
mission, any adverse ruling must be settled by informal
negotiation or appeal to the Environmental Board. Unpre-
dictable delays of this nature pose the largest indirect
cost to a developer. The regional coordinator may also re-
fuse to accept an application unless the developer applies
to another state agency first, which can be yet another
source of unpredictable delay. Lq-9/

Sherburne Corporation, developers of a ski area
near Killington, Vermont, estimated that four to five men
were employed through the construction season preparing
tests and plans for permit review appli 'cations. Much of
this development is above 2500 feet where all new projects
must be approved by the district commission.

Generally, a large developer should find compliance
with the regulatory process proportionately less expensive
than the small developer whose small project would receive
more scrutiny and less advance planning. However, this
does not yet seem to be the case. To date there has been
a conscientious effort to scrutinize the large development
as carefully as the small one. 110/

- 85

Enforcement: Selective Examples of Administrative Action

The district commission offers wide flexibility,
and procedures in different districts tend to reflect
vaIrying local conditions. Generally, local and regional
planners are better organized in the southern and western
portions of the state and they participate in more sophisti-
cated adversary hearings at the district commission level.
In the northern and eastern parts of the state, district com-
missions operate with less support from local parties and
hearings are often more informal, pressing for voluntary
covenants to meet the requirements of the law. lll/

The more conventional activity of district commissions
consists of enforcement of local and regional planning stand-
ards, offering a broad look at the environmental impact, and
a check on technical compliance with state regulations through
the Agency 250 Review Committee. Thus the Chittenden Dis-
trict Commission has denied one developer a permit because
his 76-unit apartment complex would result in undue traffic
congestion, have an adverse effect on municipal services,
and result in possible continued erosion of an unstable
lakeside bank. 112/ This project had been approved by the
Burlington Planning Commission although the board of alder-
men opposed it. 113/

But the district commission is only one element con-
trolling development. A proposal for a 198-unit apartment
complex in Shelburne was approved by the district commission,
but successfully opposed by the local planning commission
and selectmen. In nearby Middlebury a proposal for a shopping
center on a 9.9 acre tract was subjected to extensive review
before the local planning commission, while exempt from dis-
trict commission review. The planning commission approval
with conditions was only an advisory opinion to local select-
men, however, while any district commission decision would
have been binding. 114/

In other areas with an active planning process
at the local or regional level some applications have re-
sulted in extensive findings of fact and conditions on the
development. The application of the Stratton Mountain Cor-
poration for an expansion of ski trails and lifts in the
Stratton-Winhall area resulted in an extensive documentary
file and detailed findings of fact regarding the burden that
this development would place upon the local communities. 115/
The permit was approved and conditions to prevent overtaxing
parking and sewage facilities in the recreational development

- 86

were enforced by requiring affidavits of compliance at six
month intervals until evidence of full compliance were pre-
sented. While this is themost extensive review of an appli-
cation to date for the Windham commission, it may be char-
acteristic of the capacity of commissions to deal with broad
developmental impact on multiple communities. Representatives
of both Stratton and Winhall and their respective planning
commissions appeared at the hearing as well as a regional
planner representing most local interests.

District commissions have also moved beyond these
more conventional conditional permits to begin to apply some
longer range policy guidelines in their decisions. The
Windham district commission is considering the impact of the
location of a suburban discount center on regional planning
goals for urban development in Brattleboro. 116/ While the
land use section of the Windham regional plan under which
the challenge is being brought is only a compilation of
policy statements that-have yet to be greatly elaborated,
the hearing of such evidence indicates consideration of
broader planning goals in the region. There have been pres-
sures on other district commissions to take similar account
of longer range planning goals and regulate indiscriminate
suburban sprawl. L17/

District commissions are also protecting certain
well-defined areas of statewide interest. The State Recrea-
tional Plan, a quasi-official plan released in 1967 and cur-
rently under revision, specified 1/2 mile scenic corridors
adjoining interstate and certain other Vermont highways. 118/
Using this as a partial basis for decision, the Chittenden
District Commission has denied Mobil Oil Co. permission to
build a service station near one exit. 1,.19/ other commissions
have placed special landscaping and screening requirements
on construction or expansion in this zone. 120/ The public
utility exemption poses one problem for this policy. At
Berlin, near Montpelier, the Green Mountain Power Corp.,
proposes a dual turbine oil generating facility within 1,800
feet of Interstate 89. The proposed installation will include
oil storage tanks 40 feet high, and since public utilities
are regulated by the Public Service Board, there is some ques-
tion as to whether the scenic corridor policy will beenforced. 121/

The Fuller case,.in which the owner of a mobile
home park was denied the right to expand in the zone surround-
ing an interstate highway, is before the state Supreme Court.
Although the statute limits the issues before the Supreme
Court to those considered at the Environmental Board hearing, LL2/
arguments concerning an unconstitutional taking of property

will undoubtedly be made in this case as well. However, since
the case will not involve state planning, the limits on that
process will remain unexplored.

The Environmental Board was to hear economic arguments
on appeal of a case in which a developer was denied permission
to drain and dredge a beaver pond--Ryder Pond--to create a re-
creational lake so he could sell lakefront lots. LL/ However,
the developer was persuaded to withdraw his appeal after it
became apparent that the cost of dredging the pond-@250,000 as
opposed to the @30,000 he had anticipated--would exceed the
added increment he hoped to receive from lakefront lots. I.L4/
Moreover, he was persuaded that selling a piece of "original
Vermont" would in itself have certain value, entirely aside
from the fine, preservationist approach that he, as an "old
Vermonter" would of course want to espouse. 112
.L5J

On a different tack, the Board brought enforcement
proceedings for violation of the law's provisions. On July 1,
1971, the developer of a proposed sport-recreation complex on
Steadman Mountain in Chuster County applied for the requisite
development permit. A hearing on the application was held on
August 5, and adjourned to enable the developer to produce addi-
tional information. Meanwhile, the chairman of the local regional
plan commission took aerial photographs of what the developer
claimed was routine logging operations on the proposed develop-
ment site. Coincidentally, the clearing corresponds precisely
with golf course fairways and greens, and ski trails, as depic-
ted by the development plan submitted with the developer's
application. A cease and desist order was served on the
developer by the Environmental Board, and at an Assurance of
Discovery Hearing in late September, the developer agreed to
stop all further cutting until his permit application is
decided. 126

The basic policy is not to deny an application before
the Board if a grant may be sufficiently conditioned to protect
the interests defined in the Law. These conditions may take
the form of voluntary covenants and may range to formal require-
ments which must be guaranteed by a performance bond from the
developer. Municipalities and state agencies do not enjoy any
special privileges beyond exemption from the fee charged other
developers. Permits denied are denied for essential incompati-
bility with Board rules and statutory criteria and are the
exception rather than the rule at present. 127/

452 - 329 072 - 7

Policy.Implementation Under the Environmental Control Law

The Environmental Control Law was pass ed in reac-
tion to specific development crises in the southern regions
of the state. While it has continued to function on a case-
by-case basis,,it is also intended to,implement longer range
planning goals.

The nature of the adversary proceedings in the
district commission depends greatly on the sophistication of
local parties to a hearing. one result of the Law ma y have
been the encouragement of zoning, since the Law does not
apply to.development under 10 acres in zoned towns. Simi-
larly, a strong impetus for town planning is the provision
making the town plan one binding criterion for permit issu-
ance. Furthermore, since local planning officials are manda-
tory parties, articulate town plans and planners may gain an
influential position in the decision process irrespective of
acreage requirements.

The continuing emphasis on local activity is con-
sistent with the thrust of state policy since the early
1960's, as well as Vermont's tradition of strong local govern-
ment. However, there are only 30 towns with a population
of over 2,500 people in Vermont, and those who oppose the
Environmental Control Law suggest that these are both the
towns who can best afford the,Law and least need it. This
rationale assumes that the Law has substantially reduced
economic development and that rural towns suffer most
Statistics on the number of permits sought and issued
(see Appendix A) neither substantiate nor deny this assertion
because it is impossible to determine the number of developers
discouraged by the Law. To protect the economic interests
of these rural areas, the Agency for Development and Com-
munity Affairs is actively pursuing development compatible
with Vermont and is doing so in conjunction with local and
regional planning efforts. 128/

As a result of its role as advocate for planned
development in Vermont the Development Agency may find its
policies in conflict with those of environmentalists at
both the state and local level. 129/- Its proposals for
site selection may cause it to work against other local or
state agencies for the sympathies of the district commission
the proposal must pass before.

overall, appreciation of the difficulties in imple-
mentation of this legislation by the governor and administra-
tors has worked to avoid whatever friction may have developed

89 -

as a result of policy differences. The Agency 250 Review
Committee offers one forum where all interested state agen-
cies may communicate with ease. The Environmental Board is
moving beyond this and has now initiated joint sessions
Vwith the Water Resources Board to review the rules applied
to pollution discharge permits. These efforts are apparently
intended to result in standards mutually acceptable by both
boards, and the discharge permit could then be adopted by
the Environmental Board as evidence of compliance with water
quality standards under the Environmental Control Law. 130/
If these joint meetings are successful, the Board will
probably continue these efforts to simplify the judgment
process and coordinate policy whenever possible at the state
level.

The Environmental Control Law has been part of a
massive holding action by the State of Vermont, opposing un-
planned random development until the state's policies and
priorities,could be revised to deal with the pressures. The
effort began with expanded local powers, and when pressure
continued to build 'without substantial local response, the
Environmental Control Law and various administrative rulings
such as the Health Department Subdivision Regulations re-
sulted. Since then, local district commissions have been
evaluating development according to quality standards sug-
gested by various state agencies on a case-by-case basis.
They have also applied some broader policies developed at
the local *and regional levels, and in some instances,
notably the interstate greenbelt, have enforced statewide
policies. However, this whole apparatus awaits the longer
range state plans to give it real direction.

The Law has spurred considerable private interest
in the state environmental control procedures. A Ford
Foundation project is playing an active part in generating
citizen participation in planning and is a significant factor
in the "informal" acceptance procedure the state plans will
go through before being presented formally to the Environ-
mental Board, the Governor and the state legislature, 131/
The state has also been able to call upon interested and
capable citizens for district and state posts that make
heavy demands on time with relatively low compensation.

Despite its problems, the administration of the
Law seems to be progressing well. The critical process,
however, is the preparation of state plans that can provide
both flexible guides for developers and standards for the
regulators. The presentation of these plans in 1973 will
provide the real test of Vermont's land regulatory system.

90 -

FOOTNOTES

l/ See, 1967, Act No. 334 (Adjourned Session), effective
March 23, 1968, referring to local and regional planning
and local zoning. See also, 24 V.S.A. ��4301-4492
(including Act No. 334), Municipal and Regional Plan-
ning and Development.

2/ These were enacted pursuant to specific enabling legis-
lation under 1967, Act No. 360 (Adjourned Session),
effective July 1, 1969, Vermont Administrative Proce-
dures Act. This Act gave a broad authority to state
agencies to adopt regulations within their statutory
area of competence through a relatively simple proce-
dure.

Interview with Senator Arthur Gibb, March 26, 1971.

4/ Time, September 26, 1969, at p. 50.

5/ This requirement was subsequently removed by amending
the Vermont Planning and Development Act to allow any
municipality to adopt subdivision regulations once a
transportation plan (not a comprehensive plan) had
been prepared. See,124 V.S.A. �4404(g) (Supp. 1970).

See, letter from the study commission to commissioner
of health contained in Appendix B of the Report of
the Governor's Commission on Environmental Control
(Vermont, January 19, 1970).

Department of Health Subdivision Regulations, issued
1968 and enforced by the Protection Division, Agency
of Environmental Conservation.

Report of Governor's Commission on Environmental
Control, supra note 6, at p. 2.

9/ Act No. 250 of the Vermont General Assembly, 1970
Adjourned Session; 10 V.S.A. ��6001-6091 (Supp. 1970).
(Hereinafter referred to as Act 250.)

10/ Elizabeth H. Haskell, "Managing the Environment: Nine
States Look for the Answer," published in April, 1971,
at p. 293, et seq.

ll/ Water Pollution--Act No. 252 (Called the "pay as you
pollute" bill. Its implementation has been delayed
one year.); shoreland and flood'plain zoning--Act

No. 281; mobile home parks--Act No. 291; also Act No.
273 concerning pesticides; Act No. 287 concerning air
pollution; and Act No. 278 regulating land sales.
These were all adopted by the 1970 adjourned session
of the legislature. See, Marshall, "The Efficacy of
Vermont's Act 250," unpublished senior thesis, Dart-
mouth College, May 19, 1971, for a comprehensive history
of the Act.

12/ Act 250, �7;. 10 V.S.A. �6081(b)

13/ Act 250, �2; 10 V.S.A. �6001(3). The 2500-foot test
was not adopted arbitrarily, but resulted from an
analysis of the ecology of mountain areas carried on
for the Governor's study commission. See Appendix C
of the Report, supra note 6.

14/ Interview with James Jeffords, Vermont Attorney General,
Montpelier, March 26, 1971.

15/ Interview with Senator Arthur Gibb, March 26, 1971.

16/ While the application of Vermont Yankee Power Company
for a permit to construct a nuclear power plant in
Vernon, Vermont, is beyond the jurisdiction of Act 250,
conservationists have mounted an intense effort before
the Public Service Board, and the Federal A.E.C. to
ensure low discharge temperatures and other protective
measures. Interview with Harvey Carter, Counsel for
the Southern Vermont Conservation Society, July 16,
1971. An application has also been filed by Green
Mountain Power Corporation for a power plant within
1,000 feet of Interstate 89 at Berlin. The plant will
include 40-foot oil storage tanks where fuel for the
gas turbines will be stored. Approval would be an
apparent contradiction of the Environmental Board's
policy of a one-half mile scenic corridor on each side
of the Interstate. See Burlington Free Press, August 4,
1971, p. 3, at 2; August 5, 1971, p. 14, at 1; August 18,
1971, P. 4, at 1. See, general 'ly, John Walsh, "Vermont:
Forced to Figure in Big Power Picture," 174 SCIENCE 44
(October 1, 1971).

17/ With certain exceptions not affecting the Board, the
Agency may transfer staff and funds freely between
units of the Agency. Interview with Robert Babcock,
Jr., Secretary, State Environmental Board, May 5, 1971.

18/ Act 250, �31; 10 V.S.A. �6028. They are compensated
only for time spent in hearings.

L91/ Act 250, �3; 10 V.S.A.. �6021 (a)
20/ Act 250, �5; 10 V.S.A. �6026(b).

.Zi/ Interviews with Brian Lloyd, Richmond District Coordi-
nator, July 13, 1971, and Peter Zilliacus, Chairman of
the District commission, July 15, 1971.

.Z2/ A 1971 law dealing with general regional reorganization
reduced the number of districts from nine to seven, but
did not affect the functions of the commissions. Inter-
view with Robert Babcock, Jr., May 5, 1971.

23/ Act 250, �2; 10 V.S.A. �6001(3).

24/ John Walsh, "Vermont! A Small State Faces Up to a
Dilemma over Development," 173 SCIENCE 896 (September 3,
1971).

25/ Act 250, �6; 10 V.S.A. �6081(a).

26/ Act 250, �2(9); 10 V..S.A. �6001(9).

17/ Act 250, �30; 32 V.S.A. �3378 (Supp. 1970). Any town
clerk who records a deed without such a certificate
must be fined $50.00 for the first such offense and
$100.00 for each subsequent offense.

.ZB/ Act 250, �28; 10 V.S.A. �6003.

19/ Much of the initial success of the district commission
process has been attributed to the regional coordina-
tors who bore the initial organizational load. Inter-
view with Robert Babcock, Jr., March 26, 1971.

..@O/ Act 250, �9; 10 V.S.A. �6094. Interview with Kenneth
Senecal, Regional Coordinator, Windham District Com-
mission, July 14, 1971.

31/ Since applicants often remain uninformed, the regional
coordinator may request improper applications to be
redrawn by the applicant. Interview with Kenneth
Senecal, July 14, 1971.

12/ Vermont Environmental Board, Rules and Regulations,
June 1, 1970, Rube 3 (b) .

@3/ Act 250, �9; 10 V.S.A. �6084(b). Interview with
Kenneth Senecal, July 14, 1971.

- 93 -

34/ Act 250, �11, 10 V.S.A. �6085(d).

35/ Interview with Benjamin Partridge, Chairman, Vermont
Environmental Board, July 14, 1971.

36/ Act 250 requires a hearing within 40 days of receipt
of application. Provisions for notice to parties sets
a 15-20 day minimum processing period. Act 250, �10;
10 V.S.A. �6085. Applications currently are being
processed at or near the minimum time sequence allowed.
See Appendix A for related statistics.

@.,,17 Act 25D, �25; 10 V.S.A. �6027.

38/ Interview with Peter Zilliacus, July 15, 1971.

39/ Act 250, �4; 10 V.S.A. �6024.

jO/ Interview with Schuyler Jackson, Esquire, Agency of
Environmental Conservation, May 5, 1971.

41/ Id.

42/ A similar agency position paper will also be prepared
for hearings on any appeal before the Environmental
Board.

43/ Interview with Schuyler Jackson, May 5, i971.

44/ Interview with Charles-Wiley, Agency of Development
and Community Affairs, July 9, 1971.

Interview with Brian Lloyd, July 13, 1971. The purpose
of the Regional Planning Commission was initially to
supplement and aid local planning efforts. This has
been implemented with varying success. See, Report to
the Governor of Vermont, Governor's Economic Develop-
ment Coordinating Committee, February, 1971.

46/ Interview with John Davidson, Chairman, Quechee Lakes
Corporation, July 15, 1971. The decision is dated
October 19, 1970, Opinion No. 609.

47/ Interview with Robert Babcock, Jr., July 8, 1971;
interview with Ellen Reese, Local Project Coordinator
for the Dover Wilmington Ecological Planning Study,
July 14, 1971.

48/ Interview with Kenneth Senecal, July 14, 1971-

49/ Interview with Robert Babcock, Jr., May 5, 1971.
Hearings can generate substantial documentation of
applications. For the Stratton Mountain application
the District Commission made its decision based on
reels of taped testimony and a large volume of docu-
mentary evidence. Interview with Peter Zilliacus,
July 15, 1971.

50/ Act 250, �12(a); 10 V.S.A. �6086(a).

.112 Act 250, �13; 10 V.S.A. �6088.

52/ Act 250, �12(c); 10 V.S.A. �6086(c).

53/ Act 250 refers to the powers enumerated in the Munici-
pal and Regional Planning and Development section of
the Vermont Statutes. See note 1, supra. Specifically,
24 V.S.A. ��4407(4), (8) and (9), 4411(a)(2), 4415,
4416 and 4417.

54/ Rule 8(c), Rules and Regulations of Environmental
Board, supra note 32.

55/ Rules and Regulations of the Environmental Board,
Appendix A--Power and Communication Lines and Facili-
ties: Permit Requirements, June 16, 1971.

56/ Interview with Benjamin Partridge, July 14, 1971.

57/ Vermont Environmental Board, Statistics on Act 250
Applications (October 1, 1970 through July 1, 1971).
These statistics have summaries of major decisions
appended to them.

58/ While this may govern who has the capacity torappeal,
other parties may appear at appeal hearings. At
least this is true in the Ryder Pond case. See note
48, supra.

59/ Act 250, �14; 10 V.S.A. �6089.

60/ Act 250, �27; 10 V.S.A. �6082, makes this explicit.

61/ Act 250, �25(e); 10 V.S.A. �6027(e) allows the Board
to set up joint hearings with other agencies by rule.
Act 250, �12(d); 10 V.S.A. �6086(d) also allows the
acceptance of the approval of other state agencies in
lieu of evidence for some �12 criteria if the Board
approves such a rule. See Appendix B for a partial
listing of permits a developer may have to obtain from
other state agencies.

62/ Interview with Benjamin Partridge, July 14, 1971. See
also Burlington Free Press, August 12, 1971, p. 3, at
4. The Environmental Board is meeting with the Water
Resources Board to clarify the regulation of the Water
Resources Board with a view toward eventually accept-
ing its discharge permit as an indication that an appli-
cation for development is sound in this respect.

63/ Act 250, ��18, 19 and 20; 10 V.S.A. ��6041, 6042 and
6043. The three plans are sometimes referred to as
the section 18, 19 and 20 plans, respectively.

Act 250, �12(a)(9); 10 V.S.A. �6086(a)(9).

L5/ "Preparation and Implementation of Plans Under Act
250," State Planning Office, July, 1971, at p. I
(hereinafter cited as State Planning Report).

66/ Act 250, �18; 10 V.S.A. �6041.

L7
State Planning Report, at p. 2.

68/ "Vermont Interim Land Capability Plan," prepared by
the Vermont State Planning office, June, 1971.

69/ Id., at pp. 3-5.

70/ id., at p. 17.

71/ "An Analysis of Social and Economic Characteristics of
Vermont," prepared by the Vermont State Planning Office,
June, 1971.

72/ Letter of September 24, 1971, from Bernard Johnson,
Assistant Planning Director, State of Vermont.

73/ Interview with Schuyler Jackson, September 10, 1971.

74/ Interview with Robert Babcock, Jr., September 10, 1971.

75/ Act 250, �19; 10 V.S.A. �6042.

76/ Id. I

77/ State Planning Report, at pp. 7-8.

78/ Interview with Mr. Jan Wells, State Planning office,
July 8, 1971.

- 96

79/ Act 250, ��21, 22, 23; 10 V.S.A. ��6044, 6045 and 6046.

80/ Act 250, �20; 10 V.S.A. �6043.

81/ Interview with Bernard Johnson, July 7, 1971.

82/ Id.

83/ Act 250, �18; 10 V. S.A. �6081 (b)

84/ It also places some of the support effort for the plan-
ning process in a difficult funding position since
original projects were made on a 1972 completion
date. The Ford Foundation project of the Vermont
Natural Resources Council providing for citizen parti-
cipation in planning was originally established with
a July, 1972 target date for the plan. The planning
staff under Arthur R. Merkle still intends to have as
much of the planning done by the 1972 target date as
is possible. Much of the additional time is necessary
for a comprehensive review process to get the plans
before the people. Interview with Bernard Johnson,
July 7, 1971; interview with Arthur Ristau, former
state planner, currently running Ford Foundation Study
of state planning process, July 7. 1971;.interview
with Jan Wells, July 8, 1971.

85/ State Planning Report, at p, 1.

86/ See, Rutland Herald, June 25, 1971, p. 20, at 1, which
includes a list of the districts and local chairmen.

87/ Act 250,*�31; 10 V.S.A. �6027(c).

88/ See text at note 108, infra.

89/ Act 25,0, �24; 10 V.S.A. �6047.

90/ Id.

91/ Id.

92/ Vermont Health Regulations, �5-902.

93/ Interview with Brian Lloyd, July 13, 1971. Application
No. 300005, Green Mountain Meadows, for a 27-unit de-
velopment was asked to present evidence on the impact
of the entire 400-home development at the initial
application hearing before a permit was'granted.

- 97

24/ Application No. 700001, Haynes Bros., Inc. commonly
referred to as the Ryder*Pond Case is also interesting
because of the issues being raised on appeal. See
text at note 123, infra.

95/ Act 250 does provide some protection against fraudulent
behavior. Section 6 (10 V.S.A. �6081(a)) implies a
sale or transfer of property is void if no permit has
been issued and the sale or transfer "is accomplished
to circumvent the purposes of this chapter." However,
this only applies to "subdivision" lots, which in a
strict sense would exclude the subdivision with 10+
acre lots or other statutory exceptions unless common
fraud could be demonstrated.

96/ Interview with Robert Babcock, Jr., July 8, 1971.

97/ Interview with Jonathan Brownell, Esquire, July 8, 1971.

98/ Interview with Benjamin Partridge, July 14, 1971.

99/ Interviews with Philip Hoff, Esquire, Jan Wells, Brian
Lloyd, Jonathan Brownell, July, 1971.

100/ Interview with Jonathan Brownell, July 8, 1971; inter-
view with Arthur Ristau, July 7, 1971.

101/ 10 V.S.A. �6086(a)(9) requires "conformance" with a
duly adopted plan.

102/ E;9., interview with Peter Zilliacus, July 15, 1971.

103/ Interview with John Davidson, July 14, 1971.

104/ Rutland Herald, July 9, 1971, p. 17, at 1.

105/ Rules and Regulations of the Environmental Board,
Rule 6(d)(1) as revised June 16, 1971.

106/ Interview with Benjamin Partridge, July 14, 1971.

L07/ Id.

108/ Interview with John Davidson, July 15, 1971.

109/ See note 31, supra.

110/ Inevitably some large developers with a coherent
package to offer are scrutinized less carefully. An

example may be IBM Corporation, expanding near
Burlington, Vermont. Interview with Brian Lloyd,
July 13, 1971. However, the district commissions
have gone so far as to request financial data on
applications as part of the profile of the develop-
ment.

lll/ Letter from Robert Babcock, Jr., August 4, 1971.

112/ Application No. 300025, J. Paul Presault, Burlington,
Vermont.

113/ Adjoining property owners were not allowed to appear
in opposition on appeal. Burlington Free Press,
August 12, 1971, p. 2,1, at 7.

114/ Burlington Free Press, August 18, 1971, p. 4, at 1.

115/ See Decision of July 8, 1971, District Environmental
Commission II. The decision includes 13 pages of
findings and conclusions including details on sewage
treatment; traffic control; local taxation including
highway and school funds and their sources; and
zoning.

116/ Interview with Kenneth Senecal, July 14, 1971. The
regional plan sets out several general objectives for
development such as revitalization of urban centers.
These have been the basis for the challenge. other
area planners have been criticized for failing to make
this same effort while more comprehensive land use
maps are being prepared. See, Burlington Free Press,
July 10, 1971, p. 8, at 3 (Middlebury criticized for
not attempting to curtail "suburban" shopping develop-
ment).

117/ Burlington Free Press, July 10, 1971, p. 8, at 3.
Middlebury criticized for failure to attempt to cur-
tail "suburban" shopping development.

118/ The Comprehensive Plan for outdoor Recreation in Ver-
mont, 1967. At p.,39, this plan calls for the protec-
tion of scenic roads and trails. The Interstate
system and certain othe -r primary roads are designated
for "greenbelts" one-mile wide on a state map. There
is a suggestion that certain other roads also be pro-
tected. This plan is currently under revision in the
Agency of Environmental Conservation.

- 99

119/ Application No. 300008.

120/ Application No. 300013, Ward A. Fuller. Mr. Fuller
received a cease and desist order to stop bulldozing
to expand a trailer site. Ultimately, application
for a permit was denied and the case is now on appeal
before the Vermont Supreme Court. Interview with
Robert Babcock, Jr., May 5, 1971.

121/ Burlington Free Press, August 18, 1971, p. 4, at 1.

122/ Act 250, �14; 10 V.S.A. �6089(c) .

123/ Application No. 700001, Haynes Bros., Inc.

124/ Interview with Robert Babcock, Jr., September 10, 1971.

125/ Interview with Schuyler Jackson, September 10, 1971.

126/ Interviews with Robert Babcock, Jr. and Schuyler Jack-
son, September 10, 1971; telephone conversation with
Schuyler Jackson, November 2, 1971.

127/ of 326 applications, only 11 were denied in the first
year. See Appendix A, Statistics.

128/ See, Report of Economic Development Coordinating
Committee, supra note 45, at p. 5.

129/ The Town of Milton found that a body of water proposed
as a prime water supply in its planning e'fforts was
the discharge point for effluent [?] from a whey [?]
processing plant proposed by the Development Agency.

130/ 'Burlington Free Press, August 12, 1971, p. 3, at 4.

131/ Interview with Arthur Ristau, July 7, 1971.

100

APPENDIX A:

Statistics on Act 250 Operations;

State Permits Required for Development in Vermont

State of Vermont lol

AGENCY OF ENVIRONMENTAL CONSERVATION
Montpelier, Vermont 05602
Department of FiSh and Game ENVIRONMENTAL BOARD
Department if Forests and Parks
Department of Water Resource
Environmental Board
Division of Environmental Protection
Division of Rcreation
Interency Committee on Natural Resources
Natural Resource Conservation Council

STATISTICS ON ACT 250 APPLICATIONS
AS OF JUNE 1, 1971

Total number of applications-326

Total number of applications in May--50

Total number acted upon--235

Total number acted upon in May-31

Appeals to the Board--9 (6 decisions, 2 pending,
I withdrawn),

Applications pending action-91

Applications'withdrawn--9

Applications denied--1l

Total number of development applications-286

Total number of subdivision applications-40

Average time in handling applications-36 days
rdate of receipt; date of decision]
Total number of fees collected--$49,021.80

Total number of applications in District 1-52
District 2--68
District 3--28
District 4-13
District 5--46
District 6--27
District 7--34
District 8--24
District 9--33

AGENCY OF ENVIRONMENTAL CONSERVATION
Montpelier, Vermont 05602
Department of Fish and Game 102 - ENVIRONMENTAL BOARD
Dcpartment of Forests and Parks
Department of Water Resourcs
Environmental Board
Division of Environmental Protection
Division of Recreation
Interagency Committee on Natural Resources
Natural Resource Conservation Council

BREAKDOWN ON 250 APPLICATIONS

June 2, 1971

TYPE OF OPERATION NUMBER TYPE OF OPERATION NUMBER

Subdivisions 43 Swimming and recreation 31
Transmission lines & facilities 7 Additions to existing structures 19
Nursing homes: new starts 7 Water mains 2
additions 2 Cultural 3
Trailer parks 7 Churches 2
Camping & tRailer areas 19 Junk yards 1
General commercial establishments 29 Sewer 5
Commiunications masts 4 Timbering above 2,500 feet 3
Hospitals 4 Industrial 11
Filling & clearing 12 Research 2
Prisons I Schools 14
Flood control 2 Water pollution control 2
Sanitary landfills 6 Gasoline service stations 8
Shopping centers 7 Roads 19
Motels, apartments, cooperatives, 26 Borrow and quarrying 19
and condominiums mining 1
Municipal buildings 1 Stump dumps 1

TOTAL 320

STATE AGENCY BREAKDOWN

Department Number

Forests and Parks 17
Fish and Game 2
Highway 3
Public Safety 5
State Buildings Division 1
(Windsor Prison)
Vermont Aeronautics Board 1
Water Resources 1

(This count has already been included in
the grand total above.)

103

APPENDIX B:

PARTIAL LIST OF STATE PERMITS RELATIVE

TO LAND USE OR ANY OTHER AREAS

OF ENVIRONMENTAL CONCERN

452 - 329 0 72 8

104

LIST OF STATE PERMlTS RELATIVE TO LAND USE
OR ANY OTHER AREAS OF ENVIRONMENTAL CONCERN

AGENCY OF DEVELOPMENT AND COMMUNITY AFFAIRS
Montpelier, Vermont 05602

A. Billboard Law. 10 VSA, Chanter 14, �321-3-45, governs outdoor
advertising.

DEPARTMENT OF AGRICULTURE
Montpelier, Vermont 05602

A. Approval and licensing of slaughter houses, rendering plants,
and other establishments that handle meat or meat products.

B. Licensing of milk dealers--facility construction plans for
plants which receive and process milk or which manufacture
dairy products are also reviewed for approval by this Depart-
ment.

C. Pesticide Control--6 VSA, Chapter'87 (and regulations)--licenses
dealers, operators (those in business of contracting as appli-
cators), and applicators, and issues special permits for the
use of restricted pesticides (Division of Plant Pest Control).

DEPARTMENT OF EDUCATION
Director of School Administrative Services, Montpelier, Vermont 05602

A. Authorization of building or improvements in school districts
throughout the State. Title 16, 3448, 3457.

DEPARTMENT OF FORESTS AND PARKS
Agency of Environmental Conservation, Montpelier, Vermont 05602

A. Brush burning permits--issued by town fire wardens, 10 VSA,
1495

B. Sawmill license--only one in State

C. Special use permits: permits issued to anyone who uses State
forest and park land, e.g. six month right-of-way for logging.
Lease right-of-way to utility companies. Permits start with
district forester.

DEPARTMENT OF HEALTH
Environmental Health Division, 115 Colchester Avenue, Burlington, Vermont
05401

105

A. Public Water Systems (ten or more services) . All proposed water
systems or modifications must be reviewed and approved by the
Division of Environmental Health.

B, Licenses

1. rood and lodging, bakeries, chilren's camps. (Plans
submitted to Division of Environmental Protection,
Agency of Environmental Conservation, montpelier, Vermont.)
a. Regular inspections conducted by sanitarians
from the Vermont Department of Health.

2. Nursing homes, hospitals, and homes for the aged. (Plans
for construction submitted to the Medical Facilities
Division).

DEPARTMENT Or HIGHWAYS
Montpelier, Vermont 05602

A. Permit: required for any construction in the highway right-of-
way (utility facilities, access drives, etc.)

B. Any change of topography affecting highway drainage.

C. Zoning permit for development of land within 500 feet of the
intersection of any entrance or exit ramp providing access to
any limited access highway.

D. License to operate a junk yard or automobile grave yard--24 VSA,
2241 -2283--outdoor storage of junk and/or three or more junk
vehicles. (Roadside Development Division).

DEPARTMENT Or LABOR AND INDUSTRY
Montpelier, Vermont 05602

A. Electrical inspection: any "complex structure" (see 10 VSA,
881 (3) must be inspected and approved by the Labor and Industry
commissioner or an inspector beforebeing put into use.,

DEPARTMENT OF PUBLIC SAFETY
Fire Protection Division (Fire Marshal), Redstone Building, Montpelier,
Vermont 05602

A. License: for fire alarm system installers and lightning rod
installers--rnened yearly.

B. Letter of approval: for all public buildings (all buildings
except single family residences). Drawing approval and inspcc-
tion.

C. Approval: if county, State, or federal funds are used, facili-
ties must be provided for handicapped in public buildings.

106 -
D. Approval: plans for storage of flammable liquids (gas stations,
etc.)

DEPARTMENT OF WATER RESOURCES
Agency of Environmental Conservation, Montpelier, Vermont 05602

A. Pollution control

1. After July 1, 1971 a discharge permit or pollution permit
will be needed for any direct or indirect discharge into
the waters of Vermont.

B. Planning and development

1. Permits:

a. Dams. New construction or renovation. 10 VSA,
Chapter 29, 500,000 cubic feet of water impounded.

b. Streams--redirecting, ten sqauare mile drainage
area and use. 10 VSA, Chapter 28, Subchapter 2.

c. Lakes-29 VSA, Chapter 11. Altering beds of
lakes, ponds, etc. under public waters.

2. License:

a. Well drillers license

DISTRICT ENVIRONMENTAL COMMISSIONS AND ENVIRONMENTAL BOARD--ACT 250
Agency of Environmental Conservation, Montpelier, Vermont 05602

A. Subdivision permits

1. Ten or more lots of less than ten acres each

B. Development permits

Construction of improvements for:

I. Commercial or industrial purposes on more than one acre
in a municipality without permanent zoning and subdivi-
sion regulations.

2. Commercial or industrial purposes on more than ten acres.

3. Commercial, industrial, residential purposes on land
over 2,500 feet in elevation.
4. Housing projects of ten or more units.

5. Municipal or State projects on more than ten acres.

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DIVISION OF ENVIRONMENTAL PROTECTION
Agency Of Environmental Conservation, Montpelier, Vermont 05602

A. Subdivision permits--Vermont Health Regulations, Chapter 5.
Three or more lots, ten acres or less each.

B. Mobile Nome Park Permit--Act 291. Two or more mobile homes on
a plot.

C. Public Building Permit
Plan approval on all buildings except single family residences,
dupl.cx with separate water and sewage, condominiums, unoccupied
warehouses, and farm buildings.

D. Sanitary Landfill Permit. 24 VSA 2201 et, seq,

E. Emission into atmosphcre. 10 VSA, Chapter 15. Required stan-
dard, after fact enforcemcnt.

F. Travel trailer and tenting area. Board of Health Reguluations.

PUBLIC SERVICE BOARD
7 School Street, Montpelier, Vermont 05602

A. Certificate of Public Good--30 VSA, Section 248--certificate
from Public Service Board needed for construction of electric
generation facilities or transmission lines designed for opera-
tion over 48 KV.

B. Approval--lo VSA, 701 et. seq.--for construction or remodelling
of any dam related to hydroelectric power.

C. Certificate of Public Good--30 VSA, Section 102--for the organ-
ization of any now public utility corporation.

D. Certificate of Public Good--30 vsA, Section 231--for the opera-
tion of any public utility business by a person, partnership
or unincorporated association.

VERMONT AERONAUTICS BOARD
Montpelier, Vermont 05602

A. Letter of approval for all airports or private landing strips
and navigational facilities. Title 5.

- 108

SAN FRANCISCO BAY CONSERVATION AND
DEVELOPMENT COMMISSION

In 1965 the California legislature created the
San Francisco Bay Conservation and Development Commission
and authorized it to prepare a plan for the future develop-
ment of San Francisco Bay. The Commission completed the
plan in 1969 and submitted it to the legislature. The legis-
lature thereupon adopted the plan and gave the Commission
the power to implement it by requiring permits from anyone
seeking to develop in the Bay or along its shorelines.

The Concern over the Filling of the Bay

In the early 1960's public attention began to be
drawn to the rate at which San Francisco Bay had been filled
and was continuing to be filled by developers for a wide
variety of uses, the new communities of Foster City and Red-,
wood Shore being especially noticeable examples. A variety
of citizen groups became disturbed about potential effects
of continued filling and diking, now estimated to have re-
moved over 240 square miles from the Bay. I/

A report on "The Future of San Francisco Bay,"
written in 1963 by Mel Scott for the Institute of Govern-
mental Studies at the University of California, was of parti-
cular significance in calling attention to the problem. This
and other studies pointed out that a large portion of the
Bay was very shallow and so easily capable of being filled
that at some point in the future the,Bay might be reduced to
a river. This picturesque prediction of a "San Francisco
River" captured the public's imagination and spurred further
efforts toward conservation of the Bay.

Two recent articles have described the public rela-
tions work behind the successful drive for passage of the Bay
Commission legislation, which need not be repeated in detail
here. 2/ Basically, success resulted from energetic and
determ-ined efforts by an informal coalition of existing con-
servation groups and a variety of citizen organizations
created specifically to "Save the Bay." They began by per-
suading the legislature to create a study commission, then
expand it to a planning commission and finally to a regula-
tory commission. The coalition supported each step by
effective campaigns for public endorsement, and the tre-
mendous outpouring of public support was undoubtedly the
key element in obtaining passage of the legislation.

109

The success of this drive was so complete that the
Commission in a few short years has become almost untouch-
able politically. Even its strongest enemies feel obliged
to swipe at its flanks rather than attack it directly. The
overwhelming public support for the Commission probably can
be credited to the great "imageability",of San Francisco Bay.
The fact that the Bay is seen so frequently by so many people
made it easy for the average person to visualize its reduc-
tion to a "river" and imagine the effect that this would
have on the community.

The excellence of the San Francisco Bay Plan pre-
pared by the Commission in 1969 also influenced the legis-
lature's willingness to give the Bay Commission permanent
regulatory powers. 3/ The Plan is a model of organization
and readability thaC, unlike most such plans, can be read
by the average legislator with interest and enjoyment. By
focusing on the Bay and its immediate shoreline the Bay
planners kept the issues easily comprehensible by the pub-
lic, and avoided having public interest lost in the extreme
complexity and interrelatedness of regional planning problems.

. Finally, the Plan attracted broad.support by offer-
ing a well-reasoned program that balanced both development
and conservation. The purposes of the Commission reflect,
as the name denotes, a combination of "conservation and de-
velopment" interests--a combination that in this case seems
unusually compatible. operators of water-oriented industrial
uses share with conservationists the need to see the Bay re-
main an open and relatively unpolluted body of water. Their
interests combined to.overcome the opposition of the owners
of bayshore and underwater land who saw the potential of
significant profits from filling and developing large por-
tions of the Bay for residential and commercial use, and
the opposition of some of the local governments which sought
to encourage such developments.

The Powers of the_Bay commission

The basic purpose of the commission is to insure
that the filling and development of the Bay does not destroy
its essential value for water-oriented uses (e.g., ports,
power plants and airports) or its function as a recreational
area, as a breeding ground for fish and wildlife, or as a
beneficial influence on the climate and livability of the
San Francisco area.

110 -

The Bay Commission has been designed to operate in
a relatively simple and straight-forward manner. The legis-
lation incorporated the Commission's San Francisco Bay Plan
as a basic standard for regulation, established a line of
jurisdiction for the Commission around the edge of the Bay,
and required all owners of property within the Commission's
jurisdiction to obtain a permit for any filling or construc-
tion. 4/ The Commission is to issue a permit only if the
project is consistent with the San Francisco Bay Plan and
the principles set forth in the statute.

The boundary line of the Commission's jurisdiction
was a subject of considerable controversy. The Plan had
shown that development which occurred far inland from the
water's edge often had serious adverse effect on the Bay.
The Commission and its supporters had asked for jurisdiction
over the land extending back from the water's edge for a
considerable distance. 5/ The opponents, particularly the
municipal governments in the Bay area, strongly opposed
giving the Commission any controls over land that was not
submerged. A compromise was reached under which the Com-
mission has jurisdiction over an area 100 feet back from
the main shoreline of the Bay and also over certain wet-
lands, creeks and diked areas adjoining the Bay. �/

Throughout most of its jurisdiction the Commission
is empowered to grant a permit if it "finds and declares,
that the project is either (1) necessary to the health,
safety or welfare of the public,in the entire Bay area, or
(2) of such a nature that it will be consistent with the
provisions of this title and with the provisions of the San
Francisco Bay Plan then in effect," 7/ but applications for
projects on the shoreline band not involving fill and not
related to existing water-oriented priority land uses may 2;
be denied "only on the grounds that the project fails to
provide maximum feasible public access, consistent with the
proposed project, to the Bay and its shoreline." 8/ The
statute also authorizes the Commission to attach conditions
and restrictions to any permits issued. 9/

Applicants for permits must first file an applica-
tion with the city or county for any permits that might be
required by those bodies. 10/ The city or county, through
its appropriate agency, is then required to file a report
with the Commission commenting on the proposal and indi-
cating whether or not the proposal has been approved. ll/

All state and local governmental agencies must
obtain a permit, as well as private builders. 12/ Moreover,

the Commission has entered into a memorandum of understand-
ing under which the Army Corps of Engineers has stated that
all of its proposals will be in accordance with the provi-
sions of state law and the San Francisco Bay Plan. 13/ Un-
like most local plans, therefore, the San Francisco Bay Plan
is not subject to being overridden by the actions of the
State Highway Department or Division of Waterways. 14/

In addition to its permit-issuing power, the
Commission is directed by the statute to engage in a con-
tinuing process of planning, to prepare annual reports and
to revise the Plan from time to time as may be necessary. 15/

Current Operations of the BaV Commission

The Commission has adopted detailed administrative
regulations setting forth the procedures by which applicants
for permits may present their applications to the Commission. .16
The commissioners--27 of them--meet every two weeks to act
on these applications. 17/ From the beginning of the Com-
mission's primary regul@@_ting jurisdiction on November 10,
1969 through the end of 1970 the Commission processed 13
major permit applications, granting 12 and denying one. 18/
In addition, 66 minor permits were granted by the.staff. 19/

As a result of this activity, developers, architects
and planners in the Bay area are becoming increasingly aware
of the Commission's existence and of the need to consult with
the Commission's staff at early stages in the preparation of
plans for development along the Bay. The staff feels that
preliminary conferences with developers have frequently
avoided the possibility of applications that would have been
inconsistent with the Plan, and have helped developers direct
their projects in ways that would further the goals of the
Plan. 20/ The Commission has followed the staff's recom-
mendations in most important cases; if there has been any
divergence between staff and commission, it is the Commission
that has taken the stronger view in favor of conservation. 21/

The Commission's large size led to predictions
that it would not function smoothly, but at least in the
opinion of the staff, the Commission performs its functions
very well. _.@L2/ The Commissioners seem to take a truly re-
gional point of view and do not engage in petty logrolling
designed to promote their particular local jurisdictions. 23/
But while conservation groups in the area continue to mani-
fest support for the implementation of the San Francisco Bay
Plan, a number of those groups are growing disenchanted with

- 112

what they characterize as a series of "recent pro-development
actions,." 24/

The Commission's chairman has provided excellent
leadership and the hard-working members, most of whom are
appointed by state and local governmental agencies with
interests in the Bay area, 25/ have provided some liaison
with the governmental agencies together with an avenue to
explain the actions of the Commission to towns, agencies
and interest groups in the Bay area. 26/ This liaison has
not always been what it could be, however, according to
Rudy Platzak, Planning Director, Association of Bay Area
Governments (ABAG). He contends that the failure of the
Commission to develop local, regional and public ties is
one of its principal weaknesses. According to Platzek,
the Commission thereby loses the benefit of planning expert-
ise which local governmental units would be willing to pro-
vide for the Commission. Serious misunderstandings with
municipal planning departments (such as that of San Fran-
cisco) often develop as a result. 27/ Moreover, the Com-
mission appears to have very little contact with other
state or regional planning agencies. The Commission staff
says there has been some sharing of information with the
Association of Bay Area Governments, 28/ but the regional
plan approved by the Association last year 29/ bears little
evidence that it was influenced by the San T-rancisco Bay
Plan prepared by the Commission only a year before. The
Association's plan omits any significant mention of the
Bay Commission, and rarely even mentions the Bay itself.
The Association of Bay Area Governments apparently considers
the Commission a rival for public attention, and relations
between the two agencies have been correct but chilly. LOV

The legislature has financed the operations of the
Commission out of general revenues with sufficient generosity
to avoid serious problems of administration. The Commission's
heavy responsibilities for enforcement--not only must the
Commission discover and prosecute unauthorized filling and
construction but it must police the extensive conditions and
restrictions it attaches to the permits that it issues--had
presented problems, 31/ but recently additional staff has
been assigned enforcement responsibilities. 32/

The operation of the Commission can best be
understood by looking in more detail at three controversies
that have occupied a substantial share of the Commission's
attention:

113

The Oakland Fill Flap

Just prior to September 17,1965 (from which time
the Commission dates its legal existence) the City of Oak-
land commenced filling a portion of San Leandro Bay for the
purpose of constructing a parking and storage yard for city
vehicles on a 30-acre site for the City of Oakland, in ac-
cordance with a plan previously drawn for that purpose. 33/
According to the Commission's staff, Oakland was advised
of the probable illegality of the fill in 1966. 34/ However,
nothing further was forthcoming from the Commission until
the nearly-completed diking and filling of 5.9 acres in the
Bay was brought to the attention of the Commission's staff
director in September of 1970. 35/ Shortly thereafter, the
Commission received an application from Oakland for the
filling of an additional 3.5 acres of the Bay for a park,
access road, and further expansion of the yard.

Instead of considering the application only, the
Commission's staff proceeded to study the legality of the
entire fill project, on the ground that the major portion
thereof was completed without a permit and after the Com-
mission was functioning. Oakland claimed the planning and
substantial commencement of the project preceded the forma-
tion of the Commission, and they were thus "grandfathered
in"--outside the jurisdiction of the Commission. Oakland
further questionecl the shoreland jurisdiction of the Com-
mission in toto. 36/ Conservationists in and out of Oakland
were outraged. 377 The prospects for detached analysis
were not brightened when it was pointed out that the shore-"
land to be lost adjoined the poor and predominantly black
section of Oakland. 38/

After some months of study and meetings with Oak-
land officials the Commission staff concluded that a compro-
mise would best suit the interests of all parties--particu-
larly considering the very real possibility of an expensive
and time-consuming lawsuit. This recommendation was rejected
in a close vote of the Commission, which thereupon authorized
the state's Attorney General to commence legal proceedings
against Oakland. 39/ Further consuftations with legal coun-
sel in executive session, however, convinced the Commission to
instruct the staff to continue compromise efforts with Oak-
land. 40/

Amid a storm of conservationist protest, such a
compromise was reached and approved by the Commission on
February 4, 1971, just a month after the original decision. 41/

114

In return for the Commission's withdrawal of its contention
that Oakland had proceeded with a non-water-related develop-
ment and fill without a required permit, Oakland agreed to
create a six-acre park on the Bay by providing waterfront
access on the site along a strip from 55 to 220 feet in
width (a net:increase of three acres from the original plan),
and to recognize the jurisdiction of the Commission over
Oakland's shoreline and adjoining waters as established by
the statutory adoption of the Commission's Bay Area Plan in
1969. 42/

The newspapers and-conservationists were probably
correct in their evaluation of the jurisdictional concessions
as being relatively meaningless. However, the provisions of
added parkland and access, together with a related promise
by Oakland to hold an additional 20 acres (a small bay pen-
insula) in its natural state, 43/ demonstrate the Commission's
continuing concern with making access to the bay available
to the largest number of people. This concern is not always
appreciated by those who see the Commission's function solely
in terms of "preserving" the bay.

The Candlestick Properties Case: A Legal Victory

Prior to the adoption of the 1969 statute the Com-
mission had expressed some doubt about whether the prohibi-
tion of filling of underwater land would be upheld in court,
and had speculated about the possibility of paying compensa-
tion to owners of land on which filling would be prohibited. 44/
But early last year in the case of Candlestick Properties,
Inc. v. San Francisco Bay Conservation and Development Com-
mission 45/ the court of appeals upheld the Commission's
power to deny permits for the filling of San Francisco Bay
without the payment of compensation.

Candlestick Properties, Inc. acquired for $40,000
a parcel of land in-1964 as a depository for fill from
nearby construction projects. The parcel is submerged at
high tide by San Francisco Bay waters. After receiving
the necessary fill permits from the City and County of San
Francisco in September of 1965, Candlestick applied to the
Commission for a fill permit in late 1966, to permit dumping
of debris from San Francisco demolition projects. Nothing
in the record demonstrated any intent to develop the parcel
for water-related uses. The subject parcel is surrounded
by land either filled or in the process of being filled. 46/
on January 20, 1967, the Commission denied Candlestick's
application. The trial court upheld the Commission. 47/

- 115

on appeal, Candlestick's basic contention was
that the denial constituted a taking of its property without
due process of law and that the Commission's demurrer to
that part of its suit claiming damages for that taking was
wrongfully sustained by the trial court. 48/ Citing earlier
cases which define the police power in terms encouraging its
development and change to meet changing conditions, the ap-
pellate court upheld the Commission. The court noted the
legislation's recitation of public interest in the preserva-
tion of the Bay and the threats thereto by filling, and of
the need for a comprehensive plan, 49/ and held that the
denial of Candlestick's application did not amount to an
undue restriction on the use of private property:

"However, it cannot be said that refusing
to allow appellant to fill its Bay land
amounts to an undue restriction on its
use. In view of the necessity for con-
trolling the filling of the Bay, as ex-
pressed by the Legislature . . . . it
is clear that the restriction imposed
does not go beyond proper regulation
such that the restriction would be refer-
able to the power of eminent domain
rather than the police power." 50/

Ferry Port Plaza: The Commission
Takes on San Francisco

Another major issue is the current confrontation
between the City and Port of San Francisco and the Commission
over development of the San Francisco waterfront. This con-
frontation has been epitomized by the controversy, and fin-
ally lawsuit, concerning the Ferry Port Plaza Development
and the ill-fated "rule of equivalencies."

On August 13, 1970, the Ferry Port Plaza Company
(a partnership of the Ford Foundation, Kidder, Peabody &
Co., Inc., and Castle & Cooke) filed an application with the
Commission for permission to demolish four finger-piers just
north of the Ferry Building in San Francisco and replace
them with a pile-supported platform. The proposed demoli-
tion and fill was-part of a plan to construct, upon a 42-
acre site leased from the San Francisco Port Authority, a
complex including a hotel, restaurants, shops, offices, and
public access system. 51/ Approximately $400,000 had gone
into the planning of th-e complex prior to making applications,
largely on the strength of a belief shared by developers, San

116 -

Francisco officials, and the Commission alike in a "rule of
equivalencies.11 @2/ Simply stated, the rule, if adopted by
the Commission, would permit Bay fill for non-water-oriented
uses if the applicant created as much new Bay surface as
would be removed by the fill and if the Commission deter-
mined that the proposed use of the new fill would not ad-
versely affect the public's enjoyment of the Bay. @3/

The developers' prospects were dashed in October
of 1970 when the state's Attorney General declared that,
considering the legislative directive that all further
filling of the Bay be limited to fills for water-oriented
uses, a rule permitting such "replacement fills" would be
invalid. 54/ Amidst cries of foul from the City of San
Francisco and dire predictions from the press that "BCDC
will find itself presiding over a ramshackle jurisdiction
of rotting piles and obsolete piers, and a scant source of
public enjoyment," the Commission accepted the opinion and
denied Ferry Port Plaza Company's petition by a vote of
22 to I.., The denial was based on two counts: (1) the
project included an office building--a non-water-oriented
use, and (2) while the remainder of the project was water-
oriented, it called for the development of public property,
contrary to Section V-1-a of the Bay Plan. 55/

on March 3, 1971, the San Francisco Port Commission
and the City and County of San Francisco brought suit against
the Commission, asking the court to declare the Perry Port
project legal under existing state laws and to require the
Commission to issue the necessary permits. 56/ Currently
this suit is in the discovery stage, interrogatories having
been served on the respective parties. 57/ Although they
would presumably have an interest, none of the private
parties concerned with the Ferry Port Plaza project (Oceanic
Properties, Kidder, Peabody, Ford Foundation) have joined in
suing the Commission. Oceanic Properties has no intention
of doing so, and represents that as far as it knows, neither
do the others. 58/

Meanwhile, the Commission adopted a policy amend-
ment to the San Francisco Bay Plan on June 3, 1971, which in
part restores the equivalencies concept without permitting
wholesale development unrelated to water, on public or private
land. One of the charges levied at the Commission by the City
of.San Francisco was that under its interpretation of its
authority ". . . Fishermen's Wharf could burn down tomorrow
and there would be no way to get a permit to replace it." 59/
This conclusion was apparently reached by interpreting Section

- 1,17 -

V-1-a of the San Francisco Bay Plan to forbid any fill for
non-water-oriented uses, even if such a use had previously
existed but was involuntarily terminated through fire or
other calamity. Whether this interpretation was in fact
correct has never been definitely ascertained, 60/ but in
any event, the Commission added to the four conal-tions
under which the Bay could be filled 61/ a fifth. 62/ Essen-
tially, it provides for fill approval on either private or
publicly-owned property, provided that the fill is limit@@_d
to replacement of piers covering less of the Bay than was
being uncovered. Moreover, only.an area equal to 50%
of the area uncovered can be devoted to uses other than
public open space, access and public recreation, and that
50% must be for Bay-oriented commercial recreation and
public assembly purposes. The only exception is in case
of destruction of a pier by fire or similar disaster, in
which case an equivalent percentage as was previousl de-
voted to such uses may be rebuilt on a new pier. _&X

The intent of the new regulations is to permit new
development on the San Francisco waterfront without increas-
ing the amount of fill in the Bay. �@4/ Criticism of the pro-
posal by conservation groups and from proponents of the
McAteer-Petris Act, which created the Commission, is running
high. 65/ on the other hand Berkeley architecture professor
Richar"T-Meier has charged that the Commission's existing
restrictions on waterfront development discriminate against
minority groups:

The urban ecology of North American
cities leads to the settlement of ghettos
in low-lying areas. Thus, seven of the
eight Negro communities and two of the
three Latin settlements immediately ad-
join the Bay. They exhibit high concen-
trations of unemployment. The principal
entry into high-paying jobs for young
men happens to be through the construc-
tion industry and its suppliers, but if
all construction on the edge of the Bay
is halted, growth is deflected to the
periphery, which has poor commuter trans-
portation connections to the ghettos.
So, programs for saving the Bay, as con-
ceived by the purists, will benefit those
with "view" lots, yachts, and interests
in estuarine wildlife, at the expense
of those least able to pay.for and to
defend their interests. 66/

- 118

The Commission finds this argument unpersuasive, given the
scarcity of minority group members in the construction trades, 67/
and as Chairman Melvin Lane has pointed out, the Commission's
new regulations follow the statutory direction to concern
itself with development as well as conservation. 68/

Throughout the Ferry Port Plaza-Rule of Equivalen-
cies controversy, related development was also before the
public in the form of news articles concerning a proposed
U.S. Steel office building. It has been suggested that the
coincidence of these two projects contributed to the temporary
demise of Ferry Port Plaza, 69/ although the two controver-
sies seem only vaguely related in terms of law. Their only
relationship appears to be their location--on San Francisco's
waterfront, where conservationists and other groups were
determined they should not be plac.ed. 70/ The chronology
of this second controversy is briefly as follows.

The San Francisco Bay Plan Commission unveiled in
early 1970 plans for a 550-foot office building and passenger
terminal to be built by U.S. Steel Corporation. 71/ Mean-
while, the City's Planning Staff, on the basis of a $216,000
private planning study, recommended a height limitation for
waterfront buildings of 84 feet with limited exceptions per-
mitting construction to 175 feet "under strict planning con-
trols." 72/ In the summer of 1970, a 400-foot limitation
was proposed by the Plan Commission and rejected by the San
Francisco Board of Supervisors. Apparently the Commission
took that rejection as an implicit request by the supervisors
that the limitation be raised to 550 feet. 73/

At its September 10th meeting the City Planning
Commission "bowed to what was called economic necessity"
and adopted the 550-foot height limit for new buildings
between the Ferry Port Building and the Bay Bridge. 74/
The proposal then went back to the Board of Supervisors
for approval.

At that point the battle lines became rather
clearly drawn between conservation groups and some super-
visors on the one hand (including chairman Dianne Fein-
stein) and the developers, the Port Authority, the Mayor's
office and other supervisors on the other. 75/ After a
90-day delay in considering a subcommittee report wholly
opposing the 550-foot limitation, 76/ the supervisors voted
in February of 1971 to impose the @TT-foot limit with excep-
tions permitting 174 feet, 27/ as originally proposed by the
City Planning Commission staff.

- 119 -

It would appear that the proximity in time to the
Ferry Port Development plan before the Commission, together
with the similar line-up of parties for and against the pro-
ject, tended to meld the two projects in the public's mind
and may thus have contributed to the apparent groundswell of
public antagonism to each project.

Balancing Conservation and Development

As these controversies indicate, the Commission is
constantly balancing conservation goals against development
goals. Many conservationists like the Sierra Club's Dwight
Steele and Save San Francisco Bay Association's Barry Bunshoft
feel the commission is moving increasingly toward an accommo-
dation with developers, 78/ but Chairman Lane is quick to
point out that the Commission by statute has a developmental
as well as a conservationist role. 79/

On the other side of the fence, many developers
and municipalities feel that the Commission leans too far
in the direction of conservation. This is clearly the view
held by a good part of official San Francisco. Because of
"misguided priorities" at best, one administrator in that
city's Planning Department charges, the Commission is over
concentrating on San Francisco to the detriment of both
that city's waterfront and the rest of the Bay, which is
being neglected. According to R. Spencer Steele, San Fran-
cisco's Assistant Director of Planning, the Commission has
condemned the San Francisco waterfront to a rotting and
dangerous pier system in the name of preservation. At the
same time, he contends, the commission "has been good to
developers elsewhere on the Bay."

The same type of attitude is evident in the com-
ments of John H. Tolan, Jr., Deputy Director for Development,
office of the Mayor of San Francisco. Speaking largely in
the context of the Ferry Port Plaza controversy discussed
earlier, Tolan criticized the Commission for seeking preserva-
tion for preservation's sake, forgetting that access, sani-
tary facilities, recreational facilities, and the like were
what "the people" wanted along the Bay. According to Tolan,
what was wanted and needed was an activity center, not wilder-
niess. Tolan feels that non-development, especially of "public
land" like that involved in Ferry Port Plaza, is "too ex-
pensive" to be permitted. San Francisco, he contends, needs
such land for revenue-producing purposes. Reiterating that
such non-development is, moreover, of too little benefit for
too few people, he sees the Commission as presently and

45@-329 0 - 72 - 9

120

prospectively continuing in its non-develo,pment, conserva-
tionist attitude. 81/

The@e views are echoed by some private developers.
David Keyston, Executive Vice-President of Anza-Pacific
Development Company, declares that Commission regulation has
resulted in a shoreline inferior in every way (economically,
environmentally and aesthetically) from what unfettered
private development could produce. Keyston appears to be
against any and all form of governmental land use control.
Although most of Anza-Pacific's properties have been "grand-
fathered in" and Anza-Pacific has been successful at both
of its appearances before the Commission with respect to
lands, Keyston's views may be explained by the fact that
Anza-Pacific was apparently considering some potentially
lucrative tideland purchases which it has forsaken for fear
that the necessary filling would not be approved by the Com-
mission--precisely the sort of decision to which conserva-
tionists point as one of the Commission's strengths. 82/

Robert Cranmer of Westbay Community Associates
also feels the Commission has gone too far toward conserva-
tion--has "stopped development." As he sees it, Westbay's
23-mile-long development (discussed below) would have opened
up vast portions of the Bay for the people of the area. 83/

Those developers who are least critical of the
Commission appear to be those who have been successful in
obtaining permits from it. Thus, Phillip Smith, Secretary
of Trimont Land Company, considers the Commission's tough-
ness on developers to be an asset, especially for those like
Trimont which, he says, molds its developmental decisions
in accordance with the Commission's regulations. 84/ Tri-
mont's only major tidelands development, a marine-"boatel"-
restaurant complex near Emoryville, won approval from the
Commission in July of 1970. 85/ Similar sentiments were
expressed by a planner for Leslie Properties, Inc., largest
private landholder (40,000 acres) in the Bay area. John
Passerello, Chief Regional Planner for Leslie, indicated 4@
that his staff, at least, wholly agreed with the concept
and practices of the Commission. It turns out that Leslie
has largely completed its planned development in the Bay
or is "grandfathered in." @16/

Melvin Lane is not particularly impressed with
the attacks on the Commission by municipalities. He points
out that over the past two years San Francisco has been
successful in three-quarters of its fill applications to
the Commission--all permitted on an "emergency basis." A

121

good deal of it is still awaiting development. The cities
on the Bay, according to Lane, are jockeying for position
to attract shipping. According to Lane, cities like Oakland
and San Francisco are preeminent now but have pretty much
developed all their available shoreland. other cities on
the Bay, such as Richmond and Benecia, are designated on
the Bay Planas suitable for maritime development, and
while they may not be as sophisticated in maritime matters,
they are very anxious to develop their capabilities. Al-
lowing development by one city will enable that city to get
a competitive edge on another. Therefore, the Commission
is going to be in a hassle with San Francisco and other
cities no matter what it does.or does not permit. 87/

Lane agrees that development is needed to increase
enjoyment of certain portions of the Bay, but his@response
to both private and public developers is that this should
take place without any filling of the Bay. Unfortunately,
all the plans turned down thus far contemplated a good deal
of filling. T8J

The Actual Impact of the Commission

Measured in actual results, the Commission's
impact has undoubtedly been substantial. There is no way
to predict exactly what would have happened by now if the
Commission had not been created, but it is generally known
that a number of the large landowners in the Bay area were
studying massive development proposals involving the filling
of large tracts in the Bay. @9/ Since the creation of the
Commission these proposals have remained dormant. A prime
example is the failure of Westbay Community Associates to
develop and redevelop 23 miles of Bay land for a combination
of commercial and industrial uses. 20/ The development,
which would have taken over 20 years to complete, was
stopped in 1969 when the Commission denied permits on the
ground it was contrary to the Bay Plan. 91/

In addition, Executive Director Joe Bodovitz sug-
gests that extensive filling would have been undertaken for
both major airports, for numerous garbage dumps, for an
extensive addition to the'Port of Oakland, and for develop-
ment of some 2,500 acres of tidelands owned by the Santa Fe
Railway. 92/

To say that this development was "stopped," how-
ever, merely raises a new question. Did the closing of the
Bay to developers merely increase the pressure on, for example,

122

the natural resources of the Carmel Valley? Do limitations
on new office buildings in San Francisco encourage further
sprawl in San Jose?

Of course the Commission has no answer to these
questions because it was never asked to consider them. The
Commission's planning, though skillful and articulate, con-
sidered only the relatively direct impact of development on
or near the Bay and did not examine all of the regional
implications. It can be argued that the Commission is
really just one more special district, focusing on limited
goals and on a limited portion of the region, and entitled
to as much criticism from political science purists as,
e.g., the New York Port Authority.

But realistically, could the Commission have
accomplished its goals any other way? Was it essential to
focus on the Bay, with its high.degree of visibility and
imageability and a limited number of easily perceived issues
regarding it, in order to obtain public support for the Com-
mission's creation? Is it inevitable that a more comprehen-
sive approach ends in a result as steril@ and uninspiring as
ABAG's regional plan? Are limited plans that work better
than comprehensive plans that don't?

The Commission's success to date inevitably raises
the question of whether it should try to capitalize on its
success so that it may be transformed into a more comprehen-
sive regional entity? Fear of just such a result caused the
Association of Bay Area Governments, the existing regional
planning agency for the area to oppose the creation of an
independent Bay Commission. 93/ Melvin Lane, current chair-
man of the Commission, thinks an expansion to include other
purposes would, as he sees it, result in the end of BCDC as
it presently exists. He sees the Commission as continuing
to set broad parameters around local government,powers rather
than preempting them. 24/ The problem, according to Lane,
is one of technical competence and time, whether it is a
matter of solid waste disposal regulation (which Governor
Reagan would apparently like to place with the Commission)
or open space management. 95/ Lane feels that if the Com-
mission were forced to undertake responsibility for these
and other programs it would have to hire administrators to
make most of its decisions, and the Commission itself would
tend to become a rubber-stamp body. 96/

various proposals for regional government in the
Bay area have been considered, and the proper relationship
that the Bay Commission should bear to an overall regional

- 123 -

government has frequently been debated. _27/ The Commission
has not taken any stand on any of the regional government
bills that have been proposed in the California legislature
nor on what the proper relationship of the Commission to
regional government might be. 98/ A bill creating a Bay
Area Regional Government with certain governmental powers
has passed the California Assembly and is currently pending
in the Senate, but this bill exempts the Commission from its
provisions. 99/

To date the Bay Commission has been remarkably
successful. It has faced the powerful development inter-
ests and traditionally sacred concepts of home rule and
emerged with relatively few scars. Its opponents, however,
are down but not out, as the Ferry Port Plaza suit and the
Oakland Bay fill controversy amply demonstrate; if the con-
servation groups lose interest or the legislature ceases to
give the Commission strong support, they lie ready to pounce.
The City of San Francisco's strong social and economic impetus
for redevelopment of its port area is proving to be the first
major battleground on which the Commission will be tested.

124

FOOTNOTES

l/ Note 55 CALIF. L.R. 728 (1967).

See E. Jack Schoop and John E. Hirten, "The San Fran-
cisco Bay Plan: Combining Policies with Police Power,"
AIP JOURNAL, January, 1971; Note, "Saving San Francisco
Bay: A Case Study on Environmental Legislation,"
STAN. L.R. 349 (January, 1971).

3/ San Francisco Bay Conservation and Development Com-
mission, San Francisco Bay Plan (1969).

See California Government Code �66600, et seq.

5/ See, 23 STAN. L.R. at p. 362.

6/ See, generally, �66610. The Deputy Director of the
Commission believes the Commission's permit-issuing
powers should be extended to a broader area. Compare
the bill to create the California Coastal Conservation
and Development Commission presented without success
to the 1970 California legislature (Assembly Bill No.
640) which would have granted that Commission juris-
diction for an area one mile back from the shoreline.

7/ �66632(f).

8/ �66632.4. In a number of instances the Commission has
induced developers to-provide greater public access to
the Bay in connection with projects built within the
shoreline band. See 1970 Annual Report San Francisco
Bay Conservation and Development commission, at p. 7.

'�66632(f).

10/ �66632(b).

ll/ See Administrative Regulations of Bay Conservation and
Development Commission, �10311-13 (November 12, 1970).

12/ �66632(a).

13/ 1970 Annual Report, p. 5. In the 1970 legislative
session the California legislature adopted.Senate Joint
Resolution No. 35 requesting all federal agencies to
cooperate with the Commission by submitting all plans
for filling, dredging, shoreline construction to the
Commission for review.

- 125

14/ Cf. The American Law Institute, Model Land Development
Code, T.D. #2, pp. 26-30.

L5/ See ��66630.1, 66631 and 66652.

16/ Administrative Regulations of the BCDC, op. cit.; the
administrative regulations were adopted by the Commission
in October, 1970 and will be printed in the California
Administrative Register as Division 5 of Title 14 of the
California Administrative Code.

17/ Interview with Joseph Bodovitz, Executive Director, San
Francisco Bay Conservation and Development Commission,
September 1, 1971.

18/ 1970 Annual Report, at p. 7.

19/ The executive director is allowed to issue permits for
minor repairs or improvements under �6663,2(f). See
1970 Annual Report, at p. 8.

1
20/ Interview with Alvin Baum, Jr., Deputy Director, San
Francisco Bay Conservation and Development Commission,
March 16, 1971.

21/ Interview with Alvin Baum, Jr., March 15, 1971.

22/ See T. J. Kent, OPEN SPACE FOR THE SAN FRANCISCO BAY
AREA 20 (Institute of Governmental Studies, University
of California, Berkeley, 1970).

23/ Interview with Joseph Bodovitz, September 1, 1971.

24/ Barry Bunshoft of Save San Francisco Bay Association;
Dwight Steele, Sierra Club Project Coordinator for San
Francisco Bay (1971).

25/ �66620.

26/ Interview with Alvin Baum, Jr., March 15, 1971.

27/ Interview with Rudy Platzak, Planning Director, ABAG,
June 15, 1971.

28/ Interview with Alvin Baum, Jr., March 15, 1971.

29/ Association of Bay Area Governments, REGIONAL PLAN
1970: 1990, SAN FRANCISCO BAY REGION (1970).

126

30/ Interview with Joseph. Bodovitz, September 1, 1971.

31/ Interview with Alvin Baum, Jr. , March 15, 1971.

32/ Interview with Joseph Bodovitz, September 1, 1971.

33/ San Francisco Chronicle,,January 8, 1971. Interview
with Norman J. Lind, Planning Director, City of Oakland,.
June 22, 1971.

34/ San Francisco Chronicle, September 28, 1970. Interview
with Norman J. Lind, June 22, 1971. BCDC Minutes of
January 1, 1971.

35/ BCDC Minutes of October 1, 1970.

36/ BCDC Minutes of January 7, 1971.

37/ San Francisco-Chronicle, January 8, 1971. San Fran-
cisco Chronicle, September 28, 1970. Interview wiCh-
Norman J-. Lind, June 22, 1971.

38/ Interview with Norman J. Lind, June 22, 1971. BCDC
MinuEes of January 7, 1971.

39/ BCDC Minutes of January 7, 1971.

40/ San Francisco Chronicle, February 5, 1971. Interview
with Norman J. Lind., June 22, 1971. BCDC Minutes of
January 21, 1971.

41/ San.Francisco'Chronicle, February 5, 1971.

42/ City of Oakland inter-office letter from Oakland z
Director of Public Works to Oakland City Manager,
dated February 8, 1971.

43/ Interview with Norman J. Lind, June 22, 1971.

44/ See San Francisco Bay.Plan Supplement, pp. 462-76
(1969).

45/ 11 Cal. App. 3rd 557, 89 Cal. Rptr. 897 (1970).

46/ Id., at p. 899.

47/ Id.

48/ Id., at p. 905.

- 127

49/ Id.

50/ Id., at p. 906.

51/ Amended Complaint No. 688-659, filed April 15, 1971.
BCDC Minutes of December 3, 1970.

52/ Interview with John H. Tolan, Deputy for Development,
June 22, 1971; interview with Melvin B. Lane, Chairman,
San Francisco Bay Conservation and Development Commission,
June 23, 1971.

53/ California opinion of the Attorney General (No. 70/121)
dated October 15, 1970. BCDC Minutes of September 3,
1970, regarding draft regulation 10445, "Rule of Equi-
valencies":

"(a) When a project in any area not designated
for a priority water-related use involves both placing
of fill (including pilings and structures built on
pilings) and also enlarging of the Bay by extracting
materials (including the removal of piers and struc-
tures built on pilings), then both the extracting of
materials and the placing of fill must be consistent
with all relevant San Francisco Bay Plan policies
except that if the proposed fill, including the area
to be covered by structures built on pilings, does
not exceed in area the proposed addition to the Bay
surface due to extraction of materials (including the
removal of piers and structures built on pilings),
then the fill may be used for any purpose, whether or
not water-related, that does not adversely affect
enjoyment of the Bay and its shoreline by residents,
employees, and visitors within the fill area itself
or within adjacent areas of the Bay and shoreline.

"(b) The Commission shall, in approving any fill
pursuant.to paragraph (a) of this section, impose rea-
sonable terms and conditiofis as provided in subdivision
(f) of Government Code Section 66632, to assure that
the approved project will comply with the San Francisco
Bay Plan.

"(c) 'If the fill proposed for approval under
this section is solid fill of any type, including but
not limited to dirt, sand, or debris, then the corres-
ponding enlarging of the Bay must involve the dredging
or excavation of areas that are not presently subject
to tidal action, and are of at least equivalent surface
area and equivalent volume. If the fill proposed for

128

approval under this section consists of pilings or
structures built on pilings, then the equivalent en-
largement of the Bay may involve either such dredging
or.excavation, or the removal of pilings or structures
built on pilings. But solid fill may not be permitted
to the extent that the proposed enlargement of the Bay
involves only removal of pilings or structures built
on pilings."

54/ Id.,,San Francisco Chronicle, November 4, 1970, at p. 11.

55/ San Francisco Chronicle, Editorial of November 19,
1970. BCDC Minutes of December 3, 1970; the minutes
disclose lengthy presentations made by the staff,
summarizing the pros and cons of the development, to-
gether with public statements by a wide range of
individuals both for and against granting the permit
application.

56/ Complaint, Case No. 628-659, filed March 3, 1971. San
Francisco Chronicle, March 4, 1971, at p. 2.

57/ Interview with Alvin Baum, Jr., June 21, 1971.

58/ Interview with Warren Haight, Wendell Brooks and
George Yim of Oceanic Properties, Inc., June 9, 1971.

59/ Interview with John H. Tola:n, June 22, 1971.

60/ Telephone conversation with Alvin Baum, Jr., August 18,
1971.

61/ "a. FILLS IN ACCORD WITH BAY PLAN. A proposed
project should be approved if the filling is the mini-
mum necessary to achieve its purpose, and if it meets
one of the following five conditions:

"(1) The filling is in accord with the Bay
Plan policies as to the Bay-related purposes for which
filling may be needed (i.e., ports, water-related
industry, and water-related recreation) and is shown
on the Bay Plan maps as likely to be needed; or

"(2) The filling is in accord with Bay
Plan policies as to purposes for which some fill may
be needed if there is no other alternative (i.e., air-
ports, roads, and utility routes); or

- 129

"(3) The filling is in accord with the Bay
Plan policies as to minor fills for improving shoreline
appearance or public access; or

"(4) The filling would provide on privately-
owned property for new public access to the Bay and for
improvement of shoreline appearance--in addition to
what would be provided by the other Bay Plan policies--
and the filling would.be for Bay-oriented commercial
recreation and Bay-oriented public assembly purposes,
with a substantial part of the project built on exist-
ing land. The Bay agency should issue permits under
this criterion provided:

"(a) The proposed project would limit
the use of area to be filled to: (i) public recreation
(beaches, parks, etc.), and (ii) Bay-oriented commercial
recreation and Bay-oriented public assembly, defined as
facilities specifically designed to attract large num-
bers of people to enjoy the Bay and its shoreline, such
restaurants, specialty shops, and hotels.

."(b) The proposed project would be de-
signed so as to take advantage of its nearness to the
Bay, and would provide opportunities for enjoyment of
the Bay in such ways as viewing,. boating,,fishing, etc.,
by keeping a substantial portion of the development,
and a substantial portion of the new shoreline created
through filling, open to the public free of charge
(though an admission charge could apply to other por-
tions of the project).

"(c) The proposed private project would
not conflict with the adopted plans of any agency of
local, regional, state, or federal government having
jurisdiction over the area proposed for filling, and
would be in an area where governmental agencies have
not planned or budgeted for projects that would provide
adequate access to the Bay.

"(d) The proposed project would either
provide recreational development in accordance with the
Bay Plan maps or would provide additional recreational
development that would not unnecessarily duplicate
nearby facilities.

"(e) A substantial portion of the project
would be built on existing land, and the project would
be planned to minimize the need for filling. (For

130

example, all automobile parking should, wherever possible,
be provided on nearby land or in multi-level structures
rather than in extensive parking lots.)

"(f) The proposed project would result in
permanent public rights to use specific areas set aside
for public access and recreation; these areas would
be improved at least by filling to finished grade and
by installation of necessary basic utilities, at little
or no cost to the public.

"(g) The proposed project would, to the
maximum extent feasible, establish a permanent shore-
line in a particular area of the Bay, through dedica-
tion of lands and other permanent restrictions on all
privately-owned and publicly-owned property Bayward
of the area approved for filling.

"(h) The proposed project would provide
to the maximum extent feasible for enhancement of fish
and wildlife resources in the area of the development."

"(5) The filling would provide on privately-
owned or publicly-owned property for new public access
to the Bay and for improvement of shoreline appearance
--in addition to what would be provided by the other
Bay Plan policies--and the filling would be limited to
replacement piers for Bay-oriented commercial recreation
and Bay-oriented public assembly purposes, covering less
of the Bay than was being uncovered. The Bay agency
should issue permits under this criterion provided:

"(a) The proposed replacement fill in
its entirety, including all parts devoted to public
recreation, open space, and public access to the Bay,
would cover an area of the Bay smaller in size than
the area being uncovered by removal of piers (pile-
supported platforms), and those parts of the replace-
ment fill devoted to uses other than public recreation,
open space, and public access would cover an area of
the Bay no larger than 50 per cent of the area being
uncovered (or such greater percentage as was previously
devoted to such other uses that were destroyed involun-
tarily, in whole or in part, by fire, earthquake,' or
other such disaster, and will be devoted to substan-
tially the same uses).

"(b) The volume (mass) of structures to
be built on the replacement pier (pile-supported plat-

131

form) would be limited to the minimum necessary to
achieve the purposes of the project.

."(c) The replacement fill would be
limited to piers (pile-supported platforms), rather
than earth or other solid material, and, wherever
possible, a substantial portion of the replacement
project would be built on existing land.

"(d) The pier (pile-supported platform--
not a bridge) to be removed from the Bay must have:

"(i) been destroyed, involuntarily,
in whole or in part, by fire, earthquake,
or other such disaster, or

"(ii) become obsolete through physi-
cal deterioration, or

"(iii) become obsolete because
changes in shipping technology make it
no longer needed or suitable for maritime
use.

If the platform itself, or the structures on it, have
become obsolete, but the pilings that support the plat-
form are structurally sound, consideration must be given
to using the existing pilings in any replacement project.

"(e) The proposed project must be,con-
sistent with a comprehensive special area plan for the
geographic vicinity of the project, a special area plan
that the Commission has determined to be consistent
with the policies of the San Francisco Bay Plan, except
that this provision would not apply to any project in-
volving replacement of only a pier that had been destroyed
involuntarily.

"(f) The proposed project would involve
replacement fill and removal of material in the same
geographic vicinity (as set forth in the applicable
special area plan).

"(g) The proposed replacement pier would
not extend into the Bay any farther than (i) the piers
(pile-suppdrted platforms) to be removed from the Bay
as part of the project, or (ii) a.djacent existing piers.

132 -

"(h) The proposed project would limit
the use of the replacement pier to: (i) public
recreation (beaches, parks, etc.), and (ii) Bay-oriented
commercial recreation and Bay-oriented public assembly,
defined as facilities specifically designed to attract
large numbers of people to enjoy the Bay and its shore-
line, such as restaurants, specialty shops and hotels.

"(i) The proposed project would be de-
signed so as to take advantage of its nearness,to the
Bay, and would provide opportunities for enjoyment of
the Bay in such ways as viewing,'boating, fishing, etc.,
by keeping a substantial portion of the development,
and a substantial portion of the new shoreline created
on the replacement pier, open to the public free of
charge (though an admission charge could apply to other
portions of the project) .

"(j) The proposed project would not con-
flict with the adopted plans of any agency of local,
regional, state, or federal government having jurisdic-
tion over the area proposed for the replacement piers,
and would be in an area where governmental agencies
have not planned or budgeted for projects that would
provide adequate access to the Bay.

"(k) The proposed project would either
provide recreational development in accordance with the
Bay Plan maps or would provide additional recreational
development that would not unnecessarily duplicate
nearby facilities.

"(1) The project would be planned to
minimize the need for filling. (For example, all auto-
mobile parking should, wherever possible, be provided
on nearby land or in multi-level structures rather than
in extensive parking lots.)

"(m) The proposed project would result in
permanent public rights to use specific areas set aside
for public access and recreation; these areas would be
improved at least to finished grade and by installation
of necessary basic utilities, at little or no cost to
the public.

"(n) The proposed project would, to the
maximum extent feasible, establish a permanent shore-
line in a particular area of the Bay, through dedication

- 133

of lands and other permanent restrictions on all pri-
vately-owned and publicly-owned property Bayward of the
area approved for piers.

"(o) The proposed project would provide
to the maximum extent feasible for enhancement of fish
and wildlife and other natural resources in the area
of the development, and in no event would result in net
damage to these values.
06
63/ Id.

Interview with Alvin Baum, Jr., June 21, 1971.

65/ Assemblyman John T. Knox has written the Commission
opposing the plan amendment by letter dated May 19,
1971. others critical of the amendment: Barry Bun-
shoft of Save San Francisco Bay Association (inter-
view in June, 1971); Dwight Steele, Sierra Club Pro-
ject Coordinator for San Francisco Bay (interview
in June, 1971). For an opposing view, Hans Feibush,
former BCDC Commissioner (1965-1969) and former con-
sultant to Oceanic Properties, and member of Save San
Francisco Bay Association, does not consider the pro-
posed amendment a sell-out to development interests in.
San Francisco, primarily because they will not author-
ize any new fill [in fact, the result should be a net
reduction in fill]

66/ Richard L. Meier, "Interpretation: Insights Into
Pollution,"'AIP JOURNAL, July, 1971, at pp. 211, 216.

67/. Interview with Joseph Bodovitz, September 1, 1971.

68/ Interview with Melvin B. Lane, June 23, 1971.

69/ Id.

70/ John H. Jacobs, "Will They Leave the Heart in San
Francisco," TOWN AND COUNTRY PLANNING 1971, at pp.
170-171.

71/ Id., at p. 170.

72/ Letter of Supervisor Robert Boas to Dianne Feinstein,
President of the San Francisco Board of Supervisors,
dated September 11, 1970.

73/ Id.

- 134 -

Z4/ "550-Foot Waterfront Height OK'd," San Francisco Chronicle,
September ll,.1970.

75/ "Board Delays Action on Waterfront Height Limit," San
Francisco Chronicle, November 17, 1970; "City Hall
'Clash on Steel Sites," San Francisco Chronicle, Septem-
ber 18, 19.70-

26/ Id.

77/ Letter from Mike McCracken, dated August 5, 1971.

28/ Interviews in June, 1971.

29/ Interview with Melvin Lane on June 23, 1971. A.B. 1057,
currently before the California Legislature,.would put
responsibility for open-space regulation in an inde-
pendent agency which, according to.Alvin Baum, Jr.,
Deputy Director of BCDC, would eventually be merged
with the Commission.

.@O/ interview with R. Spencer Steele, Assistant Director
of Planning for the City of San,Francisco, June 1,
1971.

81/ Interview on June.22,:1971. Clearly much of the
criticism coming from San Francisco officials is a
result of their defeat in the Ferry Port Development
application. Certainly the depth to which relations
have sank between the City and BCDC can be measured
from the following quotation from a letter, dated June
2, 1971, addressed to the Executive Director of the
BCDC from the Director of Planning in San Francisco,
concerning the proposed Bay Plan amendments to permit
some replacement fill in the Bay:

"I have reviewed the revised Bay Plan amendments
and can only say that, with minor exceptions, the
revisions are as poorly drafted as the original and
will result in much confusion. I am disappointed that
you did not seefit to discuss the difficulties in the
original language, as well as that now proposed, with
my staff, given your Commission's reluctance to listen.
our considerable experience in regulatory work might
have been helpful.

"Given my past experience in attemptingto present
comments before your Commission, it would,seem point-
less to appear again to offer what I consider to be

135 -

constructive criticism. I would once again indicate.
my approval of the general concept of the amendments
but disagree with your specific language."

82/ Interview with David Keyston, Executive Vice-President,
Anza-Pacific Development Company, June 1, 1971.

83/ Interview on June 23, 1971, in San Francisco.

q4/ Interview with Philip Smith, June, 1971.

.q5/ San Francisco Chronicle, July 23, 1970, at p. 5.

@q6/ Interview with John Passarello, June 17, 1971.

.q7/ Interview with Melvin B. Lane, June 23, 1971.

.@8/ Id.

89/ See. 23 STAN. L.R. 358-59.

20/ General Development Plan, Westbay Community Associates
(June, 1968). Cf. Fellmeth, et al., POWER AND LAND IN
CALIFORNIA (Preliminary Draft, 1971), at IV-149-50.

21/ Interview with Robert Cranmer, June 23, 1971.

22/ Interview with Joseph Bodovitz, September 1, 1971.

23/ T. J. Kent-, op. cit., at p. 20.

94/ Interview with Melvin B. Lane, June 23, 1971.

25/ Id.

26/ Id.

27/ San Francisco Bay Plan Supplement, op. cit., at p. 501
ff. See Note, 55 CALIF. L.R. 728, 757-69 (1967);
Association of Bay Area Governments, REGIONAL PLAN
1970: 1990, SAN FRANCISCO BAY REGION, at pp. 31-32
(1970). T. J. Kent, op. cit., at p. 21.,

28/ Interview with Alvin Baum, Jr., March 15, 1971.

29/ Interview with Joseph Bodovitz, September 1, 1971.

452 - 329 0 - 72 - 10

136 -

TWIN CITIES METROPOLITAN COUNCIL

The Minnesota Legislature created the Metropolitan
Council of the Twin Cities Area (hereinafter simply Metro-
politan Council or Council) in 1967, as an administrative
agency to coordinate the planning and development of the
metropolitan'area which surrounds Minneapolis and St. Paul.
The Council's jurisdiction is a 3,000-square-mile, seven-
county area that includes 1.8 million people (nearly half the
population of the State of Minnesota), in 320 separate but
overlapping governmental units, of which 133 are incorporated
cities or villages.

The Council is specifically directed to deal with
the necessity for consolidating common services of local
government units, in a manner consistent with the public
interest. @/ In order to implement these directives, the
Act of 1967 requires that certain plans and policies

LOCATION OF THE TWIN CITIES METROPOLITAN AREh
IN MINNESOTA

co
06-

TA ce
M I N N E 0 T

49 jk:-

cia
dB

137

(especially plans of independent functional boards and
agencies) be submitted to the Council for review. If the
Council fails to approve such a plan, its execution is
indefinitely stayed. The Council is also required to make
studies relative to certain municipal and metropolitan
problems, a function which is largely inherited from a
previously created Metropolitan Planning commission, the
functions of which the Metropolitan Council has since
wholly absorbed.

Thus, while the principal function of the Council
is to guide the growth of the metropolitan region through
its own planning and review of the plans of functional boards
and commissions (and, to some extent, municipalities), in
fact it appears to have considerable control over the region
through its power to control the plans for certain key types
of development. The Council's' principal standard is a
comprehensive plan called the Metropolitan Development Guide,
which it is the Council's responsibility to prepare. V Other
legislation to supplement the Council's functions has been
passed in succeeding sessions of the Minnesota Legislature
and is discussed in later portions. of this Chapter.

History and Circumstances of Adoption

The Metropolitan Council was initially created in
1967 in response to severe water well pollution caused by
inadequate local sewer systems. As in many metropolitan
regions, Minneapolis-St. Paul experienced a housing boom
after World War II. For financial as well as geological
reasons, developers relied primarily on individual wells
and septic systems for water and sewer service. 'By 1959,
nearly 400,000 persons were using such systems. @/ When
in 1959 a suburban housewife called the state health depart-
ment to report that a glass of water just drawn from a tap
had a head on it, like a glass of beer, inspections disclosed
that half the wells were recirculating sewage from septic
tanks. Z/ While it was conceivable for some municipalities
to move immediately to provide pure water by means of deep
wells, @L/ it proved impossible to construct individual
central sewer systems without intergovernmental cooperation. .2/
Unfortunately, bills to create an areawide sanitary district
for that purpose died after "terrible wrangles" in the
legislature in 1961, 1963, 1965, and 1967. L0_/

Meanwhile, a host of other problems cried for
areawide solution. After considerable study, the local
Citizens League issued a series of reports in 1966 and 1967

138

enumerating area functions and services being inadequately
provided. Among them were: sewage disposal, public
transporation, highway construction, parks and open space
provisions, area zoning, water supply, air pollution, police
protection, annexation and incorporation, debt financing,
libraries, the ubiquitous Dutch Elm disease--and a metro-
politan zoo: L1J The Citizens League noted further that
besides the relatively ineffective bodies formerly created
to deal with these problems, the only areawide comprehensive
planning authority for the region was the strictly advisory
Metropolitan Planning Commission, which had been engaged
from its inception in 1957 in planning only, preparing a
development guide for the seven-county area. The league
noted further that new responsibilities and various federal
funding,programs would soon fall on the Commission--something
clearly never contemplated by the legislature when it created
that body. 12/

This is not to say that political resistance to a
metropolitan governmental body evaporated even as environ-
mental and other crises developed. The problem of creating
a consensus'among the various urban, suburban and rural
interests in the metropolitan area was far from easy. i@/
The Council today is neither as strong as its proponents
would like, nor as weak as its opponents sought to make it.

What the Citizens League proposed--and what the
legislature finally accepted in the closing weeks of the
1967 legislative session--was the creation of a metropolitan
organization to deal with metropolitan planning, review
requests for federal aid, and exercise policy control over
maior decisions relating to metropolitan functions. 14/
The point was not to wholly supersede local government units,
but to create an areawide council capable of solving those
problems which could not be effectively dealt with at the
local level. The actual legislative draft was prepared by
the Citizens League in conjunction with the Upper Midwest
Research Council. IV The Metropolitan Council proceeded
immediately to organize itself, absorb the Planning Commis-
sion, hire an executive director,-and commence functioning.

In the 1969 legislative session, after the Council
proved itself by formulating a plan for alleviating the
sewage and water crises which were the catalyst that brought
it into being, the legislature responded with a Council-
backed legislative package consolidating and extending the
Council's policy-making and review functions over sewage
and waste disposal facilities construction and airport
location. 16/ Further particulars dealing with the history

139

and circumstances of the creation of the Metropolitan Council
can be found in Stanley Baldinger's exhaustive study,
Planning and Governing the Metropolis, The Twin Cities
Experience. I.Z/

One of the clearly land use-oriented components
of this package, the Airport Zoning Act, was designed to
control development around major airports. under its pro-
visions, the Council prepares criteria and guidelines for
development controls which must be implemented by municipal-
ities in their local zoning ordinances, subdivision controls,
and other similar land use control ordinances. L8J This
legislation was apparently passed at least in part as a
result of the failure of the Metropolitan Airports Commission
to exercise its power to zone land uses for one mile beyond
the boundaries of any airport. The Airports Commission,
according to the Citizens League, had always preferred either
condemnation of land uses incompatible with an airport or
persuasion of recalcitrant municipalities, apparently in
order to avoid testing its zoning powers which some members
of the Airports Commission thought might be declared takings
in their exercise. L9J

How the Council is Designed to Function--An Overview

The 1967 Act provides for a 15-member council, 14
appointed by the governor "on a nonpartisan basis, after
consulting with all members of the Legislature from the area
comprising the council district for which the member is to
be appointed." 2Q1 The fifteenth member is the chairman,
again appointed by the governor, this time at-large. The
statute requires that, "He shall be a person experienced in
the field of municipal and urban affairs with administrative
training and executive ability." IV

The major device for achieving coordination in the
metropolitan region is the system of mandatory referrals to
the Council required by statute. There are three types of
plan referrals:

1. From independent boards, commissions
and agencies.
2. From municipalities and counties. 22/

3. From an agency in the region applying
for federal funds.

140

In terms of areawide land use controls, the most
important of the above compulsory reviews is the one per-
taining to independent commissions, boards and agencies.
Most of these boards, commissions and agencies cannot act
except pursuant to a comprehensive plan. Furthermore,
their functions cannot be exercised by any other govern-
mental entity. Each comprehensive plan of such commission,
board or agency which the Council determines to have an
areawide, multi-community, or substantial metropolitan
development effect must, in turn, be submitted to the
Council before any action is taken to put such a plan
into effect. The Council has 60 days in which to review
the plan, after which it can presumably be implemented.
But if "the Council finds that a plan is inconsistent . . .
with its own comprehensive guide for the metropolitan area,"
or detrimental to the orderly and economic development of
the metropolitan area, "it may suspend the plan 22/ indefi-
nitely." The affected agency may then appeal to the
"entire membership" of the Council for a public hearing
and finally to the legislature at its next session. it
is this review function into which the Council has directed
the bulk of its energies. 2@1

The Council also is empowered to review the long
term comprehensive plans ". , . or any matter which has a
substantial effect on metropolitan area development" of
municipalities and counties in the seven-county region.
While the Council may suspend action on any such plan for
a period of 60 days following submission, such submission
is only for its "comment and recommendation." Where there
is a dispute among governmental units concerning such a
plan, the Council may also attempt to mediate. More it may
not do. 26/

The other key aspect of the Council's functions
is the preparation of the Metropolitan Comprehensive
Development Guide. The Guide is to be "a compilation of
policy statements, goals, standards, programs, and maps
prescribing guides for an orderly and economic development,
.public and private, of the metropolitan area." The Council
in the preparation of the Guide is specifically directed to
consider the development and impact of such matters as land
use, parks, open space land needs, airports, highways,
transit facilities, public hospitals, libraries, schools
and other public buildings..@@7
j It was anticipated that
the Council would use a previous draft prepared in part by
the Planning Commission to help formulate its revision of
the Guide. 2L8/ It is this Guide against which the Council
evaluates those plans and other matters submitted for its
review.

141

Finally, under both the 1967 Act and pertinent
federal legislation, the Council is empowered to review
applications for federal funds and to comment concerning
each application's conformity to metropolitan comprehensive
planning. Again, the comments are advisory only.2-9i
Further powers granted the Council under the 1967 Act are
coordination of civil defense, data collection, general
research on a wide range of metropolitan problems, and
preparation of certain reports.,LOJ

The Council is in part funded by an authorized
tax levy of one-half mill on all taxable property within
the seven-county area of its jurisdiction.,Llj The remain-
der of its budget comes from federal funds, many of which
are earmarked -L-or specific planning projects. 32/

The Council and the Commissions

The most important plans submitted for review are
those of the independent commissions, boards and agencies
which construct and operate facilities serving the entire
region. By the end of 1970 the Commission had reviewed 20
plans of such agencies. Only five secured unqualified
approval as submitted. @3

In order to implement the Council's review func-
tions concerning agencies, boards and commissions, the
legislature in 1969 passed a series of acts giving the
Council powers over a number of such bodies by providing
for Council approval of their membership and finances as
well as their plans. 1:1/ Such agencies thus become for
all practical purposes the functional arm of the Council,
carrying out its broad plans as depicted in the Development
Guide. However, in 1971 the legislature refused to grant
to the Council certain powers and functions it sought to
increase and consolidate its growing metropolitan powers.

one such agency created under the 1969 legisla-
tion is the Metropolitan Sewer Board. The Board was
created so that, together with the Council, it "can take
overP acquire, construct, operate, and maintain all inter-
ceptions and treatment works necessary for the collection,
treatment and disposal of sewage in the metropolitan area."
The seven-man Board is "established-as an agency of the
Council," which appoints its members. 35 The Council is
assigned the responsibility of carrying on a continuing,
long range planning program with respect to sewage

- 142 -

collection, treatment and disposal..@6/

The.Board is then authorized to acquire all inter-
ceptors and treatment works needed to implement'the Council's
plan. Indeed, the Board may require such a transfer of
owihership from any local government unit, and the employees
of such system become Board employees after the transfer
date. IZ/ Thus the Council, through the Board, has complete
control of sewer facilities in the metropolitan region.
The sewer plan of the Metropolitan Sewer Board, discussed
earlier, which the Council took part in formulating, was
the most immediate and pressing of the plan reviews. As of
January 1, 1971, the Sewer Board has taken over 30 existing
district and municipal treatment plants, and 320 miles of
connecting interceptors. Moreover, 70 development projects
are either under construction or in preparation, including
the building of two treatment plants on the Minnesota River. 182

Relations between the Metropolitan Sewer Board and
the Council have generally been good. But even the oldest
of the functional agencies apparently resents the Council's
attempt to become more involved in the implementation of its
plans rather than their coordination. L9J There was
apparently some dissension over the contents of the Sewer
Board's recent five-year capital improvement program.
According to Richard Dougherty, Chief Administrator of the
Board, the Council has been inquiring into the details of
some of the Board's supporting studies, rather than confin-
ing itself to merely ascertaining that a study was in fact
made. i2o/

In all fairness, it is worth noting that the Sewer
Board has had its own problems with community relations
outside the immediate metropolitan region. However, accord-
ing to Dougherty, these should be alleviated by the estab-
lishment of a Speaker's Bureau to represent the Board at
local council meetings. Al
J On a technical level, it
would appear that the Sewer Board is accomplishing the
environmental clean-up that it was created to do. According
to Dougherty, the B-coli bacteria count on the Mississi i
ppi
River is the lowest it has been since 1934. A2/

The Metropolitan Park Board was similarly created
in 1969 to acquire and manage park property (especially
open space) in accordance with a Council comprehensive
open space and recreation plan. Again, the Council was to
appoint members of the Board and approve its budget. 1@1
Unfortunately, the Act was invalidated by court decision
later in 1969, and the Board has subsequently acted in a

- 143

purely advisory capacity to the Council. A.Al

Legislation was again introduced in the 1971
session to make the advisory Metropolitan Park Board into
a public corporation with a separate staff organization.
Such a public corporation would have had the power to
independently contract with state, local and federal
agencies. IV Under such contracts the Metropolitan Park
Board,would have assumed control over park space owned by
any metropolitan area governmental unit. It was further
intended that the Board have power to acquire parks and open
space by eminent domain, if necessary, in accordance with
the Metropolitan Park Reserve Plan or the Metropolitan Open
Space Plan. Furthermore, each local governmental unit in.
the metropolitan area would have been required to adopt a
comprehensive park plan subject to both Metropolitan Park
Board and Metropolitan Council review. 46

However, the bill failed to pass by one vote. it
has been suggested that the failure to pass was due to
general resistance to extension of Metropolitan Council
authority in the 1971 session (discussed infra) and the op-
position of the Metropolitan Inter-County Council (organized
as a political counterweight to the Metropolitan Council)
which favors county control of parks. It is hoped that some
sort of compromise can be worked out in future sessions.

According to Gerard Hegstrom of the Park Board,
continued advisory status would seriously hinder the activi-
ties of the Board. Apparently pressures.of land development
in the metropolitan region are very great, and Hegstrom
feels the need for Board powers of acquisition and the
necessary funds therefor, so that adequate open space can
be acquired before it all disappears. Presently the Board
relies heavily on municipal and county acquisition programs
which, according to Hegstrom, have been sporadic. Some local
government units are not interested7 others lack funds. There
is apparently some reluctance on the part of outlying counties
to spend money for extensive open space accrilisition for what
they see as parkland for the, urbanites. 4V
By legislative act the Metropolitan Airports
Commission is solely responsible for the planning and siting
of airports in the metropolitan area. However, it is re-
quired to prepare comprehensive plans for such siting and
location--which plans must be,approved by the Metropolitan
Council before the airport can be built. L9J The formula
for control is simple, but effective': No construction
without a plan, and that plan requires Council approval.

144 -

The Council also must formulate guidelines for land use
within the area around the site. Local governmental units
must then obtain Council approval for all land use regula-
tions within that radius . @Y The Council has no functional
Board to execute its plan here, however. Responsibility
for acquisition and management of the site theoretically
remains with the Airports Commission. The Council has no
control over either the budget or membership of the Metro-
politdn Airports Commission. Nor does it have any affirmative
power of site location for an airport..@@11/

The Council's authority through its review power
is virtually absolute, however. In fact, perhaps the most
publicized review ever made by the Council was that of the
Metropolitan Airports Commission plan to construct an
airport at Ham Lake. The Council suspended that plan in
April of 1968, first in order to ascertain effects on the
region's Jordan Basin water supply, and second because it
did not feel that other sites had been adequately analyzed.
The Council then received studies concerning fog, air space,
accessibility, and ecological impact. The Council again
suspended the plan, near the end of 1970, effectively halt-
ing all plans for development. L2J

According to Henry Kuitu, Executive Director of
the Metropolitan Airports Commission, the Council has
seriously overstepped "the bounds of its authority." @@
Kuitu sees the Council's review functions vis-a-vis the
Commission as a determination of whether the Commission's
plans fit into the Council's plan for the orderly and
economic development of the metropolitan area. According
to Kuitu, the Council has gone beyond these issues and
attempted to decide whether there should be a second airport
at all, and if so, where it should go. Kuitu feels the
Council has been unduly influenced by major airlines, at
least one of which reportedly favors but one airport in the
Twin Cities area, and by its conservationist tendencies
which leads the Council to favor airports near "proposed
diversified centers" rather than near wildlife and recrea-
tional areas, where the Commission would like to see one.
Needless to say, Kuitu sees the Council's attempt to seize
the initiative in airport sites as a power grab, to spur
legislation aimed at eventually eliminating the Metropolitan
Airports Commission's autonomy. @4/

Part of the tension between the Council and the
Commission could perhaps be eliminated by the expansion
of the Council's Development Guide to include a jointly-
drafted section on airport site development. Indeed,

145

according to a member of the Commission's staff, such a
joint effort is being made and may be completed in eight to
18 months. @V

Meanwhile, on August 27, 1971, the Council and
the Commission agreed to appoint a joint committee to
oversee an airport systems study, in an attempt to "thrash
things out with the Council." @6
_@ Hopefully, a solution
will soon be forthcoming. According to Kuitu, the Twin
Cities' airport will reach its capacity by 1980, and the
lead time necessary to establish a new airport facility
is 10 to 15 years. 57/

The Metropolitan Council has similar review
functions concerning the Metropolitan Transit Commission,
which retains a degree of semi-autonomy similar to that
of the Metropolitan Airports Commission. Its plans and
budget are reviewable by the Council, but its members are
appointed by state and local officials. 18J That portion
of the Development Guide dealing with mass transportation
is in fact the result of a joint effort between the Transit
commission and the council. L9J Most of the Commission's
programs are still in the planning stage, which, according
to staff members, is one reason why conflicts with the
Council have so far been minimal. The Commission apparently
feels, however, that its present degree of autonomy should
be retained as long as the Council remains an appointed
body.

The Council also has the long range planning
burden together with some review powers concerning highway
construction. It cannot, however, halt such construction
by means of unfavorable review, nor has it any board or
agency of its own for operations in this area._@_1/

Presently, no one agency has statutory authority
to finally coordinate highway transportation in the
metropolitan area. For the past two years a voluntary
association of affected agencies and governmental units,
the Transportation Planning Program, has attempted to
provide such coordination. The Transportatiori Planning
Program is made up of affected municipalities, counties,
the Council, the Metropolitan Transit Commission, and the
State Highway Commission. L2J Key decisions are appar-
ently made by its Management Committee, consisting of the
chairmen of the three agencies noted above, and one
official each from the League of Metropolitan Municipali-
ties and the'Metropolitan Inter-County Council._�@3 By

146

agreement among the Program participants, it has been
suggested that the Council take prime responsibility in
the area of coordinating transportation. �@/ While the
Metropolitan Planning Commission has no objection to that
proposal, �5/ there is apparently a good deal of resist-
ance on the part of the counties and municipalities
that wish to retain a substantial role in transportation
planning and see some advantage in the continued.dialogue
at the Management Committee level among the five interests
represented there. 66/

The Council also must approve the comprehensive
plan of a state board created in the 1969 legislative
package, to plan, acquire, construct and operate a zoologi-
cal garden (zoo) in the metropolitan area. As with the
location of an airport, the Council must approve the site
location as well as the general development plan submitted
by this board., otherwise, as with the Metropolitan Transit
Commission, the board is wholly independent of the Council
both in terms of membership and financing. �7/

Metropolitan DeIvelopment Guide
All of the functional plans which the Council is
required to prepare are to be part of the Metropolitan
Development Guide, the preparation of which is a prime
Council responsibility under the 1967 Act. Physically,
the Guide is a series of segments printed in separate
booklets, each dealing with a particular subject to which
the Council has directed its efforts. Six such booklets
have gone through their public hearings and have been
approved by the Council. Three are printed in final form.,
and three are still in draft. �8/ These six cover the
areas of solid waste management, sanitary sewers, parks
and open space, transportation, housing, and major
centers.,�9/ Each segment is divided into parts setting
out the long range policies, the system plan, and a
development program summary and timetable. 7
221

That part of the Guide dealing with sanitary
sewers was the first of the segments produced and published,
and illustrates the basic concepts behind the Guide. Under
long range policies, the Council has articulated twenty-
five policy statements under the following general headings: 21

Multiple Use of Water Resources
Water Quality Control
On-Lot Sewage Disposal
Interim Treatment Works

147

Priorities for Extending Sewers
Orderly Urban Growth
Governmental Capacity to Serve Urban Development
Protection of Land That Should Not Be Developed
Service Area Boundaries
Adequate Sizing of Facilities for Service Areas
Compatible Development

An example of such policy statements is number 17, under the
heading of Priorities for Evaluating Sewers: 22/

17. EVALUATE PLANS AND PROGRAMS FOR PROVIDING
CENTRAL SEWER SERVICE TO URBAN AREAS
ACCORDING TO THE FOLLOWING SET OF
PRIORITIES:

FIRST - SERVE EXISTING DEVELOPMENT THAT
IS SUBJECT TO IMMEDIATE THREATS
TO PUBLIC HEALTH OR SAFETY, OR
THAT IS PRODUCING-SERIOUS
POLLUTION OF NATURAL RESOURCES.

SECOND SERVE AREAS THAT ARE SCHEDULED
TO BE OPENED UP FOR DEVELOPMENT
WITHIN FIVE YEARS CONSISTENT
WITH OTHER METROPOLITAN DEVELOP-
MENT POLICIES, GIVING TOP
PRIORITY TO HIGHER DENSITIES
AND-LOWER PRIORITY TO LOWER
DENSITY DEVELOPMENT.

THIRD SERVE REMAINING DEVELOPMENT THAT
REQUIRES SEWERS.

There follows a system plan which is divided into
four parts: 1. Metropolitan Disposal System - Interceptors,
Metropolitan Disposal System; 2. Treatment Works; 3. Peri-
pheral Regions; and 4. Local Collection System. Under each,
individual systems are discussed and evaluated, and plans
for the region, together with its major problems, are
explained. 2_@l Finally, the program to be followed in
order to meet the objectives listed in the first part is
set forth. The metropolitan sewer program is divided into
long range and short range objectives, such as, "Eliminate
on-lot sewerage facilities in urban areas," and, "Study the
up-grading of Spring Lake." Deadlines are set for various
groups of objectives. Maps depicting the region and proposed
sewage treatment works, service areas and interceptor corri-
dors, together with a list of definitions, are appended at
the end.

14 8

As the various segments of the Development Guide
are drafted and approved it becomes increasingly useful to
the Council by providing standards against which the Council
can measure the plans of other agencies that are submitted
to it for review.

The reactions to the Guide on the part of operating
agencies have not been uniformly positive. Richard Dougherty,
of the Metropolitan Sewer Board, feels the Guide is altogether
too general. He has characterized that portion dealing with
sewers as pieces of high school texts on sewers pasted together
and labeled "guide." 75/ Likewise, John Jamieson of the
Metropolitan Transit Commission reported that the Council staff
had sent its revision of the mass transportation section of the
Guide to the full Council without waiting for the Commission's
drafts, although that portion.of-the Guide was ostensibly to
be a joint effort. 76/ Paul Dow, Executive Secretary of the
Metropolitan Section of the League of Municipalities, claims
the guides are so vague that no one knows what they mean, nor
will they know until the various functional agencies thrash
out the details. 22/

However, according to local government officials
like William Schwab, Planning Coordinator of Washington County,
the functional agencies themselves appear to be uncertain as
to the interpretation of the Guide. This has made it difficult
for counties and other governmental units to formulate their
own programs. 28/ Another criticism has been that the Guide
has been put together in a piecemeal fashion, though the critic
in this instance appreciated the likelihood of obsolescence if
the entire Guide was withheld until all its parts were com-
plete. 2-9/

Review of Local Governmental Unit Plans

The Council's power to review and in some cases
suspend the plans of local governments and their agencies is
its most time-consuming job. The vast majority of the plans
submitted for review are applications for federal and state
grants submitted by local governments, in which the role of
the Council is strictly,advisory. While it is difficult to
measure the effectiveness of the grant review process, the
Council staff claims some success. Upon the Council's
recommendation, the Southwest Sanitary Sewer District modi-
fied its plans for interceptors and plants to oversize both
so as to serve a larger area than was originally intended.
In another instance, the design of an interchange to grant a
municipality access to a major highway was modified through
Council review to provide safer traffic patterns. 80/

149

A much smaller number of comprehensive plans of
local governments are submitted for review, and here the
staff feels its review has-often been quite helpful. An
example is the review of the City of St. Louis Park compre-
hensive plan. At the request of the newly incorporated
Village of Golden Valley, a hearing on the plan was held by
the Council. It appears that a particularly high density
apartment and office development planned by St. Louis Park
would considerably overload existing or planned highway
facilities in the area, affecting not only Golden Valley
but the Villages of P 'lymouth and Minnetonka as well.
Following the hearing, the Council, the state highway
department, the affected county housing department, and the
four affected municipalities held a series of meetings to
consider, among other things, a broader analysis of the
area. It was apparent that the proposed development would
result in substantial congestion of local highways. Recom-,
mendations were made to the municipalities in the area to
develop arterial and collector streets patterned to relieve
the traffic congestion problem. However, a final action
depends on the municipalities in this instance since the
Council review and recommendation has no suspensory effect
on municipal plans of this nature. 2-1/

The Council claims total disinterest in local
matters except and unless they have a significant regional
impact, in which case such matters can be substantively
dealt with in the Development Guide and by means of inde-
pendent agencies. According to the Council, of the existing
municipalities, only Minneapolis and St. Paul are large
enough to affect the region by what may appear to be local
decisions, and only newly incorporating municipalities
cause truly regional problems by reason of providing in-
sufficient municipal services and controls (building codes,
planning, etc.) to adequately serve residents. g2 Here,
the Council is able to apply c6nsiderable pressure without
a word of new legislation, simply by refusing to include
the recalcitrant municipality in regional sewer extension
plans--and precious little development will take place
without sewer and water systems.

While.the Council appears pleased with its powers
of persuasion, delay, or control (for all practical purposes)
over aspects of local government planning and development,
the local government units themselves are not. g@l Outlying
rural regions in the metropolitan region especially feel they
are being used to finance programs with a decidedly urban
orientation. These areas view the Council's activities as

150

reflecting a preoccupation with urban problems--those of the
Twin Cities. g.4/ In that case, so goes the argument, perhaps
the Council's authority ought to be restricted either to an
area closer to the Twin Cities or to those matters within the
boundaries of the urban areas in the Twin Cities region,
excluding unincorporated county territory altogether. P_@/

A major problem appears to be one of public rela-
tions. The Council is apparently increasingly aware of its
role as experimenter in the eyes of the nation's planners,
and, according to one critic, increasingly "up-tight" in its
attitude toward criticism. The result, according to this
critic, is a tendency toward preoccupation with technical
aspects of its programs and insufficient effort expended in
selling its programs to the people. L6J As a result, local
governmental units feel increasingly isolated from the
Council's programs. P2/ This feeling is apparently par-
ticularly acute with respect to the counties.. P.@/ While
the Council does maintain close ties with the Metropolitan
Inter-County Council and the League of Municipalities, it
does not itself maintain contact with local units of govern-
ment on specific items of planning and implementation. .9.9-j

Moreover, the Council's powers to accomplish
certain of its goals by means of its review-.function with
respect to federal funds applications has not:,been lost on
local-government units within the metropolitan area. There
is concern that this power will be utilized not only to
check incompatible plans and programs at the local level,
but also to force affirmative action. According to an
official with the League of Municipalities, the Council
contemplates giving a low priority to federal funds appli-
cations made by any municipality that does not provide for
adequate low- and moderate-income housing. 2V in summary,
the charges levied at the Council are that it tries to
implement plans or to intrude into detailed planning at
the local level. As local-government units understand the
Council's role, it should instead coordinate general plans
for the region. 2V

Recent Developments in the Legislature

The Metropolitan Council's treatment at the hands
of the 1971 session of the Minnesota Legislature can only
be described as mixed. On the positive side, the Council-
proposed Fiscal Disparaties Bill passed. The bill provides

151 -

for the contribution of 40% of each local-government unit's
net growth of commercial-industrial valuation after 1971 to
the Council. These receipts will be redistributed to the
units, primarily according to population and,.presumably,
need. 22/ As noted earlier, the right to review and comment
upon county comprehensive plans has been added to the
Council's existing power to so review municipal plans. It
will be recalled that the Council has no power to permanent-
ly delay the execution of such plans by its failure to
approve them. 2@/ Moreover, major amendments to the com-.
prehensive plans must also be transmitted to the.Council for
review. 24/

The Council also received part of its proposed
housing package designed to relieVe what it sees as an
impending housing crisis (the need for an annual housing
production of 21,000 units, 12,500 of which should be avail-
able to households with incomes of $7,000 or less per year).
The legislature passed bills creating a state model building
code 2V and a state housing finance agency. 26/

on the minus side, the Council lost a major part
of its housing package with the death of its Metropolitan
Housing Board Bill at the end of the 1971 session. 2V The
proposed bill would have created an agency, under the
Council, to stimulate and coordinate low- and moderate-
income housing projects in the metropolitan area. The
agency would have been empowered to acquire land for use
in low- and moderate-income housing development programs
and to make such land available by sale or lease to public
and private housing developers at a reduced price.

The Council would have had mandatory review powers
over the plans of local housing authorities in order to
ensure the consistency of the local plans with the overall
metropolitan housing plan. However, all urban renewal and
housing code enforcement programs would have been reserved
exclusively to the municipal government. Before carrying
out any agency-owned and constructed project, the agency
would have had to seek approval from any municipality in-
volved. If such approval were denied, review by a special
appeals board would have been possible. The agency would
have been granted a tax of one mill to support its
functions. 2-8/

The governor favors the establishment of such an
agency, but enabling legislation, which it was hop ed would
be passed as part of a general compromise package with

452-329 0 - 72 - 11

- 152

regard to the main legislative hassle confronting the
legislature in special session--namely., the gubernatorial
veto of the state tax and finance bill--failed to material-
ize. 29/ (Presently thb'Council exerts influence on
housing planning through a 27-member Technical'Advisory
Committee on Housing and through the Housing Chapter of
its Development Guide. IPO/)

Another major casualty was the Metropolitan Parks
Board Bill, ;S11 which failed to pass in the regular
legislative session@by a single vote. jp2
/ In part, its
failure was said to be due to general opposition to the
extension of Metropolitan Council power and to the opposi-
tion of the Metropolitan Inter-County Council, established,
it will be recalled, to counteract that power. 103/

The legislation would have made the Metropolitan
Parks Board a public corporation with all the requisite
righ.ts, powers, privileges and duties appurtenant thereto.
it would have authorized the creation of a Metropolitan
Parks Board staff with all the rights and duties conferred
upon public employees under Minnesota Statutes, Sections
179.50 and 179.51.

The Metropolitan Parks Board would have been given
the power to contract with local-government units and state
and federal agencies as provided in Minnesota Statutes,
Section 471.59. Under such agreements, theMetropolitan
Parks Board would have been allowed to assume control over
any park space-owned by any governmental unit.

It would also have been granted the authority to
acquire property in accordance with the Metropolitan Park
Reserve Plan or the Metropolitan Open Space Plan and would
have had the right to eminent domain provided for in
Minnesota Statutes, Sections 117.01-117.202. However, the
Metropolitan Parks Board would still have been prohibited
from taking a private person!s homestead, as that term is
defined in Chapter 510, Minnesota'Statutes.

Each local governmental unit in the metropolitan
region would have been required to adopt a comprehensive
park plan subject to Metropolitan Parks Board and Council
review.

This bill, like the housing bill, was supported
by the governor, but an expected compromise measure failed
to materialize. (One suggested compromise had been a

153

consolidation of the counties' interests in parks,
coupled with Council review of their consolidated acqui-
sition program.) IQ4/

Of potentially greater significance was the
refusal of the legislature to grant t 'he Council increased
control over the relatively autonomous Metropolitan Airports
and Transit Commissions. IQ51 Coupled with the legislative
refusal to make the Council an elective body, it may well
mean that concerns about the Council's growing power are
manifesting themselves in the legislature as well as in the
administrative agencies and local-government units with
which the Council deals. 126/ It has been suggested that
this attitude coupled with legislators' fears that an
elected Council will be more powerful than they in dis-
tricts "represented" by both bodies, has not only,resulted
in a defeat of the elective-Council bill, but also served
as a further rationale for failing to grant added powers
to the Council on the ground that a non-elective body should
not be-too powerful! 107/

Future Plans

Nonetheless, the Council has selected further major
areas of concentration, including what it calls critical'
areas of social concern--such as health and criminal justice,
with Guide "programming" as the goal. Major study items
will also include transportation, water resources, and plan
implementation. Council planners feel that the Council has
"'llwon" its right to go into.some of these critical areas by
successfully planning solutions for those problems the
solution to which has perhaps traditionally been sought from
planning agencies, such as solid waste disposal and sewers.
Moreover, the Council has gone a step further by pressing
successfully for the creation of implementing agencies and
commissions,to execute these plans, providing, according to
its administrators, that such a system can function in the
social problems area.

For all of its powerover the/actual use of land
in the,metropolitan area, the one concept which emerges most
clearly from discussions with the Council's administrators
is their expressed intention to remain in the policy-making
sphere and to avoid being drawn into the implementation of
functional programs on a day-to-day basis, notwithstanding'
the concerns voiced by local-government agencies and com-
missions concerning internal meddling'by the Council. The

154 -

Council maintains that it prefers to remain free to plan and
control activity in hitherto untouched, non-physical areas--
like criminal justice--rather than bog down in the running
of the programs it creates. 108/

An additional reason for this avoidance of imple-
mentation problems is that the Council itself claims it
lacks the money to actively execute all its own plans. The
agencies are separately funded, and if the Council is
temporarily strapped for a particular planning project, one
of its agencies conveniently "hires" it to make the study or
plan, thus providing a source of back-door financing. 199/

But the administrators realize the solutions might
not be so easily forthcoming for fundamental social problems.
A major problem may well be one of expertise--the degree to
which Council staff is capable of grappling with such issues.
Once again, the Council will not actively attempt to execute
solutions, but rather to improve the decision-making process. LLY

The Council has the power to affect considerably
land use in the metropolitan area of the Twin Cities.
Entirely aside from specific instances like site location
control of, and land use standards pertaining to, land uses
surrounding airports, the entire concept of mandatory plan
referral and approval, without which implementation is
legally prohibited, provides an effective means of prevent-
ing many types of land use.

It is nonetheless quite clear that the metropolitan
area is taking another look at its metropolitan government.
With dissatisfaction not only among local-government units
and in the legislature, but also within the ranks of the
Council's "family" of executory commissions, the Council
would do well to look to its defenses, regardless of the
causes for complaint. The last legislative session has
demonstrated a temporary unwillingness to increase the
authority of the Council in a number of key areas. Presum-
ably the Council will overcome its present problems, refur-
bish its image among those agencies and units with which it
works, and continue to provide the coordination necessary
to successfully undertake a solution to the land use problems
of the Twin Cities metropolitan region.

Finally, it is worth noting that the attempt to
regulate land use by means of reviewing a metropolitan govern-
mental unit's capital improvements plan is a unique

155 -

device among those examined in this report. This techniqu e
and the experience of the Metropolitan Council raises some
interesting issues. First, there is the conflict between
the elected Legislature and the appointed Council. Is this
an inherent difficulty which would only be exacerbated by
increasing the Council's power, or by making it elective?
Second, the control of capital improvements, such as location
and construction of sewer.systems in the metropolitan region,
delegated to the Council by the legislature clearly gives
the Council considerable leverage on the location of development
in general--a power not delega ted to it by the legislature.
While the practical effect of the exercise of this key power
may very well be to limit all phases of land development, it
is not clear that such control can be legally exercised.
The power to tax has generally provided a similarly big
lever to regulate tbesubject taxes, but courts have
generally struck down such attempts of regulation via the
taxing power, on the ground that its purpose is to provide
revenue.

How the Metropolitan Council approaches and
finally resolves these issues may well determine its ultimate
success in regulating land use in the Twin Cities region.

156

FOOTNOTES

Metropolitan Council Act, Minnesota Sessions Laws 1967,
Ch. a96, �1.

Prepared Statement of Albert J. Hofstede, Chairman,'
Metropolitan Council BEFORE THE SUBCOMMITTEE ON URBAN
AFFAIRS, JOINT ECONOMIC COMMITTEE OF THE U.S. CONGRESS
HEARINGS ON REGIONAL PLANNING ISSUES,,May 26, 1971,
at pp. 750 and 756; "Where Regional Planners Call the
Shots," BUSINESS WEEK, February 21, 1970.

Statement of the Metropolitan Council BEFO RE THE SUB-
COMMITTEE ON COORDINATION OF SERVICES IN THE METRO-
POLITAN AREA OF THE HOUSE COMMITTEE ON METROPOLITAN
AND URBAN AFFAIRS, November 24, 1969, at p. 1.

Id.; Metropolitan Council Act, Minnesota Sessions Laws
1967, Ch. 896, �6, Subd. 1.

1969-1970 Biennial Report to the Minnesota Legislature,
Metropolitan Council, 1971, at p. 3.

Stanley Baldinger, PLANNING AND GOVERNING THE METROPOLIS;
THE TWIN CITIES EXPERIENCE, New York: Praeger Publishers,
Ill. 1971 (286 pages), at pp. 77-78; "Where Regional
Planners Call the Shots," BUSINESS WEEK, February 21,
1970, at p. 72; Ted Kolderie, "Strategies," CITY,
August 1969, at p. 36.

Ted Kolderie, "Strategies," CITY, August, 1969, at p. 36.,

Id.

John Fischer, "The Minnesota Experiment: How To Make A
Big City Fit To Live In," HARPER'S MAGAZINE, April,
1969.

_LO/ Ted Kolderie, "Strategies, 11 CITY, August, 1969, at p. 36.

Summary of comments and Proposal on Areawide Governmental
Problems of the Twin Cities Metropolitan Area, Citizens
League (1966), pp. 3-67 Prepared Statement of Albert J.
Hofstede, Chairman, Metropolitan Council BEFORE THE
SUBCOMMITTEE ON URBAN AFFAIRS, JOINT ECONOMIC COMMITTEE
OF THE U.S. CONGRESS HEARINGS ON REGIONAL PLANNING
ISSUES, May 26, 1971, at pp. 750 and 756.

157 -

L2J A Metropolitan Council for the Twin Cities Area,
Citizens League (1966), pp. 16-18; Prepared Statement
of Albert J. Hofstede, Chairman, Metropolitan Council
BEFORE THE SUBCOMMITTEE ON URBAN AFFAIRS, JOINT
ECONOMIC COMMITTEE OF THE U.S. CONGRESS HEARINGS ON
REGIONAL PLANNING ISSUES, May 26, 1971, at p. 756.

_L3/ Baldinger, 2a. cit. note 6, at pp. 91-162; Prepared
Statement of Albert J. Hofstede, Chairman, Metropoli-
tan Council BEFORE THE SUBCO1*1MITTE E ON URBAN AFFAIRS,
JOINT ECONOMIC COMMITTEE OF THE U.S. CONGRESS
HEARINGS ON-REdIONAL PLANNING ISSUES', May 26-,,1971,
at pp. 754-755.

.L4J summary of Comments and Proposal on Areawide Govern-
mental Problem's of the Twin Cities Metropolitan Area,
Citizens League, (1966) at pp. 15@17.

15/ "Where Regional Planners Call the Shots,,- BUSINESS WEEK,
February 21, 1970,@ at p. 72.

_L6J Ted Kolderie, "Strategies," CITY, August, 1969, at p. 36;
John Fischer, "The Minnesota Experiment: How To Make A
Big City Fit To Live In," HARPER'S MAGAZINE, April,
1969.

Stanley Baldinger, PLANNING AND GOVERNING THE METROPOLIS,
THE TWIN CITIES EXPERIENCE, New York: Praeger Publishers,
Ill. 1971 (286 pages).

L8J Airport zoning Act, Minnesota Sessions Laws 1969,
Ch. llll;.Statement-of the Metropolitan Council BEFORE
THE SUBCOMMITTEE ON COORDINATION OF SERVICES IN THE
METROPOLITAN AREA OF THE HOUSE COMMITTEE@'ON METROPOLI-
TAN AND URBAN AFFAIRS, November 24, 1969,-at pp. 7-8.

L9/ New Airports for the '70s (And After), Citizens League
Report prepared by the Citizens League Airports
Committee, October 15, 1969, at pp. 29-30.

Metropolitan Council Act, Minnesota Sessions Laws 1967,
Ch. 896, �2, Subd. 3.

_L1J Id., Subd. 4.

22/ The power to review county plans was just granted by
the 1971 legislative session. Minnesota Sessions Laws
1971, Ch. 541.

158

_@3
Except that the Council is prohibited by statute from
suspending plans pertaining to the location and
construction of regional sewer plants, or the expansion
of the Twin Cities district treatment plant. �6,
Subd. 6(2).

metropolitan Council Act, Minnesota Sessions Laws 1967,
Ch. 896, �6, Subd. 6.

_@5/ Statement of the Metropolitan Council BEFORE THE SUB-
COMMITTEE ON COORDINATION OF SERVICES IN THE METROPOLI-
TAN AREA OF THE HOUSE COMMITTEE ON METROPOLITAN AND
URBAN AFFAIRS, November 24, 1969, at p. 4.

_@6
Metropolitan Council Act, Minnesota Sessions Laws 1967,
Ch-. 896, �6, Subd. 7.

_2L7/ Id., Subd. 5.

_L81/ "Metro Council Replaces MPC", MPC NEWSLETTER, August,
1967.

29/ Metropolitan Council Act, Minnesota Sessions Laws 1967,
Ch. 896,,�6, Subd. 8.

301 Metropolitan Council Act, Minnesota Sessions Laws 1967,
Ch. 896, �6, Subd. 9-13; �7, Subd. 1-12.

_Ll/ Metropolitan Council Act, Minnesota Sessions Laws 1967,
Ch. 896, �8.

_L2j Summaries of Acts of the 1969 Minnesota State Legislature
in Which the Council-Was Principal Sponsor (published
by the Metropolitan Council of the Twin Cities Area),
at P. 1.

1969-1970 Biennial Report to the Minnesota Legislature,
Metropolitan Council, 1971, at pp. 29-30. IL

_14J Ted Kolderie, "Strategies," CITY, August, 1969, at p. 31.

.@5/ Metropolitan Sewer Act, Minnesota Sessions Laws 1969,
Ch. 449, �3, Subd. 1; �6.

.@6
j Id., �1.

17/ Id., �5, Subd. 1-5.

1969-1970 Biennial Re-port to the Minnesota Legislature,
Metropolitan Council, 1971, at pp. 29-30.

159

19J Interview with Richard Dougherty, Chief Administrator,
Metropolitan Sewer Board, August 26, 1971, St. Paul,
Minnesota.

40/ Id.

Al/ Id.

A2/ Id.

A3/ metropolitan Park Board Act, Minnesota Sessions Laws
1969, Ch. 1124.

A4/ 1969-1970 Biennial Report to the Minnesota Legislature
Metropolitan Council, 1971.

Cf. powers granted such corporations by means of Min.
Stat. �� 179.50-179.571.

A6/ Metropolitan Park Board Bill, Senate File No. 6, first
engrossment.

Interview with Gerard Hegstrom, Secretary, Metropolitan
Park Board, August 26, 1971.

A8
j Id.

A9/ Metropolitan Council Act, Minnesota Sessions Laws 1967,
Ch. 896; Airport.Zoning Act, Minnesota Sessions Laws
1969, Ch. 1111.

Airport Zoning Act, Minnesota Sessions Laws 1969, Ch.
�1, Subd. 1 and 2.

Summaries of Acts of the 1969 Minnesota State Legislature
in Which the Council Was Principal Sponsor (published
by the Metropolitan Council of the Twin Cities Area),
at p. 1; Interview with Henry-Kuitu,. Executive Director,
Metropolitan Airports Commission, August 25, 1971, St.
Paul, Minnesota.

1969-1970 Biennial Report to the Minnesota Legislature,
Metropolitan Council, 1971, at pp. 13, 29-30; Statement
of the Metropolitan CounciLBEFORE THE SUBCOMMITTEE ON
COORDINATION OF SERVICES IN THE METROPOLITAN AREA OF
THE HOUSE COMMITTEE ON METROPOLITAN AND UR13AN AFFAIRS,
November 24, 1969, at pp. 1 and 4..

160 -

.@.32 Interview with Henry Kuitu, August 25, 1971.

_@4
Id.

55/ Interview with Henry Kuitu, and members of staff of
Metropolitan Airports Commission, August 25, 1971.

16/ Op. cit., note 53.

.@7
Id.

_L8/ Baldinger,'pp. cit. note 6,,at pp. 183-186; interview
with John Jamieson, Director of Planning, and'Messrs.
Fasel and Meyer, members of staff, Metropolitan Transit
Commission, August 26, 1971, St. Paul, Minnesota;
Minnesota Sessions Laws 1971i Ch.'30, �8.

.@9/ Interviews with Messrs,.'Jamieson, Fasel and Meyer,
August 26, 1971.

_@02 Id.

Summaries of Acts of the 1969 Minnesota State Legisla
ture-in Which the Council Was Principal Sponsor (pub-
lished by the Metropolitan Council of the Twin Cities
Area), at p. 1; Highway (Local Concert) Act, Minnesota
Sessions Laws 1969, Ch. 312.

_@2
Policy of the Board of Directors re: Transportation
Planning Program, Metropolitan Section, League of
Municipalities, approved August 3, 1971, at p. 1

_@3/ Interview with Calvin;dlark, Research Associate,
Citizens League, August 24, 1971.

_@4/ Id.

.@@5/ Interviews with Messrs. Jamieson, ralse'land Meyer,
August,26, 197l.;

icer, Carver
interview with Orwin Pierson, Zoning Off
County, August 24, 1971,' Chaska, Minnesota; interview
with Paul Dow, Executive Secretary, Metropolitan
Section, League of Municipalities, August 25, 1971,
Minneapolis.,.Minnes1o4ta.

e
Stat' Zoo Act, Minnesota Sessions Laws 1969, Ch. 868;
Summaries of Acts of the 1969 Minnesota State Legisla
ture in Which the Council Was Principal Sponsor
(published by the Metropolitan Council of the Twin
Cities Area).

161

Director of
Interview with Robert Einsweiler, former
Planning, Metropolitan Council, March 23, 1971, St.
Paul, Minnesota.

@@9 Metropolitan Development Guide: Solid Waste Management,
adopted by the Metropolitan Council, March 12, 1970;
Metropolitan Development Guide: Sanitary Sewers, adopted
by the Metropolitan Council, January 22, 1970;
Metropolitan Development Guide: Parks and Open Space,
adopted by the Metropolitan Council, June 25, 1970;
Metropolitan Development Guide: Transportation, draft
for purposes of public hearing; Metropolitan Development
Guide: Housin , draft for purposes of public hearing;
Metropolitan Development Guide: Mai or Centers, draft
for purposes of public hearing.

201 Eq., Metropolitan Development Guide: Solid Waste
Management, adopted by the Metropolitan Council, March
12, 1970, at pp. 3, 13 and 21.

211 Metropolitan Development Guide: SanitarV Sewers, adopted
by the Metropolitan Council, January 22, 1970, at pp.
4-16.

_L2/ Id., at pp. 1.0_11.@

231 Id., at pp. 16-30.

241 Id., at pp. 31-37.

_L5/ interview with Richard Dougherty, August 26@ 1971.

_Z6/ Telephone interview with John Jamieson, September 7,
1971.

27/ Interview with Paul Dow, August 25, 1971.

_28/ Interview with William Schwab, Planning Coordinator,
Washington County, August 27, 1971, Stillwater,@Minn.

79 Interview with Paul Dow, August 25, 1971. -

@10
Statement of the Metropolitan Council BEFORE THE COM-.
MITTEE ON COORDINATION OF SERVICES IN THE METROPOLITAN
AREA OF THE HOUSE COMMITTEE ON METROPOLITAN AND URBAN
AFFAIRS,@ November 24, 1969, at pp. 2-3; 1569-1970
Biennial Report to the Minnesota Legislature, Metro-
politan Council, 1971, at pp. 28-29.

162

Llj Statement of the Metropolitan Council BEFORE THE SUB-
COMMITTEE ON COORDINATION OF SERVICES IN THE METROPOLITAN
AREA OF THE HOUSE COMMITTEE ON METROPOLITAN AND URBAN
AFFAIRS, November 24, 1969, at pp. 5-4.

2 1971.
Interview with Robert Einsweiler, March 23,

33/ Interviqw with Gunnar Isberg, Planning Coordinator,
Dakota County, August 27, 1971, Hastings, Minnesota.

Interview with Orwin Pierson, August 24, 1971; interview
with William Schwab, August 27, 1971.

85/ Interview with Orwin Pierson, August 24, 1971; interview
with Paul Dow, August 25, 1971.

L6/ interview with Gunnar Isberg, August 27, 1971.

gZ/ Interview with Paul Dow, August 25, 1971.
g8/ Interview with Orwin Pierson, August 24, 1971; interview
Paul Dow, August 25, 1971.

.g9
j interview with Paul Dow, August 25, 1971.

20/ Id.

21
Interview with Richard Dougherty, August 26, 1971.

22/ Fiscal Disparaties Bill., PLANNING AND DEVELOPMENT NEWS-
LETTER, Dakota County Planning Advisory Commission,
Vol. 1, No. 4, August 1971.

23/ Minnesota Sessions Laws 1971, Ch. 541.

Id.; Telephone interview with Reynard Boezi, Director
of Planning, Metropolitan Council, on July 13, 1971.

Laws 1971, Ch. 54.
Minnesota Sessions

_2.6j Minnesota Sessions Laws 1971, Ch. 702.
_2.7j House File 1676, Senate File 1356. The Bill passed the
Senate but was stranded in the House Rules Committee
which, during the special session called in August-
September, was vigorously resisting action on all bills
not passed in some form by both Houses during the
regular 1971 session, according to Calvin.Clark,
Research Associate for the Citizens League.

- 163

28/ Explanation of Regional Housing Assistance and Develop-
ment Act Metropolitan Section, League of Municipalities
publication (not dated).

_29
Telephone interview with Reynard Boezi, Director of
Planning, Metropolitan Council, on October 12, 1971,
and November 4, 1971; Interview with Calvin Clark,
.August 24, 1971.

190/ Metropolitan Development Guide: Housing, draft for
purposes of public hearing, February 4, 1971, at p. 2.

S
nate File No. 6, first engrossment.
e'

192/ Interview with Gerard Hegstrom, August 26, 1971.

123
Id.

ID41 Id.; Telephone interview with Reynard Boezi, on October
12, 1971, and November 4, 1971.

125/ Telephone interview with Calvin Clark, September 3,
1971.

196 August 27, 1971.
Interview with William Schwab,

IL7j Interview with Calvin Clark, August 24, 1971;
interview with William Schwab, August 27, 1971;
interview with Paul Dow, August 25, 1971.

IQ8/ Interview with Robert Einsweiler, March 23, 1971;
1969-1970 Biennial Report To The Minnesota Legislature,
Metropolitan Council, 1971, at p. 4.

129/ Interview with Robert Einsweiler, March 23, 1971.

I.LOJ Id.

164 -

MASSACHUSETTS ZONING APPEALS LAW

Concern over the impact of exclusionary zoning on
growth patterns in our metropolitan areas is mounting around
the country. The Massachusetts Zoning Appeals Law l/ is the
first effort of its kind by any state to.use the state's
land use control powers to attack the widely recognized
shortage of decent low- to moderate-income housing. 2/ A
major contributing factor to this shortage is the fact that
local building and health codes often produce unnecessarily
high construction costs, while local zoning restricts the
amount of land available for higher density low-income
housing.

The process of complying with the ordinances and
regulations of various municipal departments requires the
developer to spend substantial amounts of time and money.
Developers of subsidized housing are usually non-profit or
limited dividend corporations which 4do not often have the
staff and capital necessary to comply with a long, compli-
cated local approval process.

The Zoning Appeals Law creates additional proce-
dures and standards which come into play only when a quali-
fied low-income housing developer 4/ seeks to build housing
in the community. The Law responds to the problem of
multiple local regulation by consolidating all the local
approvals required (building and health permits, any neces-
sary rezoning, etc.) into one "comprehensive permit." The
statute provides that the comprehensive permit be issued or
denied by the municipality within approximately 70 days of
receipt of the application (depending on the length of the
local hearing).

Denials or conditional grants of permits may be
appealed to a state Housing Appeals Committee; the time
provided in the statute for a decision on the appeal can
again be as short as 70 days (depending on how quickly the
appeal is filed and the length of the hearing on the appeal).

origins of the Law

Concerned legislators, lawyers, and housing ex-
perts wished to make a symbolic attack on restrictive zoning
and other techniques used by suburbs to exclude low-income
housing, and to provoke a general discussion of housing

- 165

problems in Massachusetts. After several drafting sessions,
they presented a-proposed bill to the 1969 session of the
Massachusetts legislature for this purpose, and were re-
portedly as surprised as anyonelelse when the bill survived
the legislative battles over its passage. 5/

The introduction of the bill was accompanied by
a great deal of publicity, and newspapers in Massachusetts
generally supported the legislation. Legislators from the
central cities, conservatives as well as liberals, supported
the measure since it provided a means of lessening the bur-
den of providing low-income housing on urban areas. Many
Boston legislators had an additional reason for supporting
the act--their resentment against suburban liberals who had
imposed upon them a school integration plan.

While many suburban legislators opposed the mea-
sure, others were convinced to support it by efforts in
favor of the bill on the part of legislative leaders and
the governor. The lack of strong opposition from the general
public also contributed to the passage of the act. Any of
these factors could well.have been critical, because several
narrow votes on the bill occurred in both houses before its
final passage. 6/

operation of the Law

A qualified low-income housing developer (public
housing authority, non-profit or limited dividend corporation)
may ask the local zoning ]?card to issue a "comprehensive
permit." If denied the developer may appeal to the appeals
committee created by the Law. The five-member Housing Ap-
ment of Community Affairs although not directly under the
authority of the Department. The five members serve, with-
out compensation, for one year. Three members are appointed
by the Commissioner, two are appointed by the Governor. The
two appointed by the Governor are representatives of local
government interestsL-one required to be a member of a
board of selectmen and the other a member of a city council.
of the three appointed by the Commissioner,'one must be an
officer or employee of the Department. The statute does
not specify how the remaining two members shall.be selected.
The Commissioner of Community Affairs designates the chair-
man of the Committee. 7/

If the developer shows that the local denial was
not "reasonable and consistent with local needs" the Committee

166 -

may vacate the local decision and direct the issuance of a
permit by the municipality. Where the local decision is to
impose conditions upon the comprehensive permit, developers
may appeal if the conditions make the project "uneconomic"
and are also not "reasonable and consistent with local needs."
If the Committee finds that the local imposition of condi-
tions upon the permit was consistent with local needs the
local decision will stand regardless of whether the condi-
tions make the project "uneconomic." For the local imposi-
tion of conditions to be overturned, the conditions must
both make the project uneconomic and also be not inconsistent
with the local needs as defined in the statute. @/ when
these two criteria are met, the Committee has the power to
order the local board of zoning appeals "to modify or remove
any such condition or requirement so as to make the proposal
no longer uneconomic and to issue any necessary permit or
approval." 9/

In issuing orders to modify conditions, the Com-
mittee in effect is given the power to rewrite local regu-
latory requirements, except that "the Committee shall not
issue any order that would permit the building or operation
of such housing in accordance with standards less safe than
the applicable building and site plan requirements of the
federal Housing Administration or the Massachusetts Housing
'Finance Agency, whichever agency is financially assisting
such housing. " 10/

All of these standards govern the review of the
local decision by the Committee and are not specifically re-
quired to be considered by municipalities in reaching their
own decision on the application for a comprehensive permit.
.For local decisions, the statute merely provides that the
local zoning board of appeal

"shall have the same powers to issue permits
or approvals as any local boards or official
who would otherwise act with respect to such
application, including but not limited to
the power to attach to said permit or approv-
al conditions and requirements with respect
to height, site plan, size or shape, or
building materials as are consistent with
the terms of this section. The board of,
appeals, in making its decision on said
application, shall take into consideration
the recommendations of the local boards
and sha.11, have the authority to use the
testimony of consultants. " ll/

167 -

Housing Appeals Committee staff state that the
communities which have considered applications for compre-
hensive permits have tended to limit their deliberations
to evidence concerning the effect of.the project on local
planning standards, because they are accustomed to using
these standards. 12/ Thus it may be possible that con-
sideration of regional low-income housing needs will turn
out to be the responsibility of the Committee.

The key element in the Law is the definition of
consistent with local needs." The most innovative and
widely discussed portion of this definition is that "[local]
requirements and regulations shall be considered consistent
with local needs if they are reasonable in view of the re-
gional need for low and moderate income housing
This portion of the definition allows the Housing Appeals
Committee, in reviewing local decisions on comprehensive
permits, to make a determination of whether the local com-
munity is helping to satisfy the regional need for low-
income housing.

The statute does not define "region, " but it does
specify that in arriving at "regional needs" the Committee
must "consider with" it the "number of low-income persons
in the city or town affected." 13/ (The Law does not specify
what the effect on the Committee's decision should be if
the existing number of low-income persons in the affected
municipality is low or high.) By means of rules and regula-
tions promulgated'under Section 2 of Ch. 774 (23B Mass.
Gen. Laws. Ann. �5) by the Commissioner of Community Af-
fairs, the Housing Appeals Committee uses the following
definition: 14/

"'Regional needs' means the shortage of
housing for families and individuals with
income within the eligibility limits of
the State or Federal program subsidizing
the proposed housing, for the entire
Standard Metropolitan Statistical Area
of which the city or town is part, as
defined by the U.S. Bureau of the Census;
or, if the city or town lies outside any
such area, for the entire regional plan-
ning district created by Chapter 40B of
the General Laws, or any other special
act."

452-32 9 0 - 72 - 12

168 -

The definition of "consistent with local needs,"
offers a rough approximation of each community's share of
the regional need for low-income housing, although not
phrased in terms of regional need. The following quotas
set out in the statute,provide for a maximum number of units
and maximum amount of lan d to be devoted to low-income hous-
ing in each community, as well as an annual limit: Local
"requirements and regulations" are to be considered "con-
sistent with local needs" by the Committee when (1) the
number of low or moderate-income housing units exceeds 10%
of the total housing units in the community; (2) the amount
of land used for low-income housing equals or exceeds 1-1/2%
of the total land area of the community, excluding publicly
owned land7 or (3) the application being considered by the
municipality would result in the construction of low-income
housing on "sites comprising more than 3/10 of ly. of such
land area or 10 acreswhichever is larger. . . ." The ef-
fect of these quotas is to prevent the Housing Appeals Com-
mittee, once a community has satisfied one of the quotas,
from finding that a refusal by that community to admit
further low-income housing is not "consistent with local
needs." In other words, each community has assurance that
no large number of projects need beaccepted in any one year.

The -second element of the "local needs" standard,
separate from the responsibility of local communities for
meeting their fair share of the regional need for low-income
housing, concerns traditional local planning criteria for
housing: the need to protect health or safety, the need to
preserve open space, the need to promote better site and
building design, and the equal application of regulations
to both subsidized and unsubsidized housing. The statute
does not specify the exact weight which the Committee may
give to local planning objections when reviewing a local
decision on a permit, but the statute seems at least to
direct the Committee not to overturn the local decision
if the low-income housing project offends neutrally-applied
local planning standards. However, no specific procedure
for decision-making by the Committee is provided in the
statute. Therefore, the exact interpretation of how the
"local needs" standard (which amou'nts to a regional needs
standard) is to be applied remains entirely in,,the discre-
tion of the Committee, unless the Massachusetts courts adopt
some restricting interpretation of the statute.

Pending Amendments to the Law

As Alan G. Rodgers, coordinator of the Massachusetts
Law Reform Institute 15/ and co-draftsman of the Zoning Appeals

- 169

Act, points out, though, the need for housing in a Statistical
Area such as metropolitan Boston is so great that it would
probably not be satisfied even if all cities and towns other
than Boston satisfied their numerical quotas as set forth under
the criteria for "consistent with local needs." it may well be
that the above regulation has defined "region" too broadly. 16/

An amendment drafted by Rodgers calculated to solve
the problem of defining "regional" and "local needs" was
defeated this year by the Massachusetts Legislature primarily
due to defections from the ranks of the Act's original support-
ers representing urban areas. While the needs of the region
would still be a factor in the definition, the finding of "need"
by a financing agency, such as the Massachusetts Housing Finance
Agency, would be determinative. The "escape valve" for a local
board would be a finding that the proposed land use change will
be "excessively burdensome." A finding of excessively burden-
some would be justified it if could be shown

(1) that there will be imminent peril to the
health, safety and welfare of the people;

(2) that there would be no reasonable access
to essential services and facilities such
as shopping centers and public transportation;

(3) that design and site selection were in some
way faulty.

Moreover, the community would be temporarily exempted from
review by the Housing Appeals Committee if the community pre-
pares a plan which shows how it intends to meet local and
regional needs for low-income housing. 17/

The amendment would also have responded to another
argument against the present Law. Opponents have argued that
the Law does not give a local board of appeals the power to
override zoning by-laws. ],.8/ Under Massachusetts zoning laws,
they argue, the zoning power is exclusive to the local legis-
lature (town meeting or city council) and the Zoning Appeals
Law does not by its terms amend Massachusetts zoning laws.
Rather, it was adopted as an addition to the chapter of the
Massachusetts'laws dealing with regional planning. 192 Thus,
critics of the Zoning Appeals Law have argued that local
zoning boards are powerless to grant a comprehensive permit
when the project would not conform to applicable zoning. -LOY
It could, moreover, be argued that the denial of a permit
requiring a zoning change can never be "unreasonable" if the
local board has no power to vary zoning. The amendatory
legislation would specifically have granted this power.

- 170 -

According to Rodgers, plans are being made to re-introduce
the amendment next year. 2-11

The Comprehensive Permit Process

The Law is set in motion by an application by a
qualified low-income housing developer for a local compre-
hensive permit. The statute states that single applications
for a comprehensive permit are submitted to the community
"in lieu of separate applications to the applicable local
boards." 22/ No particular form for such an application is
required S-y- the statute. The Housing Appeals Committee has
not issued a recommended form, 23/.but in an Information
Bulletin issued in June, 1971 ti@_e Department of Community
Affairs suggested that the following materials be s.ubmitted
to the local board of appeals:

(1 A statement that the housing sponsor
is "qualified"--either a public agency,
a non-profit organization, or a limited
dividend corporation.

(2) A statement'that the proposed housing
will be financed under a housing program
"subsidized by the Federal or state govern-
ment" to "assist the construction of low
or moderate income housing." Final ap-
proval for the financing is not necessary
at the time of application.

(3) Presentation of materials to show that
the siting of the proposed housing is rea-
sonable, including pictures of the site
and preliminary plans and sketches of the
proposed housing. Factors to be considered,
with solutions, include changes in bulk
zoning regulations, sewage disposal, gen-
eration of additional traffic, and fire
prevention facilities.

(4) Summary of discussions of the applicant
with the planning and building departments
of the community.

(5) If the board of appeals holds that there is
no need for additional housing for low and
moderate incomes, a statement on'need should
be presented.

171 -

(6) A statement regarding the amount of sub-
sidized housing in the community. 24/

According to Committee staff, local communities
had not issued any of their own rules for what needed to
be submitted, and developers had been fairly inventive in
minimizing their expenses of preparing the application, some
having included only a site plan. 15/ In one instance, sub-
missions included: a plot plan; a sewerage layout; floor
plans; elevation and sections of buildings; and "typical
construction details." 26/ In processing that application,
the local board of zoning appeals requested additional
sewerage plans, preliminary drainage and grading plans,
and a piping layout showing fire hydrants. Clearly., appli-
cations must furnish a substantial amount of information
at some pointin order to provide the basis for a local
decision on a comprehensive permit, unless the community
is willing to shorten the process by granting the permit
subject to open-end,conditions. 27/

The Zoning Appeals Law requires that the local
hearing on the developer's application be scheduled within
30 days after the application i:s received, and that a deci-
sion be rendered within 40 days of the termination of the
hearing. Considering the amount of information which may
have to be processed by the municipality this time limit may
be unrealistic. Records are available for three of the four
denials which have been appealed. In the first two of these
cases the denial was issued within the 70-day period. But
in the one case the denial was issued s ven months after the
application was filed. (In the first two cases, the com-
munities apparently did not consider the entire application
but decided to deny the applications primarily on the basis
that the applicants were not qualified low-income housing
developers. 28/) In the other case the municipality re-
quired the applicant to furnish a substantial amount of
information and several hearings were held. The decision
denying the application.was issued well-beyond the 40 days
time limit. 29/ The applicant did not question these de-
lays in his appeal to the Committee, and the Committee staff
have not attached significance to the delays in their dis-
cussions of the case. 30/ It would appear, in practice,
where a full hearing on a comprehensive permit is involved,
substantially longer than the minimum statutory period of
70 days will often be required for the municipality to
reach a decision.

In fact, several persons connected with the review
process are concerned hearings at both the local board of ap-

172

peals and the Housing Appeals Committee levels could tend to
drag interminably. one recent case has been before the
Housing Appeals Committee since mid-summer and was barely
halfway through its scheduled hearings in mid-September,
with no statutory cutoff. The result may be fatal for the
applicant, who may find his commitment for financing--even
his contract to purchase if he does not own the site out-
right--has expired. 31/

Robert Cohen, attorney for the Newton Civic Land
Association, which has intervened in opposition to the low-
income housing developer in a case currently before the
Housing Appeals Committee, believes there are a host of
other.procedural,, technical and substantive problems with
the appeals process. There is no requirement that a record
of proceedings be kept at the local board of review hearings,
and Cohen queries what "review" means without-such a tran-
script. Furthermore, testimony is usually not sworn, re-
ducing its reliability on review. Nor is there any indica-
tion of whether a quorum is necessary at that level, or even
what one is. 32/

At the Housing Appeals Committee level, the statute
requires a decision within 30 days. Cohen points out that
first, the period is too short, and second, even if it is
not there is no indication of what happens if the decision
is not forthcoming within that period. Moreover, he argues,
the Committee has "taken unto itself" the power to add condi-
tions to a permit, whereas the Zoning Appeals Law only grants
power specifically to remove them. @3/

operations of the Housing Appeals Committee

The Housing Appeals Committee has adopted rules
and regulations and has handled preliminary statements and
answers for its appeals. Its regulations, and its actions
in the cases in which it has so far become 'involved, make
clear its view of itself as a quasi-judicial body 14/
whose hearings will be de novo review of all the evidence
from the local level. Committee staff anticipate that
evidence not introduced at the local level will also be-
allowed. 35/

The Committee has not yet decided exactly how it
will balance the regional and local need for low-income
housing against local planning criteria, although it has
determined to use the statutory quotas as a screening de-
vice for removing the necessity of further deliberations
on its part if a community has already met one of the quotas. 36/

The Committee's activities with regard to appeals
which have reached it shed some light on further practical
difficulties in the administration of the Law. The Committee
is allowed 20 days from the filing of an appeal in which to
schedule a hearing; and after the termination of a hearing,
must issue a decision within 30 days (unless the applicant
agrees to an extension of the time limit). However, the
time limits appear as unrealistic at the appeals level as
they seem to be at the local 'level. In the first two cases
to reach the Committee, the scheduling of a hearing was de-
layed four months while the Committee waited for an attorney
general's opinion on whether the appellant (who was the same
in both cases) was a qualified low-income housing developer. 37/
After the attorney general's opinion was received, 38/ a re-
mand was necessary in both cases for further local hearings.
The developer ultimately dropped both appeals "because of
financial difficulties." 2-9/

The Hanover Decision

While a number of local board decisions have been
or are about to be taken to the Housing Appeals Committee
for review, only one has made its way through the entire
decision-making process. on July 13, 1971, the Committee
rendered its decision in Country Village Corporation v.
Board of Appeals of the Town of Hanover, bringing an end,
at least administratively, to 15 months of applications and
hearings. 40/

The circumstance s of the case were these. on
April 27, 1970, a limited dividend corporation, the Country
Village Corporation, submitted an application to the Town
of Hanover's board of appeals for a permit to erect 88 low-
and moderate-income housing units for the elderly on approxi-
mately 10 acres of land. The board held four hearings between
May and September, and on December 1, 1970, denied the appli-
cation. jl/ In its decision, the board raised the question
of its authority to amend the town's zoning ordinance. 42/
It also went into great detail in terms of its planning ob-
jections to the proposed project, and denied the comprehen-
sive permit on these grounds as well, without noting any
consideration of the regional and local need for low-income
housing. The board emphasized that its objections to the
projec,t were in terms of planning criteria which were applied
equally to all building projects in the town. 43/

The Country village Corporation thereupon filed
an appeal with the.Housing Appeals Committee on December 18,

- 174 -

1970. After the filing of an answer on January 20, 1971,
by the Town of Hanover, the Committee held two hearings in
March.

The Housing Appeals Committee addressed itself
to a number of preliminary considerations, such as the bur-
den of proof (on appellant Country Village Corporation), 44/
adequacy of the corporation's property interest (a lease-
hold), the eligibility of the applicant as a limited dividend
corporation, and the adequacy of its exhibits (traffic report7
driveway, landscape, wiring, plumbing, subdivision, drainage
and sewerage plans7 fire precautions) before reaching the
crucial issues of consistency with local needs and constitu-
tionality of the Appeals Law. 45/ The Committee found that,
based on an exhibit prepared by the Metropolitan Area
Planning Council, ". . . the evidence showed that there is
a need, both actual and under the statutory provisions . . .
for low and moderate income housing in Hanover." 46/ The
Committee further found ". . . that the proposed development,
comes within the requirements of regional need set out in
the statute [and] that adequate safeguards have been pro-
vided for the health and safety of occupants and residents." 47/
The Committee then ruled that the proposed development was
"consistent with local needs" and that the Country Village
Corporation had sustained its burden of proving that the
board's action in denying its application was not "consistent
with local needs." L8/
It is interesting to note that the Hanover board
of review had not only accepted the fact that a statutory
need for housing existed in the town, but that it also ad-
mitted in its answer that at that time there was no low- or
moderate-income housing in Hanover. 49/

one of the major contentions raised by Hanover
was the constitutionality of the Zoning Appeals Law. While
agreeing with Hanover that it had the right to raise this
issue before it, the Committee held that the Law was not
so vague as to render it void under the Fourteenth Amendment
of the Federal Constitution (and Article 12 of the Declara-
tion of Rights of the Constitution of Massachusetts). 50/
In the process of reaching this decision, the Committee
held: 51/

@(1) That a board of appeals is empowered and
obligated to allow multi-family units in
zoning districts that heretofore did not
allow such units, if such action is rea-
sonable and consistent with local needs.

175

(2) That nevertheless a board of appeals can
insist that an applicant conform to local
zoning by-laws and subdivision laws, when
such laws are reasonable and consistent
with local needs.

(3) That the Zoning Appeals Law has, where it
applies, "superseded and made considerable
inroads into rights and powers previously
reserved to local cities, towns and boards
of appeal under the Zoning Enabling Act"
with regard to the powers to establish
zoning districts and procedures for grant-
ing special permits and variances.

(4) That an applicant under the Law is in a
special category only to the extent "that
[the Zoning Appeals Law] puts him in a
special category. In all other respects,
and where [the Zoning Appeals Law] is silent,
he is subject to the same state and local
rules and regulations as any other applicant
for a building permit."

The Committee then ordered the permit sought by the applicant
issued, subject to four conditions: 52/

(1) Before beginning construction, the appli-
cant shall provide the board with satis-
factory evidence that its proposed provi-
sions for drainage and sewage disposal have
received approval from the approprinate
state authorities.

(2) If anything, the decisions of this Committee
would seem to permit the building or operation
of such housing in accordance with standards
less safe than the applicable building and
site plan requirements of the Federal Housing
Administration or the Massachusetts Housing
Finance Agency; the standards of whichever
agency is financially assisting such housing
shall control.

(3) The board shall at its option be empowered
to attach a condition to the comprehensive
permit that the permit is not effective until
the appellant and lessor submit to the board
a statement setting forth in full detail the

- 176 -

terms of the lease, and the reasons for
electing to lease rather than to deed in
fee simple. Such statement shall be in
sufficient detail to satisfy the board that
it is a full disclosure, and shall be in-
cluded as part of the appellant's applica-
tion to the Massachusetts Housing Finance
Agency (or other finance agency). Should
disagreement arise between the Board and the
appellant on the question of sufficiency of
the statement, certification by the Depart-
ment of Community Affairs shall be adequate
proof of compliance with the requirements of
this condition.

(4) The comprehensive permit shall provide that
local officials shall carry out compliance
inspections in the usual manner. Should dis-
agreement between the builder and local offi-
cials arise, certification by the Department
of Community Affairs, if requested, shall be
adequate proof of compliance with any re-
quirement of the comprehensive permit.

The Town of Hanover has appealed to the Superior
Court of Massachusetts. There is speculation it will prob-
ably go to the Supreme Judicial Court if necessary to over-
turn the Committee's decision.

The Newton case

The Housing Appeals Committee is currently in the
midst of hearings concerning an appeal brought under the
Zoning Appeals Law from a decision rendered by the Newton
Board of Appeals. Newtonds a city of approximately 100,000
persons in the westerly portion of the Boston metropolitan
area astride the major westward transit links, surrounded
by an industrial-educational complex.

The applicant-appellant is the Newton Community
Development Foundation, which was formed in 1968, originally
by approximately two dozen priests, ministers and rabbis of
Newton; a board of directors, intended to represent the whole
spectrum of the community, was appointed to determine the
Foundation's objectives and define the policies it would em-
ploy to attain them. In the summer of 1969 the board of
directors appointed an executive director, Mark A. Slotnick,
and opened offices in Newton Center in space made available
by the Newton-Waltham Bank and Trust Company. @3/

- 177

The genesis of the current controversy was a
resolution to support low- and moderate-income housing at
low densities on scattered sites. The resolution was passed
in response to a 1967 s,tudy by a committee of the board of
aldermen which concluded that an absolute minimum of 200
units of low-income housing was needed in Newton, and an
October 1968 report of the Newton planning department con-
curring,with the earlier recommendation. In the same month
of May 1969, a citywide conference on low- and moderate-
income housing, sponsored by various civic organizations,
drew over 300 people. According to Mark Slotnick this response
seemed to reflect the profound concern of many citizens with
the housing needs of Newton. 54/

The Foundation's initial intent was to construct
no less than 500 units throughout Newton on as many sites as
economically feasible. originally 10 sites were considered. 5
Teams went around to each neighborhood in which the sites
were located to explain the proposed develo 'pment. (At that
point, according to Robert Stiller, head of the Newton Civic
Land Association which opposes the Foundation's plan, forces
coalesced against the program, and Temples and churches to
which the original 24 churchmen belonged lost congregants
because of their involvement in the Foundation's project.)

There was strong opposition to some of the sites,
and eventually a compromise was reached. A resolution
calling for rezoning of a total of seven sites--four owned
by the Foundation and three owned by the town, for the con-
struction of multiple-family, low- and moderate-income housing
was passed by the 'board of aldermen in August of 1970. How-
ever, the resolution required rezoning, and a three-fourths
vote of all aldermen was required to get the necessary zoning.
Such a resolution failed by one vote. 56/

As a result of this and other setbacks, on January
18, 1971, the board of directors of the Foundation decided
to ask for a permit under the Zoning Appeals Law and even-
tually appeal, if necessary, to the Housing Appeals Committee.
The appropriate appeals were made to the board of review,
which held three hearings. Then the board met in executive
but open session and held votes on the two propositions.
The first was to approve the sites, which resulted in a 2-2
tie, defeating the motion;.the second was to deny the appli-
cation, which also resulted in a 2-2 tie, but the chairman
then changed his vote, making it 3-1 for denial. 57/

A petition for review before the Housing Appeals
Committee was,filed-in July of 1971. Among other things, it

178

was alleged that there was no,quorum at the zoning board of
appeals level and that no reasons were stated for the re-
fusal to grant permission to develop the sites. There,are
six sites which are subject to the appeal, totaling 23-94
acres, upon which 224 units of low- and/or moderate"income
housing are proposed. 58/

on July 19, 1971, the Housing Appeals Committee
began hearings on the Foundation's appeal. As of September
9, a total of 10 hearings had been held and two more hearing
days were scheduled for the month of September. 59/ By this
time feelings are running high on both sides of E-he contro-
versy. Larry Madfis, counsel to the Foundation, claims that
the Newton Civic Land Association, which opposes the project,
is stalling for time by the use of lengthy cross-examination,
attempting to run the Foundation out of money so that the
project will fail.

Meanwhile, in Newton, the board of aldermen has
given initial approval to construction by the Newton Housing
Authority of 12 units of low-income housing on three sites.
Low-income housing advocates claimed 12 units are "a reduc-
tion to absurdity" from the original number of 361 units
proposed by the Foundation. 60/ Robert Stiller of Newton
Civic Land Association claim's, however, that his group is
fighting for ordinances which would require an up-grading
of substandard housing when people move up to better housing
so that the entire housing of the community can eventually-
be up-graded. The Association proposes that 235-type housing
in one- and two-family units (together with some garden apart-
ments where multiple-family is allowed) be scattered in one-
quarter-acre to three-acre sites spread throughout the com-
munity. The city would provide for construction and sites
but would retain the land ownership and allow the resident
to own only the home or dwelling unit on the property.
According to Stiller, the "poor element" in town supports
this proposal. @_1/

Other Cases

On August 31, 1971, an appeal to the Housing Ap-
peals Committee was filed by the Lunenburg Arms Trust (among
others) from a decision of the Board of Appeals of the Town
of Lunenberg, rendered by letter dated August 13, 1971,
denying the Trust's petition for a comprehensive permit
to construct multiple-family housing on a single site within
the jurisdiction of the town. A review of the appeal filed
with the Housing Appeals Committee, together with the attach-

- 179

ments thereto, makes it clear that there have been a multi-
tude of mutual recriminations inthis particular case. The
board of appeals makes no secret that it regards the appli-
cants as speculators and the applicants make no secret that
they regard the board as biased, in the first place, and
having tampered with some of the records involved. That the
hearing should be spirited is perhaps an understatement. it
is worth noting that theapplicants managed to obtain a writ
of mandamus to compel the Town of Lunenburg's board of ap-
peals to hold a proper hearing this past July. 62/

In the Town of Lexington, Massachusetts a private
developer sought a land use change from the town meeting to
construct a housing project which would contain at least
25% low-income housing in order to obtain financing from
the Massachusetts,.Housing Finance Authority. At the meeting
the developer received a favorable vote to change the zoning
from one-family residential to subsidized-housing residential.

However, a Massachusetts statu-te which applies
only to the Town of Lexington provides that if within five
days of such a decision 20% of the citizens of Lexington
ask for a referendum on the question, the pertinent ordi-
nance is suspended until the referendum is held. 63/ on
May 3, 1971, by such,a local referendum, the citizens of
Lexington overturned the vote of the town meeting, 5,000
votes to 2,700. @4/ This dispute may eventually reach the
Appeals Committee.

Effectiveness of the Zoning Appeals Law

one of the purposes for the adoption of the Zoning
Appeals Law was to promote discussion of housing problems
and induce local communities to confront their responsibility
for accommodating a fair share of regional low-income housing
needs. Housing problems have certainly been widely discussed
in subsequent sessions of the Massachusetts legislature, al-
though no new bills have been passed. 65/

A substantial amount of local activity has also
occurred since the passage of the Zoning Appeals Law, but
apparently none of it has resulted in the construction of
low-income housing. In 1969 and 1970, a number of communi-
ties and regional agencies undertook studies of the need for
low-income housing within their urisdictions. 66/ These
studies found a substantial need for low-income housing, and
showed that substantial amounts of low-income housing would
have to be built, in most communities before they would
satisfy the quotas contained in the Zoning Appeals Law. @7/

180

In addition, committee staff state that 30 new
public housing authorities were created in Massachusetts
communities in 1969, 68/ and apparently another 18 were
created in 1970. 69/ Also, a number of communities have
been seriously considering amending their zoning ordinances
to provide for specific planning controls over any low-
income housing which may be built. 70/

Developers have been understandably reluctant
to use the appeals process, reportedly "preferring to let
someone else bear the expense and delay of obtaining a
definitive court test of the act." 21/ many planners and
lawyers in Massachusetts believe that a larger number of
applications for comprehensive permits will be received
once the Zoning Appeals Law is clarified and tested favor-
ably. 72/

No legal challenge to the Zoning Appeals Law has
yet reached the Massachusetts courts. A number of amend-
ments have been introduced in the legislatures both to weaken
and to strengthen the Law, but none passed in the-1970 ses-
sions and the final outcome of the 1971 session is uncer-
tain. 73/ There is some support for an amendment to the
Law's definition of qualified low-income housing developers
so that private developers who sell finished projects to
housing authorities under the turnkey program can be in-
cluded. 74/

Cooperation from other public agencies in the
housing field is essential if the Zoning Appeals Law is to
become effective. For example, FHA has traditionally been
unwilling to approve financing for housing projects until
the developer obtains a proper zoning classification, and
the Boston FHA office has refused to waive this rule for
comprehensive permit applicants, 25/ which forces the
developer to undergo substantial initial expenses without
any assurance of a loan from FHA. 76/ The Massachusetts
Housing Finance Agency has apparently been uncooperative
with at least one developer, refusing to promise financing
where the developer planned to apply for a comprehensive
permit because the MHFA reportedly feared the Zoning Appeals
Law would be held unconstitutional. 77/ Finally, the
cooperation of local housing authoriEfes also will be
necessary for the full implementation of the Zoning AP7
peals Law. Housing authorities have not yet applied for
comprehensive permits, and may be reluctant to do so due to
their close ties with local governments.,78/

181

FOOTNOTES

l/ 40B Mass. Gen. Laws Ann. ��20-23 (Supp. 1971).

2/ See, generally, U.S. Commission on Urban Housing, A
DECENT HOME (1969) [Kaiser Commission].

3/. U.S. National Commission on Urban Problems, BUILDING
THE AMERICAN CITY, at p. 51 (1969) [Douglas Commission].

4/ Qualified low-income housing developers are "any public
agency or any non-profit or limited dividend organiza-
tion." 40B Mass. Gen. Laws Ann. �20.

5/ For an excellent discussion of the historical circum-
stances in which Chapter 774 was adopted see Karen J.
Schneider, "Innovation in State Legislation; The Massa-
chusetts Suburban Zoning Act" (undergraduate thesis for
Honors B.A. degree, Radcliffe College, 1970). See also
Allan Rodgers, "Zoning and the Housing Shortage; For a
Choice and Not an Echo" (Law Reform Institute, Boston,
Massachusetts, 1970) (submitted for publication to the
Boston College Annual Survey of the Law).

6/ Id.

7/ 23B Mass. Gen. Laws Ann. �5.

B/ The "uneconomic" standard merely defines howburdensome
the local "approval of an application with conditions"
must be to constitute in practical effect a denial,
requiring the local decision to be "reasonable and
consistent with local needs." 40B Mass. Gen. Laws Ann.
�23. The statute defines "uneconomic" as "any condition
brought about by any single factor or combination of
factors to the extent that it makes it impossible for
a public agency for a non-profit organization to pro-
ceed in building or operating low- or moderate-income
housing without financial loss, or for a limited
dividend organization to proceed.and still realize a
reasonable return Id. at �20.

9/ Id. at �23.

10/ Id.

ll/ Id. at �21.

- 182 -

L2/ Interview with McDonald Barr, Deputy Commissioner of
Community Affairs, member, Housing Appeals Committee,
Boston, Massachusetts, March 31, 1971, and with John
J. Carney, Director of Community Housing Assistance,
Department of Community Affairs, Boston, Massachusetts,
March 31, 1971.

L3/ 40B Mass. Gen. Laws Ann. �20.

j:j/ Department of Community Affairs, Housing Appeals
Committee, Rules and Regulations for the Conduct of
Hearings, July, 1970, at p. 3.

The Massachusetts Law Reform Institute is a federally
financed law reform center located in Boston at 2 Park
Square. It is basically a state "back-up" agency for
legal services.

L6J Interview with Allan Rodgers, September 7, 1971.

.IV Id.; Telephone conversation with Allan Rodgers,
November 2, 1971.

L8/ Id.

L9J See Schneider thesis, supra note 5, at 95-96.

_?Q/ See, eq., Allan Rodgers, "Zoning and the Housing
Shortage," supra note 5; Schneider thesis, supra note
5. None of these sources are themselves critical of
Ch. 774 but each summarizes arguments advanced by
opponents of the statute. See also Note, "Snob Zoning,"
7 HARV. J. OF LEGIS. 246 (1970).

Telephone conversation with Allan Rodgers, November 2,
1971; such a provision was in the original bill, accord-
ing to Rodgers, but was eliminated somewhere in the
legislative process before Ch. 774 became law.

_@2/ 40B Mass. Gen. Laws Ann. �21.

_@3
Interview with McDonald Barr, March 31, 1971; interview
with John J. Carney, September 7, 1971.

24/ "Information Bulletin for Applicants for Comprehensive
Permits Under Chapter 774 of the Acts of 1979 [sic],"
No. One at pp. 2-3. Department of Community Affairs,
141 Milk Street, Boston, Massachusetts.

_@15/ Interview with McDonald Barr, March 31, 1971; interview
with John J. Carney, March 31, 1971; interview with
Allan Rodgers, September 7, 1971.

183 -

26/ Town of Hanover, Zoning Board of Appeals, Case No. 70-5,
December 1, 1970 (transcript of local proceedings).

27/ Such an approach has been suggested by committee staff.
Interview with McDonald Barr, March 31, 1971; interview
with John J. Carney, March 31, 1971.

28/ Massachusetts Department of community Affairs, Housing
Appeals Committee, Report on the.First Year of Opera-
tions, January, 1971.

29/ Id. See also transcript of local proceedings, supra
note 26.

30/ Committee Report, supra note 28; interview with McDonald
Barr, March 31, 1971; interview with John J. Carney,
March 31, 1971.

31/ Interview with Mark Slotnick and Larry Madfis, Newton
Community Development Association, September 7, 1971,
in Boston; interview with Robert Cohen, attorney for
Newton Civic Land Association, Boston, September 8,
1971; interview with Maurice Corman, Hearing Officer
and Counsel, Housing Appeals Committee, Boston, Septem-
ber 7, 1971.

32/ Interview with Robert Cohen, September 8, 1971.

33/ Id.

34/ See, generally, Housing Appeals Committee Rules and
Regulations, supra note 14.

35/ Interview with John J. Carney, March 31, 1971.

36/ See Committee Report, supra note 28.
_:t 37/ Id.

38/ The Massachusetts Attorney General approved the Committee's
interpretation that a "limited dividend organization"
need not obtain a charter as such prior to filing for a
comprehensive permit. opinion letter from Attorney Gen-
eral to Commissioner of Community Affairs, July 9, 1970.

39/ committee Report, supra note 28.

452-329 0 - 72 - 13

184

40/ Country Village Corporation v. Board ofAppeals of the
Town of Hanover, Housing Appeals Committee, July 13,
1971, at p. 1.

41/ Id.

42/ Transcript of local proceedings, supra note 26, at pp. 4-5.
43/ Id. at p. 5.

44/ This placing of the burden on the applicant is one of
many matters that Mark Slotnick of the Newton, Community
Development Foundation would like changed.

45/ Supra note 40, at pp. 2-18.

46/ Id., at pp. 18-19.

47/ Id., at p. 19.

48/ Id., at p. 20.

49/ Id., at p. 19.

50/ Id., at p.- 21.

51/ Id., at pp. 22-25.

52/ Id., at pp. 26-27. The attachment of conditions reflects
the Committee's interpretation that its explicit power
to direct the issuance of a permit includes the power
to control its content, and to require that certain
conditions be attached.

53/ "Newton, No ordinary Suburb," published by Newton Com-
munity Development Foundation, 93 Union Street, Newton
Center, Massachusetts 01259. "Newton Braces for a New
Fight Over Anti-Snob Law," Boston Globe, September 6,
1971, at p. 2.

54/ Interview with Mark Slotnick, September 7, 1971. See
"The Newton Community Development Foundation Program,"
published by the Newton Community Development Founda-
tion, May,1971. "Newton Braces for New Fight'Over
Anti-Snob Law," Boston Globe, September 6, 1971, at
p. 2. Participating organizations in the Newton
Housing Conference: League of Women Voters of Newton;
Newton Community Relations Commission; Housing Coordi-
nating Committee of the City of Newton; Newton Chamber

185

of Commerce; Newton Committee For Fair Housing and
Equal Rights; Newton Community Council; Newton com-
munity Development Foundation.

55/ "No Ordinary Suburb," supra note 53; interview with
Larry Madfis, September 7, 1971.

56/ NCDF Newsletter of'October 19, 1970, published by
Newton Community Development Foundation, Newton,
Massachusetts; "Seven NCDF Sites in Compromise," The
News-Tribune, Waltham, Massachusetts, Thursday, August
20, 1971, at p. 1.

57/ Interview with Larry Madfis, September 7, 1971. NCDF
Newsletter, February 5, 1971.

58/ The Newton Community Development Foundation Program,
May, 1971, supra note 54; interview with Larry Madfis,
September 7, 1971.

59/ "Newton Braces for New Fight Over Anti-Snob Zoning
Law," supra note 53.

60/ Id.

61/ Interview with Robert Stiller, Newton Civic Land Asso-
ciation, September 8, 1971.

62/ Interview with John Carney, September 7, 1971; appeal
of Lunenburcj Arms Trust, et al., filed August 31,
1971'with the Department (3-f i@_ommunity Affairs, office
of Housing Assistanc'e.

63/ Telephone conversation with Maurice Corman, September
15, 1971.

64/ Id.; "Community Housing News," Vol. 1, No. 1, June,
1971, at p. 2.

65/ See Allan Rodgers, "Zoning and the Housing Shortage,"
supra note 5, at pp. 8-10.

66/ Interviews with McDonald Barr and John J. Carney,
March 31, 1971; Allan Rodgers, "Zoning and the Housing
Shortage," supra note 5, at p. 8; Metropolitan Area
Planning Council, "Chapter 774: An Interpretive
Analysis for Cities and Towns," October, 1969, At-
tachment 3 (maximum housing guideline under Chapter
774 for communities in the council district, 11-14).
Also interview with'Robert McKay, Citizens Housing
and Planning Agency.

- 186 -

67/ Note, "snob Zoning," supra note 20, at pp. 259-60.

68/ interview with John J. Carney, September 7, 1971.

69/ Allan Rodgers, "Zoning and the Housing Shortage,"
supra note 5, at p. 8.

70/ Id.

71/ Id.

72/ Id.,

73/ Id.; interviews with McDonald Barr and John J. Carney,
March 31, 1971.

74/ Schneider thesis, supra note 5, at pp. 96-97.

75/ Id., at,p. 97; Allan Rodgers, "Zoning and the Housing
Shortage, " supra note 5, at p. 7.

26/ Interview with John J. Carney, September 7, 1971.

77/ Interview with John Woodward, Brookline Town Planner,
July, 1970.

L8/ Id. one housing authority applied for a comprehensive
permit after the public housing project involved had
already been built, merely in order to obtain an
occupancy permit from the local building department.
The town did not schedule a hearing, and as required
by Ch. 774 the comprehensive permit was automatically
granted. Committee Report, supra note 28.

- 187 -

MAINE SITE LOCATION LAW

The quiet and peaceful State of Maine is under
attack on two fronts: from the sea, by oil; from the
land, by tourists. It views both these invaders with
some ambivalence. They promise welcome sources of funds
to areas with high unemployment, but they also create
serious threats to the environment.

In 1970 the state suddenly realized how little
control was being exercised over the impact of these new
.developments when a number of firms proposed major oil
terminals in areas of the state where local governments
had no land use regulations. The legislature responded
with a package of legislation including a new Site
Location Law that requires approval by a state agency
of certain types of new development.

Threats to the Environment

A sense of unease had been spreading for years
about the vulnerability of vast stretches of Maine's
forest, coast, and shoreland to unplanned and minimally
regulated development. In part there was resentment
against rich outsiders "exploiting" the state to their
own temporary advantage. 2/ in much larger part, however,
the attitude was one of alarm that the scenic beauty which
Maine's inhabitants had taken for granted was seriously
threatened by recent economic trends. New interstate
highways were opening up northern New England to automo-
biles and buses and trailers from as far south as New
Jersey within a day's drive. Affluence, especially out-
side of Maine, enabled many thousands of people to take
longer vacations or to think about buying second homes on
Maine's inland lakes.

At the same time, geometrically expanding energy
needs in the northeastern United States, combined with the
emergence of mammoth tankers and the topographical accident
that Maine has the only true deepwater ports on the
American East Coast, made Maine a logical target for
oil-import operations and for related refining industries.
over a period of three months during the early part of the
1970 special legislative session no less than four proposals
were unveiled for deepwater ports and oil refineries in
some of the most scenic areas of Maine's coast. 4J Accord-
ing to Maine law professor Orlando Delogu, legislators

- 188

suddenly realized "that the state was vulnerable--we had
absolutely no ability to control these developments, so we
jumped in with both feet." V conservation groups., headed
by the Maine Natural Resources Council, campaigned both
publicly and in the legislative halls for some measure to
protect Maine against such developments. The legislature
devoted its primary attention to a Site Location Law which
had been drafted by an Environmental Task Force appointed
by the Governor.

Development Regulated by the Law

The Site Location Law focused directly on the
problem which was the immediate cause of the legislation--
major industrial projects. _�/ it required large commercial
and industrial developments to obtain permits from the
State Environmental Improvement Commission. Residential
developers and realtors convinced the legislature to delete
a provision which would have explicitly covered "residential"
developments. Z/ The neutrality of the powerful forest
products and electric power industries was assured by spe-
cific exemptions and a "grandfather" clause which removed
most of them from the coverage of the bill. @/ The final
support for the bill was overwhelming, and it passed both
Houses by a large majority.

The Site Location Law gave the Environmental
Improvement Commission the power "to control the location
of . . . developments substantially affecting local envi-
ronment in order to insure that such developments will be
located in a manner which will have a minimal adverse
impact on the natural environment of their surroundings."
The Law empowers the Environmental Improvement Commission
to place conditions upon the use of particular sites by
developers to insure that the surrounding environment is
protected, and empowers the Commission further to deny the
use of the site entirely if the effect on the environment
is sufficiently serious.

Developments regulated under the Law include
11any commercial or industrial development which requires
a license [from the Environmental Improvement Commission
under its pollution-control powers], or which occupies a
land area in excess of 20 acres, or which contemplates
drilling for or excavating natural resources or
which occupies on a single parcel a structure or structures
in excess of a total floor area of 60,000 square feet."
Developments by public agencies are not regulated.

- 189

As originally drafted the bill covered "residen-
tial, commercial or industrial development," but an amend-
ment to the bill deleted the word "residential." Never-
theless, 11commercial" developments have been def-ined by,
the Commission to encompass residential subdivisions in
excess of 20 acres, or residential developments which would
require a pollution permit from the Environmental Improve-
ment Commission. The position of the Commission is that the
subdivision of land for the purpose of selling lots is ob-
viously "commercial" activity, and that the word "residen-
tial" was dropped from the original bill merely because
it was redundant. ll/ This position has been supported by
the State Attorney General. L2/ Peter Bradford, who was a
member of the Task Force that drafted the Site Location
Law, agrees that an early version of the statute did indeed
employ the term "residential," but that it was subsequently
deleted because the draftsmen felt that really large resi-
dential developments would be considered "commercial" any-
way while no one wanted to reach small housing construction. 13/
Indeed, according to Donaldson Koons, a member of the Environ-
mental Improvement Commission, the bill would be amended
immediately if for any reason Maine courts decided that the
.Law as drawn did not covet residential development. 14/

The Commission views the 20-acre limitation upon
its jurisdiction as the rule of thumb differentiating "com-
mercial" from "residential" activity. It unsuccessfully
pressed for a reduction of the minimum acreage exemption
from 20 acres to 10 acres during the last session of the
legislature. 15/

The Regulatory Agency

Administrative responsibility for the Site Loca-
tion Law was lodged in the Maine Environmental Improve-
ment Commission, an independent commission whose 10 members
are appointed for three-year terms by the Governor with the
advice and consent of the Governor's Executive Council. The
members of the Commission are required to represent various
interest groups"within the state: manufacturing interests
are to account for two-positions; conservationist interests,
two; municipalities, two; and air pollution experts and the
"public," equal numbers. The Commission members receive
$10.00 per day for their services at meetings or hear-
ings. 16/

- 190

The Environmental Improvement Commission has been
in existence in one form or another since 1941. 17/ In
1964, however, its duties were greatly expanded. In that
year the Commission was commanded to "abate and prevent the
pollution of the air, water, coastal flats and prevent [sic]
diminution of the highest and best use of the natural envi-
ronment of the State." 18/ To this end the Commission was
to establish and enforce a classification plan for all the
waters in the state according to the allowable effluent
wastes in both fresh and salt waters, and was also given
the job of controlling oil discharges as well as setting
ambient air quality standards by region of the state.

In 1971 the Environmental Improvement Commission
and a number of other agencies having an environmental
orientation were placed within a Department of Environmental
Protection. The Commission retains its independent decision-
making powers but its administrative services are to be
provided by the coordinated Department, and the Director
of the new Department becomes the Chairman of the Commission
as well..19/ These changes are part of a general plan of
state governmental reorganization. 20/ Bill Adams, the
former Executive Director of the Environmental Improvement
Commission, has been named the Director of the new Depart-
ment. 21/

Also included in the Department is the Maine Land
Use Regulation Commission which is empowered to plan and
regulate the use of land in the "unorganized" counties of
the state. 22/ These counties occupy the northern half of
the state but are largely unpopulated. Almost no development
ment takes place in the unorganized counties at the present
time.

Review of Applications for permits

Application procedures have been forced to fit a
strict deadline prescribed by statute. The Law dictates
that:

Any person intending to construct or
operate a development . . . shall, before
commencing construction or operation,
notify the Commission in writing of his
intent and the nature and location of such

191 -

development. The Commission shall within
14 days of receipt of such notification,
either approve the proposed location or
schedule a hearing. 24/

The Commission has found the 14-day requirement to be com-
pletely unworkable, given the Site Location Bureau's small
staff. The first solution attempted was to solicit waivers
of the 14-day requirement from every applicant, and to
seek to meet the 14-day requirement only when an applicant
refused to sign a waiver. After consultation with the
Attorney General, however, the Commission decided to adopt
the interpretation that it is not "notified in writing"
until it receives an entirely completed application from
the applicant. It then has 14 days from the receipt of the
completed application to decide whether or not to hold the
hearing. 25/

The application itself (called a "Record of
Intent") comprises a 25-page form (condensed from a pre-
vious 68 pages) which ranges across a wide variety of
topics and is designed to elicit the maximum amount of
information from the developer. The application requires
information describing the developer and his associates
(including any professional advisors they may have in their
group capacity), his financial backing, his plan for the
project, an educated estimate of the harm to natural sur-
roundings, a description of provisions made for connections
to water and sewage systems, and any alterations in traffic
access that are expected. The applicant is advised that he
,may consult informally with the staff if he has any questions
concerning the application. However, the staff will not
formally process his petition until it is completed and all
parts of it have been filed, because the Commission feels
that if the staff should actually begin processing an
application it would necessarily have received "notice" of'
the same and would therefore have to approve it or schedule
it for a hearing within 14 days. 26/

Also because of the 14-day requirement, the
applicantreceives blank "request for review" forms which
he must himself send to a number of different state agen-
cies, as well as to regional planning agencies and munici-
palities claiming jurisdiction. The applicant must see
that these forms are filled out and attached to his official
proposal before it is regarded as being "complete" and ready
for filing. On the average the developer must contact four
or five state agencies plus the local and regional agencies
simply to put his Record of Intent in order. 27/

192

Because 'the Commission has no independent or
affiliated investigatory arm its own sources of information
are limited to maps and to aerial photographs. For addi-
tional information it must rely on the application as well
as on the review forms submitted by other state agencies
(some of which may undertake on-site investigations or have
on file previous studies covering the area in question).

Because the statute requires the Commission to
either approve the application within 14 days or schedule
a hearing the Commission has chosen to deal with most appli-
cations by approving-them subject to conditions, which can
amount to a denial if the conditions are sufficiently
onerous. 28/ So far the Environmental Improvement Commission
has received a total of 136 applications. Thirty-five were
declared exempt from the Site Location Law's provisions, nine
were withdrawn, 76 were approved, and 12 are pending. only
four were denied. a9-/

This reliance on conditional approval significantly
reduces the need for commission hearings, which under the
original Law had to be conducted by the full Commission.
The Law was amended in 1971 to permit the Commission to
delegate the hearings, which reduces the concern that the
denial of applications will burden the Commission with a
hearing load greater than it can handle. 301

The Site Location Law declares that decisions are
to be governed by four criteria: ili/

(1) Financial capacity. A proposed development
has the financial capacity and technical
ability to meet state air and water pollu-
tion control standards, has made adequate
provision for solid waste disposal, the
control of offensive odors, and the securing
and maintenance of sufficient and healthful
water supply.

(2) Traffic movement. The proposed development
has made adequate provision for loading,
parking and traffic movement from the
development area onto public roads.

(3) No adverse effect on natural environment.
The proposed development has made adequate
provision for fitting itself harmoniously
into the existing natural environment and

193

will not adversely affect existing uses,
scenic character, natural resources or
property values in the municipality or
in adjoining municipalities.

(4) Soil types . The proposed development
will be built on soil types which are
suitable to the nature of the under-
taking.

Each permit that is granted is made subject to
certain standard conditions, e.g., that approval is limited
to the project as set forth it the application, that all
requisite additional licenses and official consent will be
obtained, and that all information subsequently requested
by the Commission will promptly be provided. 32/ Further-
more, individual conditions, tailored to each separate
development, are usually imposed, often at the behest of
other state agencies. Such conditions seek to insure, for
example, ample water of good quality at the site, improved
roads and traffic circulation patterns, and adequate
sewage disposal.

Specific conditions attached to permits are
usually based on recommendations of other state agencies.
The quality of these recommendations varies significantly
from agency to agency, according to Henry Warren, the
Chief of the Site Location Bureau, but the Commission has
tended to give great weight to the expertise of the Soil
and Water Conservation Commission and the state Highway
Commission whenever they make firm recommendations. 33/
The attitude of the various agencies toward the Law is
somewhat ambivalent, Warren observes. On the one hand
they resent the increased responsibilities given them
without any complementary budget increase, but on the other
hand the Law gives them the power to enforce many types of
criteria that were formerly only advisory. Thus, for
example, the preservation of topsoil on building sites,
long a goal of the soil conservation people, can now be
made a firm requirement. 14/

The construction of central sewage systems is a
typical condition attached to residential development
proposals on the recommendation of the Soil and Water
Conservation Commission. 35/ Informal guidelines have
been published by the Environmental Improvement Commission
dealing with sub-surface sewage disposal, which is a
serious problem throughout New England, owing to the low
absorption capacity of the soil. The Guidelines require

- 194 -

that the provisions of the Maine Plumbing Code be followed,
and that leaching fields for the disposal of sewage be
located at greater distances from waterways when the
percolation capacity of the soil is less adequate, as shown
by the "Soil Suitability Guide for Land Use Planning in
Maine." 36/ It has been estimated that 85 per cent of the
land in Maine is unsuitable for such disposal systems, and
the figure rises to nearly 100 per cent of the land around
lakes, where much of Maine's residential development takes
place.

Legislation enacted in 1971 will enable the
Commission to substitute formal regulations for these in-
formal guidelines on which it now relies. The new amend-
ment replaces the narrow mandate to make reasonable rules
and regulations relating to the conduct of hearings with
the crucial Commission power to "adopt, amend and repeal
such reasonable regulations as it deems necessary to carry
out this Title or any other laws which it is charged with
the duty of administering." -3-8/

Judicial Review

Decisions of the Commission may be appealed
directly'to the Supreme Judicial Court within 30 days.
Review is confined to deciding whether the written record
of the hearing contains substantial evidence to support
the Commission's order, and wheth@ar the Commission acted
"regularly" and "within the scope of its authority."

The judicial review portion of the Law left some
gaps. It provides for appeals from orders issued after a
hearing, but does not deal with the question of appeal from
orders imposing conditions without a hearing. Nor does the
Law deal with the problem of appeal from the commission
order deciding whether or not a development is exempt from
the Law. 29/ Finally, the Site Location Law states merely
that appeal may be carried "to the Supreme Judicial Court"
and neglects to add "sitting as the Law Court," which
specification is customary in Maine for appeals of that
type. LO_/

The Maine Supreme Court resolved some of the ambi-
guities surrounding the statute's judicial review provisions.
In King Resources v. Environmental Improvement Comm'n, 41/
the Maine Court held that the Law's treatment of review is

r
- 195 -

not exclusive, at least where no hearing has been held nor
any order issued, and that appeals would be heard by the
Law Court.

Effectiveness of Administration

Because of the inadequate budget the Commission
has been able to allocate only one staff member and an
assistant to process all site location applications. They
are assisted informally by the staffs of other state
agencies, but the Commission itself has no staff for the
investigation of information contained in applications or
the enforcement of conditions attached to permits. Accord-
ing to those familiar with the background of the Law, the
legislative intent was that the Commission could gather all
necessary information from applicants and from the reviewing
agencies without an investigative-staff of its own, because
any facts which needed to be verified could be investigated
by the appropriate reviewing agency. 42/

At first blush one might surmise that an over-
worked two-man staff sitting in the state capitol would
find it impossible to discover what development was taking
place in a state the size of Maine, so that violation of
the Law would be easy and frequent. Despite its handicaps,
however, most observers feel that the Commission doesn't
miss much. David O'Brien, one of the officers of the
Natural Resources Council, says the Commission has done a
"fantastically good job with a limited budget." 4_a/ From
an opposite perspective, Phillips Lewis, president of Sun
Federal Savings and Loan Association in Portland, observed:
"If their objective is to give overriding consideration to
preservation of the environmentl they've done a hell of a
job." 44/ Al Waxler, retired president of the Homebuilders'
Association of Maine, went so far as to assert that, since
the passage of the Site Location Law, the Environmental
4
Commission has become the most powerful instrumentality in
the state. 4.V

The Commission's general awareness of new
development activity can be attributed to the fact that the
Law has aroused a great deal of public interest, so that
local conservationists usually call the Commission about
proposed developments in their local area. Also, the field
staff of other agencies would be likely to report new
development activity. !16/ moreover, the general economic
conditions in Maine over the past two years have not
stimulated a large volume of development activity. 47/

196 -

But even when one takes into account the adverse
economic conditions prevailing in Maine, combined with a
hypothetical reduction in building activity resulting
from the Law itself, it is surprising that the Commission
has processed only 136 applications in 15 months. 48/
The small quantity probably reflects the fact that the
Commission has been quite selective about exercising its
p61lution-control jurisdiction. Thus, for example,
waste-discharge licenses for emissions into existing
sewer systems have been required only where the effluent
increased the load "significantly," i.e., by 25% or more. 49/
In general the Commission is exercising its jurisdiction
within urban areas only to a limited degree.

The real administrative gap is the failure to
check back to see whether conditions attached to development
permits are being followed. Charles Boothby, director of
the Soil and Water Conservation Commission, described com-
pliance with these conditions as "totally inadequate." .2-0/
The Commission hopes to employ engineering consulting firms
on a part-time basis for field investigations next year. 51/

The absence of staff for investigation and
enforcement has made it difficult for prospective buyers
of real estate to determine whether the property has been
developed-in accordance with the Law. Financial institu-
tions would like to see the Commission issue certificates
of compliance in order to put these doubts to rest.

The IM2act on the Environment

The Site Location Law was-primarily the result
of concern over a number of large oil-oriented industrial
proposals along the Maine.coastline. The public has
therefore awaited with great interest the Commission's
decisions on these proposals.

The first such proposal to reach the Commission
was declared exempt under the Law's grandfather clause by
the Supreme Judicial Court in King Resources V. Environmental
Improvement Commission, so the merits of the case were not
reached by the Court. 53/ The application filed by Maine
Clean Fuels, Inc. had no claim for an exemption, however,
and it was denied by the Commission on July 21, 1971. 5@1/

In the Maine Clean Fuels case a seven-man
corporation, Maine Clean Fuels, Inc., applied to the
Commission for permission to construct a 202,000-barrels-

197 -

per-day refinery on Sears Island in Penobscot Bay. The
applicant argued that its proposal would provide numerous
jobs for the economically depressed Searsport area, but
the Commission refused to consider this issue:

[T]he consideration of economic benefits
that may accrue to the State of Maine or
the Searsport area [is] not included in
the statutory criteria which would allow
the Commission to approve or deny an
application for Site Location approval. @5/

A Notice of Intent to file an appeal was filed
late in August, but Donaldson Koons, who was Chairman of the
Commission at the time of the decision, does not think there
will actually be an appeal. Apparently, Maine Clean Fuels
is not challenging the jurisdiction of the Commission or the
validity of the Law. Rather, it is appealing the decision
on the factual record which, in Koons' opinion, is in such
bad shape that the matter will probably be dropped by the
applicants entirely.

In essence, the Commission objected to the state
of the plan and application submitted as well as the environ-
mental effects of siting a refinery on the recreationally
oriented Penobscot Bay. According to Koons, the applicants
demonstrated a clear lack of.planning in that their cost
estimates varied between $5 and $30 million for the project,
they had no concept as to the turning circle required by the
tankers which would serve the refinery, and the plan presented,
when placed as an overlay over the Island Site, "hung over"
considerably on all sides. Among other things, the record is
said to disclose wholly inadequate financing.by Maine Clean
Fuels, whose sole asset appears to be an import quota of
100,000 barrels per day into Maine. Apparently it would be
the intent of the applicants to arrange for a certain oil
company anxious for an Atlantic Coast foothold to build the
refinery. Koons indicated that in the future such applica-
tions would not be accepted, but that the Commission really
bent over backwards to give the applicants a hearing in this*
case. 56/

But while these two oil refinery cases have captured
the headlines, the number of proposals for heavy industry
has been minimal. 57/ The state's Department of Economic
Development has adopted a policy of "development through
conservation," says Assistant Director Jim Dorsey, and
encourages only light industry to come to Maine..@_8/

- 198

Consequently, the Commission's real workload has
been the processing of-permits for residential subdivisions.
As of August 5, 1971, 83% of the applications processed by
the Commission have been for the construction of housing,
about half of these for seasonal housing. 59/

Some concern is expressed that the Commission's
actions are aggravating the state's housing shortage. The
Director of the State Housing Authority, Eben Elwells,
feels that the Commission's tough attitude toward subdivi-
sions is driving poor people into mobile homes. Mobile
home sales are currently outrunning permanent home starts
by a ratio of three to one! 60/ Portland banker William
Graham feels the Commissioners do not grasp the full econo-
mic implications of their decisions. 61/

The staff of the Commission does not concede that
its subdivision standards are unfair. But the past president
of the Homebuilders' Association, Al Waxler, says he is
personally aware of a number of builders who moved to other
states after the Law went into effect. 62/

Some friction between the Commission and local
reviewing agencies has sprung up when the locality believed
that it was better able to weigh the factors behind an
application. Thus, the planning board for the City of
Portland was annoyed that the Commission should have dis-
regarded its approval of King Resources' application to
build modernized dock facilities in Portland's harbor. Don
Megathlin, head of the Portland Planning Board, stated that
if a situation arose again where his agency and the City
Council favored a project which the Commission subsequently
disallowed, he "wouldn't hesitate one minute to go to court"
to challenge the validity of the Commission's "quality of
design" and "impact on environment" criteria. @3/ Most
local governments, however, seem to be pleased with the
"reasonableness" and "cooperativeness" of the Commis.sion
as presently constituted, and view the Site Location Law
as an extra back-up to their own efforts.

The existing harmony between state and local
government undoubtedly stems from the fact that much of
Maine is wholly without land use controls. only one-third
of Maine's townships are "organized" into municipal corpora-
tions, and of these, only 15% are zoned. Even the state's
capital, Augusta, is without a zoning ordinance. 65/ Many
more municipalities will be exercising land use controls
in the near future, however, because a 1971 statute grants
municipalities authority to "plan, zone and control the

- 199

subdivision of land . . . any part of which [lies) within
250 feet of the normal high water mark of any navigable
pond, lake, river or salt water body . . ." and provides
that "If any municipality fails to adopt zoning and sub-
division control ordinances for shoreland areas . . . by
June 30, 1973 or if the Environmental Improvement Commission
. . . (finds] that particular municipal ordinances because
of their laxity and permissiveness fail to accomplish the
purposes outlined . . ." it shall adopt ordinances for the
municipalities. 66/

Since only 15% of "organized" Maine townships are
zoned there is clearly a good deal of shoreland on navigable
streams (defined as any waterway upon which a log can be
floated) which will fall under the jurisdiction of the Com-
mission. In order to ease the burden of local communities
unused to land use regulation, the Commission plans to set
up some performance criteria which will provide that with
given topographical conditions a local ordinance should
not permit uses in excess of given densities. 67/ Henry
Warren predicts that 85% of the cities and towns of the
state will soon adopt zoning because of this statute. 68/

Some observers believe that in the long run the
Site Location Law may be seen as more of a stopgap remedy
than a permanent solution. James Haskell, Director of the
Land Use Commission, believes that the need will be in-
creasingly recognized for a system of regulation tied into
an overall state plan. 69/ As local governments increas-
ingly adopt land use controls the need for state involvement
will lessen. 70/ State Planning Dire'ctor Phil Savage fears
that the Law's complete emphasis on environmental protection,
and the Commission's inability to even consider social and
economic needs, will some day produce a counterreaction. 71/

The staying power of regulatory programs is
notorious, however, and it would be foolish to predict the
demise of the Site Location program. Bill Adams sees the
future bringing a sharper definition of the Commission's
powers but no weakening of its regulatory authority. 72/
The major question for the future is whether the state can
expand the Site Location Law into a more comprehensive
land regulatory system that leaves the local issues to
local governments but deals with major development pro-
posals in the framework of a broader conception of state
planning than the current Law contains.

4@2-329 0 - 72 - 14

- 200

FOOTNOTES

38 Me. Rev. Stat. Ann. ��481-88 (Supp. 1970). For
a discussion of some of the other legislation see
22 MAINE L. REV. 481 (1970). See also Elizabeth
Haskell, "Managing the Environment: Nine States
Look for New Answers,"'(Smithsonian Institution,
1971).

2/ Interview with Henry Warren, Chief of the Site Loca-
tion Bureau, Environmental Improvement Commission,
August 9, 1971.

3/ The "inland coast" has attracted the majority of new
developments, priced away from elegant spots along
the Atlantic Shore. Interview with Henry Warren,
May 4, 1971.

4/ See John McDonald, "Oil and the Environment: The
View From Maine," FORTUNE (April, 1971, at p. 84).

5/ Interview with Orlando Delogu, Professor of Law,
University of Maine, and member of the Environmental
Improvement Commission, March 24, 1971.

6/ The statement of purpose indicates the major focus,
of the legislation: "The Legislature finds . . .
that many developments because of their size and
nature are capable of causing irreparable damage
to the people and the environment in their surround-
ings, that the location of such developments is too
important to be left only to the determination of
owners of such developments 38 Me. Rev.
Stat. Ann. �481.

7/ Interview with Orlando Delogu, March 24, 1971.

8/ See 38 Me. Rev. Stat. Ann. �488. In 1971 the law
was amended to require permission from the Commission
for transmission lines carrying 125 kilovolts or
more. Interview with Steve Murray, Assistant Attorney
General, August 12, 1971.

9/ Id., at �481.

10/ Id. at �482(2). In 1971 the legislation was amended
to require buildings exceeding 60,000 square feet
of "total floor" area rather than "ground floor"
area to obtain permits.

- 201

ll/ Interview with Orlando Delogu, March 24, 1971.

12/ Interdepartmental Memorandum dated March 5, 1970,
from John R. Patterson, Assistant Attorney General,
to William R. Adams, Director, Environmental Im-
provement Commission.

13/ Interview with Peter Bradford, August 12, 1971.

14/ Interview with Donaldson Koons, then Chairman and
now member, Environmental Improvement Commission,
September 9, 1971.

15/ Id.

16/ 38 Me. Rev. Stat. Ann. �361 (1964).

17/ Interview with Orlando Delogu, March 24, 1971.

18/ 38 Me. Rev. Stat. Ann. �361 (1964).

19/ Public Laws of the 105th Assembly, Ch. 489 (1971).

10/ Interview with Phillip Savage, Director, State
Planning office, August 10, 1971.

21/ Interview with William Adams, now'Director, Depart-
ment of Environmental Conservation, August 11, 1971.

22/ Public Laws of the 105th Assembly, Ch. 457 (1971).

23/ Interview with James Haskell, Director, Land Use
commission, August 10, 1971. When development is
proposed in the unorganized territories the En-
vironmental Improvement Commission by informal
agreement with the Land Use Commission refers the
proposal to the Land Use Commission and abides by
its judgment. Interview with Henry Warren, March
25, 1971.

24/ 38 Me. Rev. Stat. Ann. �482(2) (1970).

25/ Interview with Donaldson Koons, May 4, 1971.

26/ Interview with Henry Warren, March 25, 1971.

27/ Interview with Henry Warren, May 4, 1971.

- 202 -

28/ Id.

29/ Interview with Donaldson Koons, September 9, 1971.

30/ Public Laws of the 105th Assembly,-Ch. 414 (1971).

31/ 38 Me. Rev. Stat. Ann. �484.

32/ Interview with Henry Warren, May 4, 1971.

33/ Interview with Henry Warren, August 9, 1971.

34/ interviews with Henry Warren, March 25 and May 4,
1971. Interview with Roger Mallin, Chief of the
Planning and Traffic Division, State Highway De-
partment, August 11, 1971.

35/ Interview with Charles Boothby, Director, Maine
Soil and Water Conservation Commission, August 16,
1971.

36/ Maine Environmental Improvement Commission, Guide-
lines (undated).

37/ Interview with Donaldson Koons, September 9, 1971.

38/ Public Laws of the 105th Assembly, Ch. 256 (1971).

39/ 38 Me. Rev. Stat. Ann. �487.

40/ Interview with Steve Murray, May 4, 1971.

41/ -King Resources v. Environmental Improvement Com-
mission, 270 A.2d 863 (Me. 1970).

42/ Interview with James Haskell, March 25, 1971.

43/ Interview with David O'Brien, Maine Natural Resources
Council, August 12, 1971.

44/ Interview with Phillips Lewis, Sun Federal Savings
and Loan Association, August 13, 1971.

45/ Interview with Al Waxler, past president (1969-1971)
of the Homebuilders' Association of Maine, August 13,
1971.

- 203

16/ interviews with Henry Warren, March 25 and August 9,
1971.

47/ Interview with William Adams, August 11, 1971.

48/ Interview with Donaldson Koons, September 9, 1971.

49/ Interview with Henry Warren, August 9, 1971.

@O/ Interview with Charles Boothby, August 16, 1971.

Interview with Henry Warren, August 12, 1971.

52/ Interview with Charles Moreshead, Attorney, Augusta,
Mine, August 11, 1971.

53/ 270 A.2d 863 (Me. 1970).

.@4/ In the Matter of Maine Clean Fuel-5, Inc., Site Loca-
tion No. 29-0166-14190 (July 21, 1971).

@5/ Id.

.@6/ Interview with Donaldson Koons, September 9, 1971.

.@7/ None of the other oil terminal proposals have
materialized in the form of an application to the
Commission. Interview with Henry Warren, August 12,
1971.

@8/ Interview with Jim Dorsey, Assistant Director, Maine
Department of Economic Development, August 11, 1971.

@9/ Interview with Donaldson Koons, September 9, 1971.

60/ Interview with Eben Elwell, Director, Maine Housing
Authority, August 13, 1971. See The Maine Times,
October 1, 1971, at p. 2.

61/ Interview with William Graham, head of the real
estate department, Portland Savings Bank, August 13,
1971.

.@2/ Interview with Al Waxler, August 13, 1971.

.@3/ Interview with Don Megathlin, Director, Portland
City Planning Board, August 11, 1971.

204

64/ Id. Interview with William McDonald, Director,
Tn--daskagon Regional Planning Commission; interview
with Merle Goff, City Manager, Bangor, August 12,
1971.

65/ Interview with Donaldson Koons, September 9, 1971.

66/ 12 Me. Rev. Stat. Ann. �4813 (1971). The Land Use
Regulation Commission has the same duty for "un-
organized" townships.

67/ Interview with Donaldson Koons, September 9, 1971.

68/ Interview with Henry Warren, August 12, 1971.

69/ Interviews with James Haskell, March 26 and
August 10, 1971.

70/ Interview with John Salisbury, August 11, 19717
interview with James Haskell, August 10, 1971.

71/ Interview with Philip Savage, August 10, 1971.

72/ Interview with William Adams, August 11, 1971.

205

MASSACHUSETTS WETLANDS PROTECTION PROGRAM

Protection of Massachusetts' coastal wetlands be-
gan in 1963, with the enactment of the Jones Act, l/ which
requires developers who seek to alter the natural ZTharacter-
istics of coastal wetlands (by removing, dredging or filling)
to apply to the Massachusetts Department of Natural Resources
for a permit. The purpose of the Jones Act is to allow the
Department to impose limitations upon such developments suf-
,ficient to help preserve the ecological conditions necessary
for shellfish and marine fisheries. The Act does not au-
thorize the Department to prohibit development.

This limited form of protection-for coastal wet-
lands is gradually being replaced by "protective orders"
issued under the Coastal Wetlands Act of 1965. 2/ Protec-
tive orders issued by the Department prohibit any altera-
tion (except under carefully-controlled circumstances) of
large coastal wetland areas defined and mapped in each order.
The permit requirements of the Jones Act are superseded when
a protective order is adopted for a coastal wetlands area,
because the protective orders are much more restrictive
than the permits.

Protective orders (conservation restrictions) have
now been recorded against 17,915 acres of coastal wetland,
and orders are currently pending against another 25,446
acres. 3/ In the near future, therefore, the Department
will have recorded conservation restrictions covering
44,000 of the approximately 60,000.acres of coastal wet-
lands in Massachusetts. 4/ Thus the Jones Act will soon be
obsolete, except where landowners manage to prevent their
wetland property from being included in a coastal protective
order.

Massachusetts protects inland wetlands under the
Hatch Act of 1965. 5/ Like the Jones Act of 1963, the Hatch
Act requires developers who contemplate projects involving
filling and dredging of inland wetlands to apply to the De-
partment for a permit. The Department, in order to preserve
public and private water supplies and to insure property flood
control, attaches conditions to the permits to limit the
project's detrimental effect on the inland wetlands involved.
No denial of development rights is contemplated. The Hatch
Act is somewhat weaker than the Jones Act, because agricul-
tural lands are exempted.

- 206

Protective orders for inland wetlands, similar
to coastal protective orders, were authorized by the Massa-
chusetts legislature in the Inland Wetlands Act of 1968, 6/
but inland protective orders have not yet been issued by
the Department, and a number of difficulties concerning the
Inland Act may cause inland wetlands to be protected at a
much slower rate, and less completely, than coastal wetlands.

Background of Massachusetts Wetlands Legislation

Very little opposition was offered in 1963 and
1965 to the bills protecting coastail wetlands (the Jones
Act and the Coastal Wetlands Act). 7/ Development pressures
on the coast were not strong, and numerous studies (includ-
ing one by the Department of Natural Resources, which spon-
sored the legislation) demonstrated quite clearly the value
of coastal wetlands for flood and storm protection, recrea-
tion, and the long-term productivity of the fishing industry. 8/

The values of inland wetlands were not yet clearly
established, but the Hatch Act of 1965, offering initial pro-
tection to such areas, was passed easily due to the accep-
tance of the coastal acts, and the fact that inland farmers,
developers, and municipal officials had not been alerted to
the danger that regulation of inland wetlands could deprive.
them ofland for expansion.

By the time the Inland Wetlands Act was first pro-
posed by the Department in 1967, however, the potential ef-
fect of wetlands regulation on the supply of inland develop-
ment sites and agricultural lands had become clear. Also,
the 1967 Department study 2/ of inland wetlands was not as
convincing as the earlier studies of coastal wetlands had
been. Inland wetlands had been popularly considered "mos-
quito havens, wastelands," fit only to be reclaimed for
development, and this attitude was not fully overcome.

Strong opposition was offered against the 1967
bill by realtors, residential developers and by the Farm
Bureau Federation. The bill was defeated in 1967, and
passed in 1968 only after various amendments weakening its
effectiveness had been passed. According to one observer,
the bill would not have passed even then except for the
previous summer's destructive floods in several inland
areas, which had aroused public demands for some sort of
state regulation. 10/ It was ironic that one of the amend-
ments weakened the Department's authority to regulate inland
flood plain areas, leaving such regulation substantially up
to fragmented local control. ll/

- 207

Protection of Coastal Wetlands

I Coastal protective orders are the most significant
portion of the Massachusetts wetlands protection program.
Permits may be required, under the Jones Act, for the al-
teration of the relatively few coastal wetlands not restricted
by protective orders, but the Jones Act has been, or soon
will be, superseded by the Coastal Wetlands Act. Protective
orders issued under*the authority of the Coastal Wetlands
Act are comprehensive in scope (covering entire wetla'nds
areas), and effectively prohibit any substantial development
activity in the area protected. They are adopted only after
extensive local hearings held by the Department.

Many owners apparently welcome the restrictions in
the protective order, realizing that the natural state of
their property will remain undisturbed by any neighboring.
developments because the order prohibits development in the
entire area. 12/ Also, the state emphasizes to owners that
the order does not grant the general public any rights to
use the owners' property, and that the owner retains all
private property rights and the right to enjoy his property
in privacy as long as he does not seek to develop it in vio-
lation of the order. 13/

The purpose of protective orders, as specified in
the Coastal Wetlands Act, is to protect "wildlife and marine
fisheries. The Act gives the Department the authority to
"adopt . . . orders regulating, restricting or prohibiting
dredging, filling, removing or otherwise altering, or pol-
luting, coastal wetlands." 14/ Coastal wetlands which may
be protected by the Department include "any bank, marsh,
swamp, meadow, flat or other low land subject to tidal ac-
tion or coa-stal storm flowage and such contiguous land as
the commissioner [of Natural Resources] reasonably deems
necessary . . . ... 15/ Thus the powers of the Department
under the Coastal Wetlands Act are quite broad, as to both
the type of regulation which can be imposed and the defini-
tion of coastal wetlands which may beprotected. It is
particularly significant that protective orders may cover
meadows and "such contiguous land [to the coastal wetlands)
as the commissioner reasonably deems necessary.11

Delineation of Areas to be Protected

The first step for the protection of coastal wet-
lands is for the Department personnel to gather the informa-
tion necessary to locate such wetlands, decide the precise

208 -

areas to be protected, and determine land ownership in these
areas. The Department has proceeded by consulting with
planning agencies and obtaining copies of all local and
regional plans, as well as any other information pertaining
to wetlands areas which these agencies wish to offer. Local
conservation commissions are also consulted. 16/

Because available maps are almost always somewhat
outdated, Department personnel conduct an on-site investiga-
tion of the area under consideration to determine the loca-
tion and extent of coastal wetlands. The inspection is some-
times done from the air, but that method is too expensive to
be applied generally. Usually the work is done by a man on
the ground; it may require two days to two weeks for a
given town, depending upon the extent of wetlands and the
accuracy of available maps. 17/

When this investigation is completed, the Depart-
ment prepares a tentative map of the area to be protected,
and consults local assessor's maps to determine the ownership
of the land affected. At this stage an effort is made to
include any land, and any landowner, whose wetland status
is uncertain. This tendency to err in favor of inclusive-
ness is based on a desire to avoid the administrative prob-
lems that would result later if an order were eventually
to affect landowners who were not given notice of the public
hearing. Should that happen, the Department would have to
conduct a second hearing for those owners who received no
notice of the first one, and the extra time and expense
would be considerable. 18/

When the proposed order has been prepared by the
Department, those persons registered as owners of the sub-
ject property upon local assessors' maps are notified by
certified mail, at least three weeks in advance, that a
hearing on the order will be held in their local community.
No other private persons are so notified. 19/ Notice is
also given to interested state agencies. ile-arings, con-
ducted by the Commissioner of Natural Resources, are held
in each town in the area covered by the order.

Recently a new feature has been added to the De-
partment's contact with local communities. Before the pub-
lic hearing, Department officials spend a few days in the
town, meeting informally with property owners affected by
the proposed order. These preliminary meetings provide an
opportunity to answer many specific individual questions
that would otherwise consume valuable time at the public
hearing. 2-0-/

209

At each hearing the proposed order is presented
for discussion and officials of the Department explain the
effect of the order and the reasons it will be beneficial
for the particular community. Throughout this presentation
the Commissioner emphasizes that the preliminary order is
only a proposal and that the comments of the members of the
local community are welcomed and will be taken into considera-
tion in preparing the final order. 21/ Following the pre-
sentation by Department officials, Ehe floor is opened to
questions and comments.

At the conclusion of the hearing, the Department
makes available to affected property owners a form on which
they can request a personal appointment with a state officer.
This appointment will usually involve a visit by the state
officer, a marine or wildlife biologist, to the particular
owner's property to explain the effect the protective order
will have. If the request for,an on-site visit reflects
serious objections to the order the visit becomes the first
stage of negotiations between the property owner and the
Department regarding application of the order to particular
property.

Once negotiations with landowners are complete,
the Department draftsmen plot the boundaries of the order
on copies of the local assessor's maps and record these
maps, with copies of the written order, as conservation re-
strictions against the land involved. The orders thereby
are made known to anyone examining the title to the property.

The local hearing process is very time consuming,
because each hearing requires several weeks of staff prep-
aration, as well as the time required to hold the hearing
and revise the order after negotiations with landowners. 22/
At the present time there is only one wildlife biologist@Zo
conducts the on-site surveys to map coastal wetlands and
later visits individual landowners who request a meeting
with a state officer. This same field biologist is also
responsible for investigating all applications for Jones
Act permits, so it is not surprising that progress is often
slow. After a public hearing on a protective order it usually
requires six to nine months to carry out the on-site visits,
prepare the final mapping of the order, and record the order. 23/

It has taken the Department more than five years to
hold 25 hearings covering approximately two-thirds of the
coastal wetlands in the state and to record final protective
orders covering approximately one-third. 24/ Approximately
20 more hearings are planned for remaining coastal wetlands

- 210

areas totaling about 15,000 acres. 25/ At the planned rate
of about one hearing a month, it should require a little
more than two years to hold these hearings and record pro-
tective orders against the remaining coastal wetlands. 26/
Despite the fact that only about one-half of coastal wet-
lands have been protected to date, the Department feels the
coastal program has been successful, and conservationists
in the state seem to agree with the view. 27/ Protective
orders have been recorded or are pending against about 44,000
acres of wetlands property in Massachusetts, and this is
viewed as a significant accomplishment by both the Depart-
ment and conservationists. 28/

Nature of Protective Orders

In final form, a coastal protective order consists
of a written order)accompanied by a map outlining the pro-
tected wetlands. The map can be overlaid on the tax assessors'
maps to show ownership. A reduced version of such a map is
shown on the next page.

The order details uses which are allowed without
qualification (such as recreation, hunting, and maintenance
of wildlife shelters, and grazing of stock), uses which are
allowed subject to certain conditions (roadways, underground
utilities, and mooring slips), and uses which are allowed
only by special permit (excavations for boat channels,
beaches, boat-launching ramps). No uses are allocated to
particular plots within the area of the protective order,
because the Department feels that no one part of a wetlands
area is particularly appropriate for any given allowable
use. Uses are allowed with conditions or by special permit
solely to maintain strict control over any filling and dredg-
ing activity which goes on, not to control the location of
the use.

The orders limit filling or excavation except as
expressly allowed in the order or by special permit, and
provide generally that "no person shall perform any act or
use said . . . wetland in a manner which would destroy the
natural vegetation of the . . . wetland . . . or otherwise
alter or permit the alteration of the natural and beneficial
character of the . . . wetland." 29/

The boundaries of the protected area reflect
negotiations which have been undertaken with landowners.
Where it seems clear to the Department that no economic use
will remain for a given parcel, and the owner is threatening

211

M
OD
ED
M

ADOPTED AND APPROVED
AUGJST 28, 969

ARTO UR W, BRONNELL
COMMI
rn
A,

(U
CO
4j

U,
-PLAN OF LAND IN ESSEX, MASS.
Showing an area to be restricted by the Department of
Nalu ol Resources under the authority of Chapter 130,
Sect on 105 of the General Laws.

SCALE : I" t 400'

(REDUCED FROM TOWN OF ESSEX ASSESSOR'S PLANS)

PLA4 NO. 7 OF 8
N\_

212 -

to protest, the Department would probably alter the boundaries
of the order to allow an economic use or exempt the entire
parcel from the order. The Department has been very reluc-
tant to impose restrictions where eminent domain proceedings
may be necessary. But so far no extensive alterations of
boundaries have been made necessary by landowner objections,
because relatively few owners have raised objections. 30/

Relatively few property owners in the protected
area even file a request for an on-site visit by a state
official. over the last several hearings the requests for
such special visits have represented an average of about
5% of the landowners affected. 31/ Furthermore, most
such requests do not reflect serious objections to the
protective order. Many involve owners who are basically
unopposed to the restriction and have no special problems
on their land but want specific reassurances as to the effect
the order will have. Many others involve real but minor
questions about private beaches, boat channels, or other
small-scale activities, some of which are often permitted
by the conditional use and special permit use provisions of
the protective order. The state officer can usually nego-
tiate a reasonable solution with the owner. The field biol-
ogist and his superiors in the Department are careful not
to allow uses which violate the purposes of the program, but
they try to accommodate reasonable requests and desires on
the part of owners. 32/

A third, but very small category of requests con-
sists of those from owners who received notice of the public
hearing but actually own no wetlands. These cases arise
from the tendency toward overinclusiveness mentioned earlier
and are settled easily once the mistake is discovered.

The most significant requests for on-site visits
are those from people who oppose strongly the restrictions
embodied in the protective order. Some of them do not oppose
the intent of the Act and the order but dislike state imposi-
tion of protective measures. others care little about the
environmental aspects of the program and are concerned pri-
marily about the value of their real estate investments.
Both types are likely to make demands that the field officer
cannot meet and further negotiations with the Department are
necessary. Contact with higher officials may soften their
resistance, but, in any event the Department has apparently
been forced to make very few important concessions. 33/

213

If a negotiated settlement acceptable to the
owner cannot be achieved, the difficult review procedure
acts as an effective deterrent to continued objection in
many cases. Consequently, the number of formal objections
that are eventually filed is very low.

There has been no change of boundaries by the De-
partment once initial negotiations with owners are complete
and an order is finally adopted, although the Department has
the authority to "amend" the orders. 14/ The Department views
these orders as permanent conservation restrictions on wet-
land areas, and does not contemplate allowing individual land-
owners to petition for removal of the restriction from their
land once the order is finally adopted.

Role of Local Authorities

On its face the Coastal Wetlands Act provides no
role for local authorities. The statute does not even re-
quire that local officials be notified on the hearing which
is to be held in their area. No separate hearing is held by
the town government, and no recommendations are to be sub-
mitted by the local government to the Department of Natural
Resources. According to the terms of the statute, the De-
partment could promulgate an order restricting various uses
in coastal wetlands, without consulting local authorities at
all.

Actual practice under the Act, however, involves
the,Department in informal consultation with town officials
at various stages of the proceedings. Although the Depart-
ment does not ask for recommendations while the proposed
order is being prepared, state officials, including the
Commissioner himself, usually meet with the town board of
selectmen before the public hearing is held and explain the
purpose and operation of the protective order. 35/ In some
cases local officials not only welcome the regulation but
encourage the Department to enlarge the protected area, 36/
while in others there is local resistance to such state
intervention in what is regarded as a matter for the local
conservation commission.

Quite apart from the Coastal Wetlands Act, some
towns have purchased substantial areas of salt marsh to pre-
serve them from development, 17/ and this type of local action
has facilitated state efforts at protection. Where a local
government has purchased wetland for conservation purposes,
that land is unlikely to become the subject of serious land-
owner objections to the protective order.

214

Some town boards have express ed a desire that the
state include in the program provisions limiting the real
estate tax assessments that can be imposed on private prop-
erty subject to protective orders. 38/ Under present ar-
rangements the valuation lies within the discretion of the
local board of assessors, and some town governments ask that
the state take affirmative action to guarantee tax relief.to
owners of restricted property. Such a guarantee, they main-
tain, would reduce objections of local property owners. (This
apparent anomaly of local legislative bodies actively seeking
what amounts to a reduction in their tax income can be ex-
plained bythe fact that most wetlands are assessed at a
fairly low level in the first place.) In any event, legis-
lation to provide for such limitation on assessments will
be introduced in the 1972 legislative session. 39/ The De-
partment recognizes the importance of this probf-em, but so
far has avoided taking any official position regarding
state-imposed tax relief. 40/ Apparently the Department
wishes to avoid the intense political debate such an effort
might open up, because it might stimulate unfavorable atten-
tion to the entire wetlands protection program.

Generally the towns in coastal areas have shown
little active interest in regulating use of wetlands and
are content to leave such regulation to the state. There
are exceptions, however. The Town of Duxbur.y was interested
in regulating and protecting its own wetlands. In that case
the Department had no objection to allowing the town to hire
its owns experts, plan the regulation of the wetlands, and
in effect d'o all the work ordinarily done by the Department.
Most towns, however, are unwilling or unable to undertake
such a program and prefer to accept state regulation.

One important aspect of the state-local relation-
ship in the coastal wetlands protection program is that a
protective order recorded by the Department does not pre-empt
more restrictive local regulation of wetlands. It is still
open to town boards to adopt further restrictions if it should
wish to do so. 41/ State action in subjecting an area to
protective orders is not intended to reflect on the adequacy
of local action already taken or likely to be taken in the
near future. Rather the Department hopes to provide a mini-
mum level of comprehensive protection for all coastal wet-
lands in the state and leave each local community free to
tighten restrictions according to its own desires.

215

Judicial Review and Eminent Domain Proceedings

After a final order has been recorded and notice
sent to property owners, there are quite strict provisions
governing judicial review of the order. The Coastal Wet-
lands Act permits an objecting landowner to petition the
superior court for review of the order as it affects his
land, but such action can only be taken during the 90-day
period after the owner receives notice of the final order.
The remedy which the court may grant is limited by the terms
of the Act to vacating the order as it applies to the parti-
cular property. These limitations are specifically desig-
nated in the statute to be the exclusive methods of chal-
lenging coastal protective orders. 42/

After the 90-day period has expired for a parti-
cular landowner, he is allowed no appeal under the statute;
and a court finding that an order is unreasonable with re-
spect to a particular piece of property is not to affect any
other land. If the Massachusetts courts uphold these limi-
tations, coastal orders will be substantially free from legal
challenge shortly after they are recorded and owners are
notified, and the state will be relieved of the potential
burden of paying compensation.

Courts in Massachusetts appear to be generally
sympathetic to full protection of wetlands areas, but thus
far no court decision has dealt with the validity of the
90-day limitation on petitions for judicial review. 43/
it is conceivable that the courts will recognize the limita-
tion as a reasonable effort to settle conclusively the sta-
tus of protective orders. 44/

Under the terms of the statute, if the superior
court finds an order to be "an unreasonable exercise of the
police power because [it] constitutes the equivalent of a
taking without compensation," the court is to enter a find-
ing that the order shall not apply to the land so affected. 45/
If such a decision is reached by the court, the Department
has the option of instituting eminent domain proceedings to
take the property, which could involve the landowner in a
second court suit. The Department has between $300,000 and
$400,000 available for condemnation award purposes should
it ever have need of it. 46/ However, the Department has
never had to exercise its eminent domain powers in any of
the 14 coastal areas where protective orders have been
issued, and a number of factors appear to have contributed
to this situation: caution on the part of the Department in
drawing up the orders, the burdensome procedures a landowner

452-329 0 - 72 - 15

- 216 -

would have to follow if he wished to challenge an order, and
general acceptance by owners of the restrictions imposed.

The relatively small number of serious objections
.seems to indicate substantial owner acceptance of the orders,
but at least some landowners who might otherwise object are
probably deterred by the two court actions which are required
if negotiations with the Department are unsatisfactory.
Even if an objecting owner succeeded in permanently re-
moving an order from his property, he would still be re-
quired to apply for a permit under the Jones Act for any
filling or dredging he wanted to undertake.

Because of such difficulties for the landowner,
only about 20 owners of the several thousand-affected by
coastal orders have gone to court. 47/ Furthermore, several
of these cases arose out ofadministrative errors and were
settled by consent decree. 48/ All but one of the cases
were settled before going to trial, but it is not clear
what concessions the Department may have made to obtain some
of the settlements. Apparently the state is unwilling to
concede very much, at least in cases involving major develop-
ment activity, because the Department has gone to the Supreme
Judicial Court of Massachusetts in Commissioner of Natural
Resources v. Volpe involving a 60-acre tract held by a con-
struction company. The report of the master in the Superior
Court was extremely unfavorable to the state, 49/ and the
decision in the Supreme Judicial Court could have an impor-
tant impact on the wetlands protection program. A decision
against the validity of the protective order might trigger
additional challenges by other owners, including challenges
to the 90-day appeal period. However, Department officials
emphasize that even a decision against the order in the
Volpe case, unlikely in any event to be reached for another
year, will affect only the one site and that few owners are
likely to be encouraged to institute additional petitions. 50/

Protection of Inland Wetlands

The Hatch Act requires developers to apply for
permits to alter inland wetlands (excluding agricultural
lands) while the Inland Wetlands Act provides for the issu-
ance of protective orders for inland wetlands (also exclud-
ing agricultural lands, as well as "meadows"--seasonally
wet flood plain areas. 51/).

Under the permit system provided in the Hatch Act
protection of inland wetlands is relatively weak compared to

- 217 -

that afforded by coastal protective orders, for a number of
reasons. First, the Department does not concern itself with
a wetland area until a landowner decides to begin work on a
project, at which time the landowner is required to apply for
a permit. The Department must thus rely on obtaining an ap-
plication from the owner once he decides to begin filling or
dredging. Since the Department does not have a program to
inform owners of wetlands about the permit requirements, this
can cause some difficulties because a landowner often will
not have notice of the statutory requirements.

Even if an owner is aware of the Hatch Act, he
may be uncertain about whether it applies to his land and
his activities. For example, his land may be wet only dur-
ing a portion of the year, as in a flood plain area, and
he may not think himself required to file for a permit.

A further weakness of inland permits, as compared
to coastal protective orders, is that the permits do not
prohibit development and thus preserve wetlands in their
natural state but merely impose conditions upon development
activity to minimize damage to the wetlands involved. As
discussed in a later section, inland protection orders which
can prohibit development, have not been particularly effec-
tive. Moreover, the exemption for agricultural lands weakens
the overall effectiveness of the Hatch Act.

Under the Hatch Act a permit is required whenever
a landowner seeks to undertake filling, dredging, or remov-
ing of "any bank, flat, marsh, meadow or swamp bordering on
any inland waters . . ." on his property. @2/ The purpose
of the permit requirements is to protect inland wetlands
which are essential to public and private water supply or
proper flood control. Public agencies not specifically
exempted by the Act have been required by the Department to
apply for permits whenever such agencies undertake filling
and dredging in an inland wetland area. 53/

The application for a permit and its processing
are relatively simple. The applicant merely prepares four
copies of his.application, which does not show all aspects
of the development, but which must locate the project, in-
dicate the areas of fill and dredging, and describe measures
taken to reduce harm to the flood control and water supply
capacity of the wetland involved. General information on
the nature of the project and its estimated completion date
is also required.

Two copies of the application go to the Department,
one to the town or city having jurisdiction, and one to the
Department of Public Works. Prior to any final decision on

I - 218

the permit by the Department, the municipality involved
holds a hearing (within 20 days of receiving a copy of the
application) and issues recommendations to the Department
as to "such protective measures as may protect the public
interest . . . ." 54/ The local recommendations are not
particularly usefuf-for final decisions on permits, ac-
cording to the Department administrators, because the local
government usually suggests denial of the permit, for which
the Department lacks the authority, or recommends conditions
beyond the scope of the Department's powers. 55/ However,
municipalities need not allow a development to proceed under
a Department permit, since they may adopt their own more
restrictive regulations. 56/
41.
At the same time the municipality is considering
its recommendations, several state agencies are also review-
ing the project. The Department of Public Works is given
the statutory duty to impose measures necessary to protect
navigable waterways. 57/ It will consult with the owner
and with the Department, then send its decision to each.
The Department of Public Health makes recommendations re-
lating to the effect of the project on the quantity and
quality of the public water supply. The Division of water
Resources (within the Department of Natural Resources)
investigates possible flood control consequences. 58/ The
Department of Natural Resources normally incorporates all
these recommendations in the special conditions attached
to the permit, giving substantial weight to the opinion of
reviewing agencies in the final content of the permit. 59/

Final approval by the Department of a permit is
not subject to any time limit, but nothing in the terms
of the Hatch Act prevents a landowner from proceeding with
his filling or dredging 30 days after filing notice of in-
tent with the proper authorities. 60/ This means that the
Department must act quickly to ensure that the conditions
which it imposes will be effective from the very outset of
the activity at the site. Usually, therefore, a permit is
issued within a short time after receipt of the local recom-
mendations. No formal hearing is held, but "informal" con-
sultations amounting to a hearing are usually held at the
Boston offices of the Department. Where a major project is
involved the Department@schedules a preliminary conference
with the developer at which the entire process is explained
and the specific requirements are set out.

The permit is always issued on a standard form,
containing standard conditions. The standard permit form
used by the Department contains only one condition relating

219 -

to the protection of wetlands--that any fill used on the
project will be clean fill. Any special conditions re-
garding the amount or location of fill or dredging must be
typed in. 61/ Wetlands program administrators -state that,
for any major inland project, a state conservation officer
will visit the site and make recommendations as to any spe-
cial conditions to be attached. 62/

The limitation in the Hatch Act that the Depart-
14 ment merely impose conditions rather than deny permits and
thus prohibit development, was included because the legis-
lature feared that outright denials could not be sustained
under the police power. t3/ The power to impose conditions
@01 is itself restricted to narrow categories. The Department
may impose only such conditions as are "essential to public
or private water supply or'to proper flood control." 64/

This narrow scope of state review under the per-
mit system has caused both municipalities and conservationists
to be disturbed, for somewhat different reasons. Municipali-
ties would like the Department to impose conditions which
would, for example, exclude an undesirable subdivision, pro-
hibit buildings above a certain height, or totally preclude
development in a wetland area they wish to protect., 65/ The
Department has refused to include such conditions.

Conservationists are concerned because they feel
that the conditions-which are attached to permits are totally
insufficient to protect wetlands. one conservation lobbyist
in the state contends that nine of 10 developments are al-
lowed to proceed with no substantial conditions whatsoever
being imposed. �6/

One reason for the Department's refusal to impose
broad conditions on most projects is that it is difficult
for the Department to find sufficient reasons to prohibit
'4 an individual owner from filling or dredging, because in
its judgment the ill effects on the environment from the one
project involved are negligible. It feels that for most
wetlands areas, only the cumulative effect of hundreds of
individual projects will have a significant impact on ecology,
water quality, or flood control. Regardless.of whether
stronger conditions could be imposed by the Department, it
seems clear that the protection of wetlands offered by in-
land permits is substantially weaker than that provided by
coastal protective orders.

Permits for Alteration of Inland
Wetlands in Massachusetts

Department of Natural Resources (Division - Review Agencies:
of Conservation Services): Issues permits Department of Public Works
with conditions (no permits are denied) (navigable waterways)
which are recorded as conservation re- Department of Public Healt'.
strictions against land involved. Inland (Public water supply)
permits protect areas essential to flood Department of Natural Resources
control and water supply. * Division of Water Resources
L (flood control)

Local Government Hearing: Local govern- On-Site Inspection: (for major
ment. having jurisdiction over the wetlands projects). State conservation 0
involved holds a hearing on the applica- officers visit the sites and
tion for a permit, submits recommendations recommend special conditions to
to the Department of Natural Resources be attached to permits.
for conditions to protect public interest.

Applications: Submitted to DNR, DPW,
DPH, and to local government. Contain
basic information identifying the nature
and
location of the project, and the
extent of filling and dredging.

221

Inland Protective Orders

A somewhat greater degree of protection for some
inland wetlands may be offered by inland protective orders,
although this will be impossible to determine until inland
orders are issued. For a number of reasons, the inland
protective order system appears likely to be much less ef-
fective than the coastal system.

First of all, although the Department's power to
"adopt . . . orders regulating, restricting or prohibiting
dredging, filling, removing, or o,therwise altering or pollut-
ing inland wetlands" is virtually identical to the mandate
of the Coastal Act, 67/ the definition of inland wetlands
which may be subject'@_d_ to a protective order is quite narrow.
The definition includes "any marsh or swamp bordering on
inland waters, or any marsh or swamp subject to flooding by
fresh water." 68/ This definition excludes areas subject to
only seasonal flooding, 69/ and thus removes the Department's
ability to regulate flooi-plains, even though one of the
purposes of the Inland Act'is stated as the protection of
"flood plain areas." Areas subject to seasonal floods were
originally included in the bill which became the act regu-
lating inland wetlands. This provision was deleted, however,
at the insistence of the Massachusetts Farm Bureau Federa-
tion, in spite of the Act's agricultural exemption. The
reason appears to be a fear that such regulation would pre-
vent a "hard-working farmer" from selling out for real estate
development. 70/

A second weakness of the Inland Act, as compared
to the Coastal Act, is that it does not provide the Com-
missioner of Natural Resources with any authority to regulate,
as he reasonably deems necessary, land "contiguous" to wet-
land areas. This authority as applied in the coastal wet-
lands prevents jurisdictional disputes over the exact bound-
4 ary of the "wetlands" as defined in the statute.
A third weakness of the Inland Act is the objecting
landowner's right to "veto" a protective order merely by
sending a registered letter to the Department within 90 days
noting his objections. No court action is involved. If the
Department is unable to amend the order to the owner's satis-
faction, it must attempt to purchase the land, paying a fair
marked price or take it by eminent domain. Any eminent do-
main proceedings by the Department must be authorized by the
Governor and his Executive Council as well as by the Board of
Natural Resources.

222

Thus the Inland Wetlands Act appears in reality
to be little more than an authorization to the Department
to negotiate with landowners for a voluntary relinquishment
of development rights to their property, or a sale of such
rights to the state. It is possible that, as under the
Coastal Act, most owners will simply not object, allowing
the 90-day objection period to lapse and the order to be-
come effective as to their property. on the other hand,
inland landowners may react to protective orders under the
Inland Act much differently than coastal landowners reacted
to coastal protective orders--perhaps because of less regard
for the ecological value of inland wetlands in their natural
state, greater economic incentives for development, or simply
because of less burdensome objection procedures.

Where parcels are removed from inland orders by
landowner veto, the Department hopes to convince local con-
servation commissions to acquire the parcels, using the argu-
ment that "the community would be eligible for up to 75%
reimbursement of the cost of acquisition through the State
Self-Help Program and Federal HUD and BOR funds." 71/ Fail-
ing this, the Department administrators point out that a
permit would still be required for any filling and dredging
activity under the Hatch Act. Again, since the inland pro-
gram is not yet in full operation, it is impossible to say
how effective such measures may be.

In addition to providing for a landowner veto,
the Inland Act also provides for a one-year delay of inland
orders by a local government having jurisdiction. After the
local hearing on the inland order, the Department will pre-
sent a final version of the proposed order to the municipality
for its approval. If the community does not act within 30
days the order is deemed approved. If the community decides
to delay the order, the Department may, after the expiration
of one year, adopt the order anyway with respect to the town's
area.

It is impossible to say at this time how many in-
land communities will wish to delay protective orders cover-
ing wetlands within their jurisdiction, but at the preliminary
hearing in Wellesley in January, 1971 on the first proposed
inland order, 72/ strong objections were raised by the local
community. 73/ In many towns throughout the state dumping
areas are located in wetlands. Attempts to prohibit the use
of those areas for such purposes is likely to provoke re-
sistance both from local residents who do not want the new
dump established near their homes and from local governments
who do not welcome the expense involved in acquiring land for
a new dumping area.,74/

- 223

Aside from the difficulties created by the provi-
sions of the Inland Act itself, a number of administrative
difficulties exist which have prevented inland orders from
being issued by the Department even though the Act was
passed in 1968. First of all, there are simply more inland
wetlands than coastal wetlands (300,000 acres). 75/ Also,
inland wetlands are much more difficult to identify, and
the Department has had to provide for aerial photographs,
as well as soil sampling, in order to map inland wetlands
to be protected. 76/ Moreover, inland wetland areas are
scattered around '@he entire state rather than being concen-
trated on the coast, and many inland wetlands are small and
isolated.

These difficulties, combined with the requirement
of local hearings on each order, may make the Inland Act
unworkable. More local communities will have to be consulted
for each inland order than on the coast, because numerous
inland communities may have jurisdiction over the wetland
areas to be protected, while on the coast only one or a few
communities would be involved. About 300 separate local
governments will be involved in the protection of inland
wetlands, compared to a total of about 45 towns involved
in the coastal wetlands protection program. 27/

The Department anticipates that it will be able to
hold only about one inland hearing every four to six weeks. 78/
A conservationist in the state has estimated that at this ra@_e
it will take the Department 30 to 40 years to protect inland
wetland areas. 79/ The Department administrators are reluc-
tant to speed up the hearing process for fear that landowners
will be able to attack the proceedings for lack of due pro-
cess. The Department hopes to be able to allow local con-
servation commissions to take over much of the burden of
holding hearings on inland orders, but it is not clear whether
this will be possible, or how much it will speed up the hear-
A$ ing process.
At the present time hearings on inland protective
orders have barely begun, and the Department plans to work
with the present statutory arrangements before recommending
major changes. After several hearings have been held, the
Department may ask for legislative changes to make the in-
land wetlands program more effective. Two specific proposals
are under consideration: First, the objection procedure
may have to be changed so that property owners would have
to appeal to the courts rather than simply object to the
Commissioner. In other words, the review procedure would be
made more nearly equivalent to that under the Coastal Wetlands

224 -

Act. The other major change would involve statutory au-
thorization to hold inland wetland hearings on a regional
basis rather than town by town. In that way the time re-
quired to establish protective orders throughout the state
would be substantially reduced. 80/

Investigation and Enforcement Procedures

The Department does not have an investigative
force of its own to supervise projects for compliance with
permit conditions or to supervise land covered by protective
orders, nor does any official program exist for determining
if all projects in wetlands areas are applying for permits
where the area is not covered by a protective order. State
conservation officers and marine biologists perform some of
these functions, but not on a regular basis. The-only method
which has been adopted by the Department for investigation
and enforcement has been to publicize an "environmental hot-
line" in their office where unauthorized projects may be
reported and any question about the requirements of the
wetlands legislation answered. 81/ The Department admini-
strators feel that citizen participation has been fairly
high and that most significant projects have been reported.

Public acceptance of environmental regulation of
this kind has improved noticeably in the last few years,
according to one state official who has had substantial
contact with property owners themselves. g2/ The Depart-
ment reported that during the fiscal year ended June 30,
1971, it received more than 100 complaints alleging vio-
lations of Jones Act permits and nearly 300 complaints of
Hatch Act permit violations. These complaints are referred
to the Department's Division of Law Enforcement, which has
officers throughout the state to investigate the allegations.
Violations which are not corrected upon the order of the
officer are referred to the Attorney General, and 15 such
referrals were made during fiscal 1971. In most of those
cases, the Attorney General quickly proceeds to obtain an
injunction against further activity in violation of the
permit. 83/

In sharp contrast to the large number of com-
plaints under the Jones and Hatch Acts, there have been no
reported complaints concerning violations of protective
orders under the Coastal Wetlands Act. With no comprehen-
sive surveillance system, Department officials admit that
they do not know how accurately this reflects actual activi-
ties in the protected areas, but they believe that it indi-
cates general compliance. 84/

- 225 -

The Department has processed over 1,300 coastal and
inland permits, including a total of 470 permits processed
in fliscal 1971. 85/ It appears, therefore, that developers
are not avoiding compliance with the permit requirements.
Perhaps developers do not view the conditions imposed by
the Department as sufficiently restrictive to warrant ef-
forts at evasion, but the necessity of going through the
permit procedure is itself apparently discouraging small-
scale development that might otherwise occur. 86/

The private market mechanisms have also assisted
in obtaining compliance with permits and protective orders.
Both protective orders and permits are recorded as conserva-
tion restrictions against the land affected. 87/ The De-
partment personnel feel they have been fairly successful in
convincing large financial institutions to require that
developers obtain permits or comply with protective orders
before final loan approvals will be granted. In addition,
for the sale of lands burdened by the Department conserva-
tion restrictions, Department officials state that they have
convinced many financial institutions and title insurance
companies to require that the vendor obtain a certificate
from the Department stating that the land continues--E-o com-
ply with the restriction. By these means, the Department
has attempted to make compliance with the wetlands program
a part of the everyday business of the rural developer in the
state.

Conclusion

While permit requirements have probably been in-
effective in protecting Massachusetts wetlands, coastal pro-
tective orders have been somewhat more effective. With
more than two-thirds of coastal wetlands covered by protec-
tive orders, either recorded or pending, the consensus is
that the coastal program has been a qualified success--
qualified only by the considerable time required to issue
the orders. Conservationists appear to be satisfied with
the restrictions contained in coastal orders once adopted
and with the fact that about half of the coastal wetlands
in the state have now been protected., and that orders are
or soon will be pending against most of the rest. 88/
Satisfaction has been expressed by both conservationists
and the Department personnel that actual negotiations have
been required with only about 100 owners and that only one
objection will come to trial in the courts. 89/

- 226

Strong doubts have been expressed as to the
probable effectiveness of the Inland Act, however. Land-
owner objections can be raised more easily against inland
orders, and a large number of parcels may be exempted,
reducing the effectiveness of the orders. More importantly,
if the Department adopts a local hearing schedule which
will in fact only bring a level of protection for inland
wetlands similar to that on the coast after 20 to 30 years,
the value of the inland program will be questionable. if
these problems cannot be worked out either administratively
or through additional legislation, it may be necessary to
abandon the protective order system for inland wetlands and
devote more serious attention to a program of public pur-
chase of these wetlands. 90/

- 227

FOOTNOTES

130 Mass. Gen. Laws Ann. �27A (Supp. 1971).

2/ 130 Mass. Gen. Laws Ann. �105 (Supp. 1971).

3/ Restrictions Recorded

1. Ipswich 3,500 acres
2. Quincy 137
3. Pembroke (2 hearings) 145
4. Wareham 77
5. Marshfield 633
6. Norwell 460
7. Hanover 13
8. Newburyport 2,200
9. Essex 1,150
10. Westport 2,100
11. Rowley 2,400
12. Salisbury 4,650
13. Newbury 450
17,915 acres

Hearings Held, Restrictions Pending

1. Scituate 486 acres
2. Gloucester 1,100
3. Marion 400
4. Duxbury 4,260
5. Marshfield 2,170
6. Wellfleet 1,920
7. Eastham 3,710
8. Orleans 3,975
9. Chatham 6,595
10. Harwich 830
-25,446 acres

Memo from George R. Sprague, Director of Conservation
Services, Department of Natural Resources, on progress
of Coastal Wetlands Protection Program as of June 30,
1971; interview with George R. Sprague, August 9, 1971.

4/ A 1963 study determined that there are approximately
40,000 acres of actual coastal wetlands in Massachu-
setts, but many Coastal Protective Orders cover some
additional flatlands; so that the total acreage the
Department plans to include is approximately 60,000
acres. Telephone conversation with George R. Sprague,
August 16, 1971.

- 228 -

5/ 131 Mass. Gen. Laws Ann. �40 (Supp. 1971).

6/ 131 Mass. Gen. Laws Ann. �40A (Supp. 1971).

7/ Interview with Benjamin Nason, Executive Director,
Massachusetts Forests and Park Association, Boston,
Massachusetts, March 30, 1971; interview with George
R. Sprague, May 3, 1971.

8/ Id.

9/ Massachusetts Department of Natural Resources, Report
on the Inland Wetland and Flood Plain of the Common-
wealth, June 5, 1967.

10/ Interview with George R. Sprague, May 3, 1971.

ll/ For a discussion of the adequacy of local flood plain
regulation, see Department of Natural Resources Report,
supra note 9, at pp. 14-15.

12/ Interview with Alden E. Cousins, Land Use Administra-
tor, Massachusetts Department of Natural Resources,
Boston, Massachusetts, March 30, 1971.

13/ Massachusetts Department of Natural Resources, notice
of hearing on Duxbury protective order, July 24, 1970.

14/ 130 Mass. Gen. Laws Ann. �105.

15/ Ibid.

16/ Interview with Alden E. Cousins, March 30, 1971.

17/ Interview with Michael Hickey, Wildlife Biologist,
Division of Marine Fisheries, Massachusetts Department
of Natural Resources, August 6, 1971.

18/ Ibid.

19/ Interview with George R. Sprague, September 7, 1971.

20/ Interview with Alden E. Cousins, August 9, 1971.

21/ Public hearing on coastal wetlands protective order
for the Town of Harwich, August 5, 1971.

22/ Interview with George R. Sprague, May 3, 1971.

- 229

23/ Interview with Michael Hickey, August 6, 1971.

24/ Interview with George R. Sprague, August 9, 1971.

25/ Telephone conversation with George R. Sprague, August
16, 1971.

26/ The Department has been willing to allow local com-
munities to take over much of the process and free its
staff for other work, but the problem has been that few
coastal communities have the necessary money or expert
staff.

27/ Interview with Benjamin Nason, March 30, 1971.

28/ Id.; letter from Massachusetts Department of Natural
i@e_sources to Mr. Christopher E. McGahan, Administrative
Assistant to Majority Leader of Wisconsin Legislature,
January 22, 1971.

29/ See Massachusetts Department of Natural Resources,
order under General Laws, Chapter 130, Section 105,
No. 768-71-_(pending), for the Town of Harwich.

30/ Interview with Morris J. McClintock, Executive Director,
Conservation Law Foundation, Boston, Massachusetts,
March 29, 1971.

31/ The state officer who has conducted the on-site vis 'its
for the last seven towns reports that out of approxi-
mately 3,000 landowners affected by the proposed orders,
there have been 130 to 140 requests for on-site visits.
The number and percentage varies considerably from town
to town. In one town several hundred property owners
there were only two or three such requests, while in
Harwich there were only 190 property owners involved
but about 30 requests. Interview with Michael Hickey,
August 6, 1971.

32/ Ibid.

33/ Interview with George R. Sprague, August 9, 1971.

34/ 130 Mass. Gen. Laws Ann. �105.

35/ Ibid.

36/ Interview with Arthur Griffin, Member, Board of Select-
men of the Town of Harwich, August 6, 1971.

230

37/ Several years ago the Town of Harwich purchased a 216-
acre tract of salt marsh that a large developer planned
to fill and subdivide for a 400-unit development. How-
ever, sufficient public support for such a step arises
only where a very large, visible threat appears. Ibid.
The Town of Brewster has also purchased wetlands as a
conservation measure. Interview with George R. Sprague,
August 9, 1971.

38/ Interview with Selectman Griffin, August 6, 1971.

39/ Interview with George R. Sprague, September 7, 1971.

40/ Statement by Arthur W. Brownell, Commissioner of Natural
Resources, Massachusetts Department of Natural Resources,
at the public hearing on the coastal wetlands protective
order for the Town of Harwich, August 5, 1971; inter-
view with Alden E. Cousins, August 9. 1971.

41/ Statement by Commissioner Brownell at the Harwich pub-
lic hearing, August 5, 1971. See Golden v. Board of
Selectmen of Falmouth, 265 N.E.2d 573 (Mass., 1970).

42/ 130 Mass. Gen. Laws Ann. �105.

43/ See, e.g., Golden v. Board of Selectmen of Falmouth,
265 N.E.2d 573 (Mass., 1970); Commissioner of Natural
Resources v. Volpe, Suffolk Superior Court in Equity
No. 82-36, March 9, 1964; Perry v. Director of Marine
Fisheries, Bristol Superior Court in Equity No. 8412,
October 1967. The latter two trial court opinions
are reproduced in Massachusetts, Metropolitan Area
Planning Council, open Space Law: Government's In-
fluence over Land Use Decisions, April, 1969, at Ap-
pendix 5. But see the opinion of the Massachusetts
Supreme Court on appeal in the Volpe case, where the
Court noted that conditions imposed upon a permit
could constitute an unconstitutional taking of prop-
erty without compensation, and remanded a case to the
trial court for a finding on this issue. Commissioner
of Natural Resources v. Volpe, 206 N.E.2d 666 (Mass.
1965).

44/ Interview with George R. Sprague, August 9, 1971.

45/ 130 Mass. Gen. Laws Ann. �105.

46/ 'Interview with George R. Sprague, September 7, 1971.

231 -

47/ Interviews with Alden E. Cousins, March 30, 1971 and
Morris J. McClintock, March 29, 1971. ,

48/ Interview with George R. Sprague, August 9, 1971.

49/ Ibid.

50/ Interview with George R. Sprague, September 7, 1971.

51/ Interview with Alden E. Cousins, March 30, 1971.

52/ The language is the same in both the Hatch Act and
the Jones Act, but the Hatch Act (inland wetlands)
provides an exemption for agricultural land.

53/ Mosquito control and swamp reclamation projects, which
are now rare, and some projects of the Department of
Public Works, are exempted. Interview with Alden E.
Cousins, March 30, 1971.

54/ The text refers to the Hatch Act. Under the Jones
Act the municipality has 14 days within which to hold
a hearing, and recommends "the installation of such
bulkheads, barriers or other protective measures as
may protect the public interest

55/ anterview with Alden E. Cousins, March 30, 1971.

56/ At least one municipality has not recognized this, and
has complained bitterly about the Department's approval
of an application which the municipality had recommended
be denied. The municipality even brought in an 800-
signature petition. Letter from Town of Chelmsford
to the Department of Natural Resources, dated March 16,
1971. However, the Massachusetts Supreme Judicial
Court has held that the wetlands legislation is not
pre-emptive of local authority to issue complementary
regulations on the same matters. See Golden v. Board
of Selectmen of Falmouth, 265 N.E.2d 573 (Mass. 1970).

57/ The Department of Public Works is given this authority
under both the Jones Act and the Hatch Act.

58/ The Jones Act provides that applications for coastal
permits are to be made to the Director of Marine
Fisheries, who is responsible for measures necessary
to protect shellfish and marine fisheries, but the
Director is under the immediate supervision of the

452 -329 0 - 72 - 16

- 232 -

Commissioner of Natural Resources and the Commissioner
has created a single administrative section which is
responsible for all wetlands alteration permits. The
Director advises this section as to conditions neces-
sary in permits for the protection of shellfish and
marine fisheries.

59/ Interview with Alden E. Cousins, March 30, 1971.

60/ 131 Mass. Gen. Laws Ann. �40.

61/ See, e.g., Massachusetts Department of Natural Re-
sources, Permit under G.L. C.131 �40, File No. P-988,
issued to William F. D'Annolfo, requiring the builder
to obtain Departmental approval at various stages of
the work. This step-by-step supervision of the project
is the only effective means of regulating a large de-
velopment.

62/ Interview with Alden E. Cousins and George R. Sprague,
March 30, 1971. For coastal wetlands a marine biol-b-
gist will visit the site. id.

63/ Interview with George R. Sprague, May 3, 1971. No
authority to deny permits is provided in either the
Jones Act or the Hatch Act. Where protective orders
are issued, the Inland and Coastal Acts specifically
provide for eminent domain powers to be exercised by
the Department of Natural Resources.

64/ 131 Mass. Gen. Laws Ann. �40.

65/ See, e.g., Transcript of Public Hearing on Application
of D & B Homebuilders, Town of Chelmsford, July 16,
1970.

66/ Interview with Benjamin Nason, March 30, 1971.

67/ 131 Mass. Gen. Laws Ann. �40A.

68/ Ibid.

69/ Interview with Benjamin Nason, March 30, 1971.

70/ Interview with George R. Sprague, September 7, 1971.

71/ Letter from Massachusetts Department of Natural Re-
sources to Christopher E. McGahan, supra note 28.

- 233 -

72/ Massachusetts Department of Natural Resources, Order
under General Laws, Chapter 131, Section 40A, No. 444-
71-1, for the Town of Wellesley.

73/ Interview with Benjamin Nason, March 30, 1971.

74/ Telephone conversation with George R. Sprague, August
16, 1971.

75/ Letter from Massachusetts Department of Natural Re-
sources to Christopher E. McGahan, supra note 28.

76/ Id.'

77/ Interview with George R. Sprague, August 9, 1971.

78/ Interview with George R. Sprague, May 3, 1971.

79/ Interview with Benjamin Nason, March 30, 1971.

80/ Ibid.

81/ Interview with Alden E. Cousins, March 30, 1971.

82/ Interview with Michael Hickey, August 6, 1971.

83/ During fiscal 1971, there were 122 complaints under
the Jones Act and 291 under the Hatch Act. Many of
them turned out to be without substantial basis, but
these figures reflect a considerable degree of public
awareness of wetlands protection programs and willing-
ness to aid in enforcements. Interview with Alden E.
Cousins, August 9, 1971.

84/ Interview with George R. Sprague, August 9, 1971.

85/ In fiscal 1971 there were 113 Jones Act applications,
307 under the Hatch Act, and a total of 47 under both
acts from utilities and municipalities. Interview with
Alden E. Cousins, August 9, 1971.

86/ Ibid.

87/ Interviews with Alden E. Cousins, March 30, 1971, and
George R. Sprague, August 9, 1971. Although the permit
statutes do not require that conservation restrictions
in permits be recorded against the affected land, the
Department has by administrative practice required, as
a condition attached to permits, that developers record
wetlands permits against their land.

- 234 -

88/ Interviews with Morris J. McClintock, March 29, 1971,
and Benjamin Nason, March 30, 1971.

89/ Interview with Morris J. McClintock, March 29, 1971.

90/ A bill providing for a $10 million appropriation for
thepurchase of inland wetlands has been introduced
in the Massachusetts Senate at the request of the
Massachusetts Forests and Park Association. Senate
Bill No. 780, 1971. Interview with Benjamin Nason,
March 30, 1971.

- 235 -

WISCONSIN SHORELAND PROTECTION PROGRAM

Wisconsin has long been noted for the water-oriented
recreation associated with its more than 8,800 ponds and lakes
and 1,500 streams and rivers. 1/ The construction of accept-
able roads to northern Wisconsin in the 1920's and 1930's led
to accelerated development of the state's recreational waters.
Solid strips of shoreline development became prevalent as
natural scenery and access to water made the shorelands a
prime attraction for cabins and resorts.

As development increased,.misuse and overuse of
septic tank waste disposal systems caused substantial water.
pollution problems. Improper construction and development
on low-lying or steep-sloped land resulted in pollution of
wells as well as surface waters. Grading and filling during
construction of buildings and roads caused erosion and sil-
tation.

The scenic beauty of the lakes and rivers, and
their value as wildlife reserves, were being threatened.
Commercial development in the form of taverns, souvenir shops
and grocery stores displaced shore cover and wildlife habitats
and contributed to the deterioration of the scenic qualities
of the waterways. 2/

A committee on water pollution was created in 1929
to coordinate a statewide anti-pollution program for water
resources, but it was not for another 30 years that pressures
commenced to build for a stronger state water management pro-
gram. 3/ Then, during the early 1960's, a state agency car-
ried out a "statewide inventory of values in the rural land-
scape." Natural features such as wildlife categories, unique
vegetation and unusual geologic formations, and man-made
attractions such as museums, hunting preserves, ski trails
and reservoirs were plotted on maps. These maps demonstrated
graphically that a majority of these values appeared on or
near shorelands. The University Extension then prepared two
movies on flooding and the plight of shorelands in Wisconsin,
which were shown throughout the state. Much of the grass-
roots support which developed for the shorelands protection
legislation has been credited to those public showings, 4/
and the water Resources Act, of which the shoreland protec-
tion measures are a part, embodied every provision for which
its sponsors had hoped. 5/

236

The Water Resources Act of 1966

Wisconsin's shoreland protection programs were
enacted as part of the Water Resources Act of 1966, which
set up a broad pollution abatement and prevention program
that reorganized and strengthened the state's regulatory,
planning and coordinating functions in the area of water
resources.

The Water Resources Act treats shorelands as a
special management unit to minimize water pollution and to
preserve wildlife and the natural beauty which make the
waters and shorelands recreationally attractive. The Act
authorizes and requires counties to enact regulations for mi
the protection of all shorelands in unincorporated areas
in order to ". . . further the maintenance of safe and
healthful conditions; prevent and control water pollution;
protect spawning grounds, fish and aquatic life; control
building sites, placement of structure and land uses and
reserve shore cover and natural beauty." 6/ In the event
counties fail to adopt effective shoreland protection regu-
lations the State Department of Natural Resources is au-
thorized to impose such regulations.

More specifically, Section 144.26 declares that it
is in the public interest to make studies, establish policies,
make plans and authorize municipal shoreland zoning.regula-
tions, in order to give effect to the anti-pollution and
preservation purposes enumerated earlier. Accordingly,
counties are empowered to enact separate zoning ordinances
affecting all unincorporated land in their jurisdiction
within 1,000 feet of a lake, pond or flowage and 300 feet
of a navigable river or stream, or the landward side of the
flood plain, whichever distance is greater. 7/

The responsibility for administering the Act was
placed with the Division of Resource Development, now the
Division of Environmental Protection of the Department of
Natural Resources. The Bureau of Water and Shoreland
Management, and yet more particularly, the Flood Plain and
Shoreland Management Section of that Bureau, is responsible
for the direct administration of the shoreland management
program. 8/

237 -

Department 0
r es
Natural Resou
@
Division of
nvironmenta
Protection

W
F_
Bureau of Bureau of Bureau of Bureau of
Water Supply and Standards and Water and Air @ollution Control
I llution ControJ Water Surveys Fh,,eland Manageme land Solid Waste Disposal

Water Resources Water Regulatio Flood Plain rivate Water
t and Shoreland
Flann n! Section I Lnagement Sectiol ISupply Sectionj

The Act provides,that administration of these
shoreland zoning ordinances is to accord with normal zoning
ordinance procedures for counties. -9/ The ordinances are
to "meet reasonable minimum standaris" for shoreland pro-
tection. 10/ The Department is to prepare "general recom-
mended st@i_ndards and criteria" giving particular attention
to:

"Safe and healthful conditions for the
enjoyment of aquatic recreation; the
demands of water traffic, boating, and
water sports; the capability of the
water resource; requirements necessary
to assure proper operation of septic
tank disposal fields near navigable
waters; building setbacks from the
water; preservation of shore growth
and cover; conservancy uses for low
lying lands; shoreland layout for
residential and commercial develop-
ment; suggested regulations and sug-
gestions for the effective administra-
tion and enforcement of such regula-
tions." ll/

238

t eam
'USE DISTRICTS KEY

conservancy
\1000 feet District
Lake Aq Recreational/resi-
VIA dential District

General Purpose
ofI LEE District

Boundary of special
flood plain
------ shoreland jurisdic-
300 feet ri tion
ream
I CIZ-F@_1

Shoreland zoning, with model district classifications

To ensure that counties adopt effective zoning of
the shoreland corridors the Act gives the Department author-'
ity to adopt a shoreland zoning ordinance for any recalci-
trant county: 12/

"If any county does not adopt an ordi-
nance by January 1, 1968, or if the de-
partment of natural resources, after
notice and hearing, determines that a
county has adopted an ordinance which
fails to meet reasonable minimum stand-
ards in accomplishing the shoreland
protection objectives of S. 144.26(l),
[cited supra the department of natural
resources shall adopt such an ordinance."

Flood Plain zoning

In addition to requiring county shoreland zoning
ordinances under �59.971, the Water Resources Act provides
in �87.30'that flood plain zoning ordinances be enacted by

- 239 -

every county, city, and village in the state. 13/ The
statute parallels �59.971 in that it establishes a Janu-
ary 1, 1968 deadline for local action and provides for
promulgation by the state of an ordinance for any local
government which fails to enact one.

However, the orientation of the flood plain zoning
statute differs considerably from that of the shoreland zon-
ing statutes and the state Model ordinance. As earlier
discussion indicates, the shoreland protection program is
a rather comprehensive effort to preserve the quality of
navigable waters and adjoining land. Included in the range
of objectives are the control of water pollution, protection
of aquatic life, and preservation of shore cover and natural
beauty. In contrast, the flood plain zoning statute refers
only to minimizing flood damage. Significantly, �87.30 is
not mentioned in �144.26 authorizing the Department of Na-
tural Resources to develop comprehensive regulations imple-
.menting the protection of navigable waters.

Thus the flood plain zoning program, although it
is administered in conjunction with shoreland zoning, 14/
is a distinct effort with a much narrower scope. The flood
plain zoning statute has the advantage of applying to cities
and villages; but apparently no serious effort has been made
to expand its scope and subject cities and villages to the
type of regulation and shoreland zoning imposes on unincor-
porated areas. The focal point of the flood plain zoning
that has been done has been the minimizing of flood damage; 15/
and for technical reasons discussed later, many local govern-
ments have been unable to enact any flood plain ordinance at
all.

Departmental Regulations

In accordance with its legislative mandate to pro-
vide "recommended standards and criteria" for shoreland pro-
tection, the Division of Environmental Protection has pub-
lished "shoreland regulation standards and criteria" to guide
the formulation of such ordinances. These regulations:

1. Require the establishment of "appropriate
districts" to protect shoreland areas:
conservancyl recreational-residential, and
general purpose districts.

2. Require the establishment of subdivision
regulations which must prohibit any subdi-
vision that:

240

(a) Is likely to result in hazard to the
health, safety and welfare of future
residents,;

(b) Fails to maintain proper relation to
adjoining areas;

(d) Does not provide for adequate storm
drainage facilities; and

(e) Violates any state law or administra-
tive code provision.

3. Require establishment of land use regulations
which:

(a) Set minimum lot sizes to protect the
public against danger to health from
excessive pollution hazard;

(b) Govern building location in relation
to health and beauty preservation;

(d) Govern filling, grading, lagooning
and dredging.

4. Require the establishment of sanitary
regulations for sewage disposal and
water supply systems.

5. Require adoption of certain administra-
tion and enforcement regulations providing
at least for:

(a) An administrator;

(b) A permit system;

(d) A board of review. L6J

For still further guidance, the Flood Plain and
Shoreland Management Section of the Division's Bureau of

241

Water and Shoreland Management has drafted a Model Shoreland
Protection Ordinance based on the above standards and cri-
teria. 17/ The Model Ordinance is essentially a resource-
orientea-zoning ordinance, complete with districts, parking
and loading provisions, exception procedures, and lot size
controls. It is to supersede all county shoreland zoning
accomplished by standard county zoning enabling legislation
with the exception of those portions which are more restrictive
than its provisions.

Under the Model ordinance provisions controlling
water supply, private wells are permitted only when no public
system is "available." Private wells between private sewage
disposal facilities and a watercourse are discouraged--especially
on a slope downward toward such watercourse. 18/
The Waste Disposal provisions make it illegal to
discard rubbish into navigal@le streams, or to discharge
liquid wastes into any surface waters "which would consti-
tute a nuisance." Both industrial and solid waste disposal
are prohibited without permission from the Division. 19/
All plumbing fixtures are required to,be connected to a pub-
lic sanitary sewer system "where available." In the absence
of such a system, private sewage disposal facilities are
permitted, including privies, but only in accordance with
certain minimum standards. Any alteration of existing pri-
vate sewage disposal systems is also subject to regulation.
Specific regulations govern location and construction of
facilities such as privies, septic tanks, and soil absorp-
tion fields. Even the method for carrying out tests to
determine soil type and characteristics is set out in con-
siderable detail. 20/

Relatively standard zoning provisions deal with
minimum lot size and building area dimensions for lots served
and not served by public sanitary sewer systems, substandard
lots of record, cluster developments, and highway and water
setbacks. 21/ For example, all buildings and structures are
to be set back at least 75 feet from the waterline and elevated
at least two feet above the experienced high water elevation,
and soil absorption fields are-to be set back at least 50 feet.

Tree cutting is limited under the Model ordinance
to a 35-foot strip paralleling the shoreline. Clear cutting
of more than 30% of a strip of timber is prohibited, and of
the remaining 70%, cutting must leave sufficient cover to
screen cars, dwellings, and accessory structures as seen
from the water. Shrubbery must be preserved "as far as
practicable," and where removed, must be replaced with other
vegetation that is found to be "equally effective in re-
tarding runoff, preventing erosion ana preserving natural
beauty" by the local Zoning Board of Adjustment. 22/

242 -

Filling, grading, lagooning or dredging which would
result in substantial detriment to navigable waters by reason
of erosion, sedimentation, or impairment of fish and aquatic
life is prohibited. In any event,'a special exception permit
is required regardless of environmental impact. 23/

The Model ordinance creates three principal shoreland
zoning districts: Conservancy, Recreational-Residential, and
General Purpose. The conservancy district is designed primarily
to protect shorelands designated as swamps or marshes, which are
described as "seldom suitable for building," and lists a number
of permitted uses (forestry, transmission lines, hunting, fish-
ing, riding, golf courses) and special exception uses (dams, 41
farming, piers and docks). Residential, commercial or indus-
trial development is not permitted. 24/

The residential-recreational classification is for
those shorelands along specified waterways which are not
within the conservancy district and which are "particularly
suited for residential and recreational uses." The idea is
to permit all uses allowed in conservancy districts, together
with seasonal or "year-round" single-family dwellings, signs,
and, by means of special exception permits, hotels, motels,
restaurants, taverns, clubs, camps and campgrounds, souvenir
shops, marinas, bait shops, sporting goods stores, mobile
home parks, and travel trailer parks. 25/

The general purpose district is a catchall which
covers all shorelands not included in conservancy or resi-
dential-recreational districts. The ordinance states that
these other shoreland areas are suited to a wide variety of
uses which, until such time as amendments to the Ordinance
or more detailed planning is undertaken, should be permitted.
As a result, industrial and solid waste disposal facilities
are permitted by means of a special exception, and nearly
everything else is permitted as of right so long as certain
structures are at least 100 feet from navigable waters. 26/
The Model ordinance contains traditional zoning
ordinance provisions governing off-street parking and loading,
planned developments, and lot size requirements. 27/ The pro-
visions regulating subdivisions prohibit the subdividing of
land which is "held unsuitable" by the county planning agency
"for reason of flooding, inadequate drainage, soil and rock
formations with severe limitations for development, severe
erosion potential, unfavorable topography, inadequate water
supply or sewage disposal capabilities or any other feature
likely to be harmful to the health, safety or welfare of the
future residents of the proposed subdivision or of the commu-
nity." 28/ Section 17.75 controls minimum lot areas for sub-
division not served by public sewers-

THE FOLLOWING ARE MINIMUM LOT AREAS, WIDTHS, AND AREAS FREE OF LIMITING CONDITIONS FOR SUBDIVISIONS NOT SERVED
BY PUBLIC SEWERS:

Minutes Required Minimum Minimum Minimum Minimum Minimum Minimum Ydnimum
For Water To Lot Lot Area Area Area Area Area With
Fall One Inch Area Width Two Feet Two Feet Three Feet Six Feet Slopes
Shallow Deep Above Above Above Above Less Than
Absorp- Absorp- Floods High- Ground Bedrock 12%
Lot tion tion Ground Water
Classes Svstem System Water

1 Under 2 20,000 100 9,000 10,000 8,000 8,000 5,000

2 2-15 2-10 20,000 100 12,960 14,440 11,520 11,520 7,200

3 16-60 11-30 20,000 100 16,200 .18,000 14,400 14,400 9,000

4 31-60 36,000 100 32,400 36.000___ _28,800 18,800 18,000

For percolation rates slower than one (1) inch in sixty (60) minutes, soil absorption fields shall be prohibited. LO
Subdivisions may be allowed only where the provisions of Section 17.75(l)(c) of this Ordinance are met.

IN ADDITION, PREPLANNED SITES SHALL BE NECESSARY W11ERE THE MINIMUM LOT AREA IS SUBJECT
TO LIMITING CONDITIONS WITHIN THE FOLLOWING RA.NGES:*

Percolation Area 3 Feet Above Area 6 Feet Area With Slope
Class High Ground Water Above Bedrock Less 71-an 12%

1 ------------------------------- - -- - ----- 8,COO-15.000 8,000-10,000 8,000-10,000
2 -------------- - ------------------- - - --- llp520-15,000 11,520-14,400 7,2CO-14,400
3 ---------- - ---------------------- - ------ 14,400-18,000 14,400-18,000 9,000-18,000
4 ------------------------------------------ 28,800-36,000 -28,800-36,000 18,000-36,000

*If a lot is subject to limiting conditions within these ranges, a preplanned waste disposal site Is necessary to
make sure a lot owner will have room to install a soil absorption system.

244

The Model ordinance provides for a zoning admini-
strator with authority to issue permits, make inspections,
and keep records in relation to the ordinance. Procedures
for obtaining zoning and sanitary permits are established
and standards and conditions for obtaining special excep-
tions are set out. For the latter purpose, a Board of Ad-
justment is created to hear exception petitions and applica-
tions for variation from the terms of the ordinance in cases
of "unnecessary hardship." 2-9/

Actions by the Counties

Because the Model Shoreland Protection ordinance
prepared by the Department of Natural Resources was not
available until December, 1967, it was difficult for many
counties to meet the statutory deadline of January 1, 1968. 30/
However, the Department has been extremely flexible in per-
mitting additional time, so that no serious hardships were
produced by the time limit in the statute.

on January 2, 1968, the Administrator of the Divi-
sion of Resource Development requested a status report from
each county. 31/ The Department then compared each report
and ordinance provision with the minimum statutory standards
for shoreland protection, as interpreted by the Department
and set out in its list of standards and criteria discussed
above. 32/ Counties were then divided into three categories:
complying, partially-complying, and non-complying. The middle
category was created for those counties which were in the
middle of comprehensive land use planning programs and gave
formal assurance that shoreland protection regulations would
eventually be integrated into the programs. Into the latter
category fell all other counties without regulations, or with
insufficient regulations. These counties were required to
state their reasons for non-compliance, after which the Ad-
ministrator of the Division of Environmental Protection was
either to order such counties to proceed to formulate such
regulations or direct the Division staff to prepare them
with all costs of preparation to be borne by the non-complying
county. 13/

By March of 1971 the Division listed only Kenosha
and Racine Counties as remaining in the non-complying cate-
gory. 34/ The rest had reportedly been prodded into full or
partiaf-compliance by means of hearings and compliance orders. 35/
Kenosha County has since enacted a comprehensive zoning ordi-
nance effective upon publication in July, 1971 which includes
shoreland provisions that meet state requirement. 36/ Racine

- 245

County has adopted shoreland protection regulations but the
Division apparently does not feel they are completely con-
@sistent with their requirements. 37/

Prior to 1966 there were probably no more than four
counties in Wisconsin with zoning administrators having any
natural resource orientation; now, as a result of the statu-
tory standards and Model ordinance provisions drafted by the
Division, almost all counties have such administrators. 38/
The program has clearly established a new administrative
.structure through which to address the problems of water
resources throughout the state.

State-Local Relations

Although the Department has authority to compel
the adoption of shoreland protection ordinances, it has no
authority to enforce them. The matter of day-to-day admini-
stration is strictly for the counties, there being no statu-
tory authorization for enforcement in the enabling.Water Re-
sources Act. 39/ There is some feeling in the Department
that the Act could profitably be amended to require at least
Departmental approval of variations and amendments to the
ordinance. Presently the Department is entitled only to
notice of all variation and zoning change requests. 40/
Since the county shoreland zoning ordinances were adopted
under the pressure of state statute, and the substance of
many of the ordinances follows quite closely the Model Ordi-
nance prepared by the Department of Natural Resources, many
counties are in effect administering a body of state regula-
tion. The slavish adoption of the model shoreland protec-
tion ordinance in many counties, however, is viewed by the
Department as an indication of local unpreparedness; they
suspect such a wholesale adoption may result in provisions
which do not fit the particular problems of the adopting
county. ill/
Z?_
Some critics of the program charge that the state
has abdicated some of its responsibility. Rather than incur
the expense of administering the regulations through a state
agency, the state has transferred that front-line responsi-
bility to the counties. While this approach may make emi-
nently good sense from the point of view of overall effi-
ciency, some county governments do resent having thrust
upon them the task of enforcing part of the state administra-
tion code. 42/

- 246 -

This type of reluctance on the part of the counties
can have a direct effect on the enforcement of the program
because the county zoning' administrator may find himself
operating a local political environment that is not parti-
cularly receptive to the state requirements. His position
can be an uncomfortable one as a county employee enforcing
state regulations that do not have enthusiastic support
from the county government. Since the county administrator
serves at the pleasure of the County Board, not the Depart-
ment of Natural Resources, there may be substantial incentive
not to press too hard for full enforcement.

A degree of routine state supervision of county
administration is built into the present arrangement. Under
a state statute, copies of each septic tank permit application
must be submitted to the state Department of Health and So-
cial Services, 43/ but it is not clear how closely the Flood
Plain and Shoreland section of the Department of Natural Re-
sources monitors these records. In many counties copies of
all variances or special exception permits granted by the
county Board of Adjustment and affecting the shoreland are
sent to the main office of the Division of Environmental
Protection. This referral is not required by statute, but
it is contained in the model shoreland ordinance 44/ and has
been adopted by several counties. 45/ While the state office
has no direct power over such variances or special exceptions,
these records should aid in its evaluation of county enforce-
ment of the ordinance; and this supervision may itself deter
counties from too freely granting variances or special per-
mits.

overall, there sb.ems to be good communication
between the Department of Natural Resources and county ad-
ministrators, and some administrators are quite willing to
consult with the state office in handling a difficult local
problem. 16/ State officials recognize the need to provide
protection and.support for the administrator and to direct
their attention to the ultimate decision-making bodies in
the counties. They hope to obtain state funds to provide
grants-in-aid to support the local administration of the
shoreland program. 47/

obtaining adequate enforcement of the shoreland
ordinance will probably require supervision of both the ad-
ministrators themselves and the political structures in which
they work. This is probably the greatest single weakness of
the program: there is presently no effective way for the
state agency to ensure adequate enforcement of the ordinance.

.247

Questions of Jurisdiction

one weakness in county jurisdiction under the Act
is that protected shoreland includes only land adjoining
navigable streams. Polluting matter such as nutrients and
agricultural runoff which are washed into smaller, non-
navigable streams- and then into lakes and navigable streams,
are thus not subject to regulation. 48/

An even more serious limitation in the program is
that the Water Resources Act specifically grants counties
authority to zone their shoreland corridors only in-their
unincorporated areas. 49/ The cities located on lakes and
streams are thus wholly outside the scope of the program.

Some basic concern has also been expressed about
using the county as the vehicle for regulating shorelands.
Not only does the city/village exemption reduce the area
covered by the program, but in Wisconsin the county is a
relatively weak governmental entity compared with villages,
cities, and townships. The county has no authority, for
example, to operate a sewage treatment system, something
which the Department feels it may eventually want to promote
as part of a continuing water resources preservation pro-
gram. 5

Actual operation of shoreland zoning ordinances
has also turned up gaps and complexities in the scope of the
jurisdiction. one area of difficulty has been the construc-
tion of man-made lakes. In order to obtain additional water-
front property, developers sometimes dredge their own artifi-
cial lakes. They often do so in such a way that the lakes
are unable to support a full, self-sustaining range of aquatic
life, and the lakes can rapidly deteriorate into scars on the
landscape. 51/ While the shoreland zoning provisions apply
to the newly created waterfront property, the actual dredging
of lakes is sometimes not directly subject to any require-
ments, so that the damage is often done before any public
authority has jurisdiction. In order to deal with this
situation, more specific regulation of the creation of man-
made lakes is probably needed. Several county administra-
tors who have observed such problems recommend that addi-
tional regulation be incorporated into the shoreland zoning
plan. 52/

A more fundamental practical shortcoming of the
present program is the technical difficulty of defining the
jurisdictional flood plain. The statutory definition states

452 -32 9 0 - 72 - 17

- 248

that county shoreland jurisdiction extends to all land within
300 feet of a river or stream "or to the landward side of
the flood plain, whichever distance is greater." 53/ Be-
cause a major engineering study is required in most areas
to determine the geographic outline of the flood plain, 54/
and such a study is beyond the financial capacity of local
governments, some county.zoning administrators apply the
300-foot provision as the definitive requirement. This
practice undermines one of the purposes behind the prograML
because potentially it leaves unregulated certain land
that-is subject to flood dangers and contains important
environmental features.

Because of the technical difficulties involved,
many counties have failed to enact flood plain ordinances
required by �87.30 of the Water Resources Act, 55/ but no
enforcement action by the Department of Natural Resources
against particular counties is expected until the state makes
sufficient progress in its own studies to determine flood
plain boundaries. The Department hopes to obtain legisla-
tive approval of plans to spend $50,000 per year for flood
plain delineation studies; but, in keeping with the emphasis
on flood plain zoning as a measure to reduce flood damage,
first priority for flood plain determination will be given
to incorporated areas where obstructions are mo 'st serious. 56/
it will be at least several years, therefore, before the
flood plain is mapped for the less heavily developed areas
of the state. Until these surveys are completed, jurisdic-
tion at the county level will probably vary from flat appli-
cation of the 300-foot rule to various attempts to use
rather imprecise mappings of past floods. Even the 1,000-
foot corridor around lakes is not always readily definable
because the "normal high-water elevation" varies from year
to year, so that there will always be an element of uncer-
tainty in drawing the boundaries of shoreland jurisdiction. 57/

Public Awareness

Most county zoning administrators operate one-man
offices but are responsible for the enforcement of the full
range of county zoning. This fact alone indicates the diffi-
culty which the local administrator may encounter in per-
sonally policing the shoreland areas of the county. To a
large extent he must, in practice, rely on private complaints
to notify him of some violations. So public awareness is an
important part of enforcement.

- 249

Despite the relative newness of the program in
many counties, the major features of the shoreland regula-
tions appear to be fairly well known at the local level.
Public hearings held to examine the county ordinances before
enactment were apparently well attended in most counties.
Recognizing that general public awareness and acceptance of
the restrictions imposed by the ordinance can be an important
part of enforcement, a number of zoning administrators have
made special efforts to inform and educate the public. Pamph-
lets prepared by the Department of Natural Resources to
familiarize property owners and potential buyers with the
state requirements are-available from many county zoning ad-
ministrators. In an attempt to notify local citizens, some
administrators have prepared additional materials and dis-
tributed them to real estate offices and savings and loan
institutions for public distribution. 58/

Another important aspect of the enforcement of the
ordinances is the incentive for contractors to be familiar
with and observe the regulations. With respect to the sani-
tation provisions, for example, the licensed plumber who
installs a septic tank or other private sewage disposal
system can find himself in trouble if he fails to observe
the zoning regulations. Creating this kind of special con-
cern in a small group has made it somewhat easier for the
county administrator to supervise the introduction of the
new requirements. 59/

Perhaps even more important than public awareness
of special shoreland zoning regulations is the increasing
public acceptance of such regulation. Particularly in areas
where there are many lakes and streams, people are becoming
aware of the need for protective action and are increasingly
S cooperative in carrying out the shoreland zoning program. 60/
This support represents a major shift in public opinion, for
as recently as three or four years ago public sentiment in
many areas was strongly oppos.ed to the shoreland zoning pro-
gram. 61/ Growing general concern over ecology and the en-
vironment in recent years has apparently facilitated the
acceptance of specific programs of this kind.

The shoreland protection program has not generated
any widespread organized opposition among local interest
groups. Although there was some early outcry among developers
about the setback requirements, 62/ that feeling does not seem
to be widely Ashared. Quite the contrary, in some areas, the
professional developer has accepted shoreland controls more
readily than many individual property holders. 63/ In at

250

least one area, experience has indicated that large lots
sell better than substandard lots. 64/ The volume of new
development since enactment of shoreland zoning varies con-
siderably from county to county, but the quality of develop-
ment has improved noticeably in at least one county where
there have been several subdivisions under the new regula-
tions. 65/

Private conservation groups have actively supported
shoreland protection for several years and have welcomed 4_1
the enactment of this program. However, they regard the
program as being in such an early stage of administrative
development that no official policy position is possible yet.
At present they have adopted a wait-and-see attitude and will
follow the progress of the enforcement of the program. 66/

Perhaps the strongest opposition to the program
which can be associated with a particular group has been
that of farmers. Many farmers believe that decisions di-
rectly affecting them were made without consulting them, and
they resent that form of regulation. To some extent, this
response may have been produced by the manner in which the
program was presented. 67/ Where state requirements are to
be implemented by county action, county officials may tend
to simplify their own function and shift responsibility for
their actions by emphasizing the imposition of control from
the state level. When farmers perceive the regulations in
this way they are likely to resist the action regardless of
the substance of the program. If state administrators can
work with county officials to dispel that impression and to
draw local interests into the process of establishing stand-
ards for the particular county, the entire program may ob-
tain better public acceptance.. A spokesman for a large
farmer organization considers it quite possible that farmers,
if approached properly, would cooperate in imposing upon
themselves restrictions on the use of livestock, fertilizers,
and insecticides in shoreland areas. 68/

Some critics of the program charge that the legis-
lature evaded its responsibility by enacting relatively vague
statutes and turning over to an administrative agency the
authority to define precise guidelines. These critics main-
tain, if the legislature intended to impose precise require-
ments, it should have enacted a more comprehensive statute
setting forth the standards. These objections are often
raised by local people who are opposed to the substance of
the regulations, and the position sometimes reflects an ex-
pectation that the legislature would not actually enact

251 -

specific standards in a statute. Even some supporters of
the program believe that it would receive more ready ac-
ceptance at the county level if it had the full-force of
the legislature behind its specific requirements. 69/ This
objection seems rather tenuous, however, because the legis-
lature, in enacting ��59.971 and 144.26 has taken a clear
position on the issues involved in the program and it is
not unusual for the detailed implementation of a legislative
program to be carried out by an administrative agency.
overall, the relationship between legislature and'agency
in the shoreland program is probably an appropriate one
for dealing with this type of problem.

Enforcement Through Legal Action

Beyond the problem of informing the public of the
requirements and detecting violations, however, the county
zoning administrator may find it difficult to take legal
action against known violators. In at least one county the
zoning committee of the county Board of Supervisors has re-
fused to recommend prosecution of some cases, and that has
prevented any enforcement action. 70/ Moreover, enforcement
proceedings must be brought by the local District Attorney
or the County'Counsel, and they may be reluctant to take
action. In many counties the County Counsel is a part-time
employee with a wide range of responsibilities. Because he
assigns a rather low priority to zoning enforcement, little
legal action is taken. In one such county the zoning ad-
ministrator has found approximately 20 gross violations
of the ordinance but he has been unable to procure court
action. 71/ As a result of these political and economic
considerations, even a conscientious zoning administrator
may be unable to enforce the shoreland regulations.

To some extent the reluctance to bring enforce-
ment actions probably stems from doubt as to the constitu-
tional validity of certain shoreland regulations. The con-
cept of regulating for preservation as well as pollution
control raises the question whether such regulation may be
a taking for which compensation must be paid. Some of the
farm groups' objections have been directed at the specific
limitations upon their use of certain property, particularly
in the conservancy districts established under shoreland
zoning. 72/ The claim has been made that such a measure
is a taking of private property and that compensation must
be paid. This is especially so in the conservancy district
where the regulations prohibiting development fall, as they
often must, on land with potential for recreational develop-

252

ment. 23/ However, the Department intends to leave the
constitutional question for determination by the courts,
and it is operating on the assumption that present restric-
tions are constitutionally permissible. 74/

Adequacy of Environmental Protection

With respect to the Model Ordinance itself, there
is some question in the Department whether its provisions
are sufficiently sophisticated to deal with pollution and
preservation of water resources. Generalization about the
pollution contributions of various shoreland uses have proven
to be of little value, and insufficient data is available
from which to formulate specific regulations for specific
areas. 25/ For example, in the three-district scheme sug-
gested by the Model Ordinance, the conservancy district
regulations attempt broad control over land use on or near
wetlands, 76/ but the regulations may not be sufficiently
comprehensive to accomplish the intended preservation.
General farming, even as a special exception use, may be
too intense for the delicate ecology of a Sphagnum bog or
other wetland entity. In other words, the regulatory scheme
embodied in the shoreland ordinances may not achieve all of
the intended results even if administered effectively.

only continued scientific research and updating
of the specific provisions of the shoreland zoning ordi-
nances will insure that the program will operate to further
the policies underlying it,.and questions have already been
raised regarding the approach embodied in the present pro-
gram. The basic objection expressed by the Southeastern
Wisconsin Regional Planning Commission (SEWRPC) is that the
shoreland and flood plain restrictions in the state program
are ill-suited to relatively small streams in a heavily
urbanizing region and provide inadequate protection for the
ecological resources of the shorelands. 77/ Present state
shoreland and flood plain regulations do not prevent all
development in the flood plain. Shoreland ordinances re-
strict the form and intensity of development, but substan-
tial urbanization can still occur7 and the principal focus
of flood plain zoning for cities and villages is still the
prevention of serious flood damage. 2-8/

one of the Commission's major criticisms of the
existing approach is that it fails to take into account
the impact urbanization and changing land use can have upon
the course of a relatively small stream. Along the major

253

rivers of the United States normal human activities along
the shoreline are not likely to affect substantially the
flow of water in the stream bed; but filling and building
along a large portion of a small river can seriously alter
the water elevation and the rate of flow, particularly
under flood conditions. 79/ S ince most of southeastern
Wisconsin is urbanizing rapidly, even the limited objective
of controlling flood damage may require tighter restric-
tions on all forms of development in the flood plain.

Because state standards still permit a good deal
of development to occur within the flood plain, the Com-
mission fears they will not adequately protect the natural
resources which are concentrated in those areas. 80/ In-
cluded in those resources are ground water recharge areas,
woodlands, wetlands, and wildlife habitat. Even the regu-
la'%t'ed development permitted under state standards will destroy
many orf these resources, and the SEWRPC recommends that the
entire 'flood plain be kept in its natural state for recrea-
tional use',- with agricultural uses permitted where good soil
and water conservation techniques will preserve the basic
character of the environment. 81/

The Commission recognizes that its approach would
probably require public purchase of some urban flood plain
land because the expectations for use would be so sharply
altered, and with the advice of the Commission some counties
have actually made substantial purchases of shoreland. This
experience suggests that under proper direction local govern-
ments may be willing individually to take important action
toward preserving shoreland resources. However, the Com-
mission emphasizes that effective management of watershed
ry ources can probably best be carried out on a regional
b_-sis and that some means of coordinating the actions of
i.@dividual localities is essential. 82/

Areawide Coordination

Consistent with its concern for the weakness of
county governments, the Department has given some considera-
tion to the use of regional authorities for implementation
of water quality standards and waste disposal programs. A
river basin authority is viewed as a possible alternative.
The Department does not contemplate the use of regional
planning commissions for such implementation since such
commissions prefer to maintain their-effectiveness as
planning agencies, which they feel would be difficult if
they became embroiled in controversies concerning program
implementation. 83/

254

one way of achieving areawide coordination would
be for the state to take a more direct role in the adminl'-
stration of the shoreland-flood plain zoning program, and
it has been suggested by some planners that the program
would be more effective if enforcement were in the hands
of state officers. 84/ However, the expense of such a pro-
gram would be almost prohibitive, and it would run counter
to well-established patterns of state-county relations. 85/
A matching grant program under which the state would help
finance the program would give the state additional control
over the quality and.conduct of county zoning administrators,
and would also placate some local objections that the state
is evading financial responsibility for the program. The
legislature eliminated a matching grant plan from the ori-
ginal proposal, but another effort might be made to estab-
lish one. 86/

The suggestion has also been made that real--,E@state
tax assessments for conservancy districts be adjusted down-
ward as a form of compensation to the property owners, 87/
but that type of relief is prohibited under the Wisconsin
Constitution. The whole question of compensation"Will prob-
ably be the subject of litigation, and further action by
the Department or the legislature will probably await some
indication of the attitude of the courts. 88/

Conclusion

The approach of the Wisconsin Shoreland Protection
Program is basically that of placing at the county,level
primary responsibility for protection of shoreland resources,_
with overall authority at the state level to compel compli-
ance with minimum statutory standards. The Department of 41
Natural Resources has attempted to give counties every oppor-
tunity to comply with the pertinent statutory provisions
rather than bring a host of compliance actions. The Depart-
ment would rather proceed slowly and depend upon its amicable
relationship with the various county officials responsible
for adoption and implementation of the shoreland regulations. 89,-/

The shoreland protection program represents an
attempt to work out a satisfactory state-local relationship
in land use control. Minimum state standards underlie the
local zoning regulations, preserving local control but as-
suring some measure of uniformity in preservation and anti-
pollution standards throughout Wisconsin. The local response
in adopting shoreland corridor zoning ordinances appears to

255

have been very good, but the city/village exemption is un-
fortunate. Regulation of this kind must be comprehensive
throughout an area to be effective and readily administrable,
and the exemption seriously disrupts the continuity of juris-
diction, 2-0/ especially in view of the fact that industrial
and intensive commercial developments, crucial sources of
pollution, are often found in cities and villages.

Finally, the lack of any compulsory review of
local administrative practices could render the whole regu-
latory scheme ineffective. There is presently no way the
State of Wisconsin can enforce the minimum standards con-
tained in its legislation, and only additional experience
in operation can indicate whether county enforcement prac-
tices are adequate to achieve the goals of the program.

256

FOOTNOTES

l/ Douglas A. Yanggen and Jon A. Kusler, "Natural Resource
Protection Through Shoreland Regulation: Wisconsin,"
LAND ECONOMICS (1968), at p. 73.

2/ Id. at p. 75.

3/ Thomas G. Frangos, "Environmental Protection," Wiscon-
sin Conservation Bulletin, Nov.-Dec. 1968.

4/ Douglas A. Yanggen and Jon A. Kusler, "Natural Resource
Protection Through Shoreland Regulation:@ Wisconsin,"
LAND ECONOMICS (1968), at pp. 74-75; interview with
Donald Wood, August 10, 1970; and interview with Thomas
Lee, March 29, 1971.

5/ Interview with Donald Wood, August 10, 1970.

6/ Wisc. Stat. Ann. �144.26(l). Copies of the pertinent
statutes are available in booklet form. See Wisconsin
Natural Resources Laws 1969-1070, Publication 702-71,
Department of Natural Resources: Madison, 1971.

7/ Wisc. Stat. Ann. �59.971(l).

8/ Thomas G. Frangos, "Environmental Protection," Wiscon-
sin Conservation Bulletin, Nov.-Dec. 1968 Interview
with Thomas G. Frangos on March 29, 1971.

9/ Wisc. Stat. Ann. �59.971(4).

10/ Id. �59.971(6).

ll/ Id. �144.26(6).

12/ Id. �59.971(6).

13/ Wisconsin Natural Resources Laws, �87.30.

14/ Interview with Donald F. Wood and Ted Lauf, August 10,
1970.

15/ Interview with Kurt W. Bauer, Executive Director,
southeastern Wisconsin Regional Planning Commission,
July 2, 1971.

- 257

16/ "Wisconsin's Shoreland Management Program"--Release
of the Department of Natural Resources, Madison,
Wisconsin, at pp. 2-3.

17/ "Wisconsin's Shoreland Protection ordinance," prepared
by the Department of Natural Resources, Division of
Resource Development, Madison, Wisconsin (December,
1967).

18/ Id. �3.0.

19/ Id. �4.0.

20/ Id. �5.0.

21/ Id. ��6.0 and 7.0.

22/ Id. �8.0.

23/ Id. �9.0.

24/ Id. �12.0.

25/ Id. �13.0.

26/ Id. �14.0.

27/ Id. ��15.0 and 16.0.

.@8/ Id. �17.4.

29/ Id. �18.0.

30/ Interview with Leland E. Newman, Executive Director;
and Michael Morgan, Planner, Northwestern Wisconsin
Regional Planning Commission, July 29, 1971.

31/ "Wisconsin's Shoreland Management Program"--Release
of the Department of Natural Resources, Madison, Wis-
consin, at p. 4.

32/ Id.

33/ Id.

34/ Interview with Thomas Lee on March 29, 1971.

35/ Cf. #3A-70-1 directed to Adams County issued October
16, 1970, and requiring the submission of an appro-
priate ordinance by December 15, 1970.

- 258 -

36/ Interview with William Kavanagh, Kenosha County Zoning
Administrator, June 28, 1971.

37/ Interview with Arnold Clement, Racine County Zoning
Administrator, August 26, 1971.

38/ Interview with Thomas G. Frangos, March 29, 1971.

39/ Id.

40/ Id. Interview with Oliver Williams, Assistant Com-
missioner of Natural Resources, August 2, 1971.

ji/ Interview with Donald Wood, August 10, 1970; interview
with Ted Lauf, August 10, 1970.

42/ Interview with Leland Newman and Michael Morgan, July
29, 1971.

j3/ Wisconsin Natural Resources Laws, �144.03.

14/ "Wisconsin's Shoreland Protection ordinance," �18.46.

15/ E.g., Portage county Shoreland Supplementary Zoning
Ordinance; Sauk County Shoreland Protection ordinance.

16/ Interview with John Lewis, Marathon County Zoning
Administrator, June 29, 1971.

47/ Interview with Oliver,Williams, August 2, 1971.

j8/ Jon A. Kusler, "Water Quality Protection," at p. 76.

49/ Wisconsin Natural Resources Laws 1969-1970, Publication
702-71, Department of Natural Resources: Madison, 1971,
�59.971(l).

50/ Interview with Thomas G. Frangos, March 29, 1971.

51/ Interview with John Lewis, June 29, 1971. See J. A.
Kusler, "Artificial Lakes and Land Subdivisions,"
1971 WIS. L. REV. 369.

52/ Interviews with John Lewis, June 29, 1971; Bjarne G.
Petersen, Marquette County Zoning Administrator, June
30, 1971; and Melvin Albers, Sauk County Zoning Ad-
ministrator, July 1, 1971.

53/ Wisconsin Natural Resources Laws, �59.971.

- 259

54/ For purposes of determining the flood plain, the stand-
ard used in the regional flood with a recurrence inter-
val of 100 years.

55/ Interviews with Bjarne G. Petersen, Leland Newman and
Michael Morgan, July 29, 19717 interview with Ted Ander-
son, Polk County Zoning Administrator, July 29, 1971.

56/ Interview with Oliver Williams, August 2, 1971.

57/ Interview with Leland E. Newman and Michael Morgan,
July 29, 1971.

@_8/ Interview with John Lewis, June 29, 1971.

59/ Interview with Melvin Albers, July 1, 19,71.

.@O/ Interview with Ted Anderson, July 29, 1971.

61/ Interview with Leland Newman and Michael Morgan,
July 29, 1971.

62/ Interview with Donald F. Wood and Ted Lauf, August 10,
1970. '

63/ Interview with Bjarne G. Petersen, June 30, 1971.

64/ Interview with Melvin Albers, July 1, 1971.

65/ Interview with John Lewis, June 29, 1971.

66/ Telephone conversations with Richard A. Hemp, Executive
Director, Wisconsin Wildlife Federation, June 23, 1971;
and Frederick M. Baumgartner, President, Citizens
Natural Resources Association of Wisconsin, Inc.,
June 23, 1971.

67/ Interview with William Kasakaitis, Environmental Con-
trol Committee, Wisconsin Farm Bureau Federation,
July 1, 1971.

68/ ibid.

69/ Interview with Leland Newman and Michael Morgan,
July 29, 1971.

70/ Interview with David Rosenfeldt, Wausau County Zoning
Administrator, June 29, 1971.

260 -

71/ Interview with Melvin Albers, July 1, 1971.

72/ interview with William Kasakaitis, July 1, 1971.

73/ Douglas A. Yanggen and ion A. Kusler, "Natural Resource
Protection Through Shoreland Regulation: Wisconsin,"
LAND ECONOMICS (1968), at p. 86; interview with Thomas
G. Frangos, March 29, 1971; interview with Donald Wood,
August 10, 1970; interview with Ted Lauf, August 10,
1970.

74/ Interview with Donald F. Wood and Ted Lauf, August 10,
1970.

75/ ion A. Kusler, "Water Quality Protection for Inland
Lakes in Wisconsin: A,Comprehensive Approach to
Water Pollution," 1970 WIS. L. REV. 35, at pp. 67-8.

76/ "Wisconsin's Shoreland Protection ordinance," prepared
by the Department of Natural Resou-rces, Division of
Resource Development, Madison, Wisconsin (December,
1967), at p. 34.

77/ Interview with -Kurt W. Bauer, July 2, 1971.

78/ Id.; Wisconsin Natural Resources Laws, �87.30.

79/ Interview with Kurt W. Bauer, July 2, 1971.

�0/ Id.

81/ Id.

.q2/ Id.

83/ Interview with Thomas G. Frangos, March 29, 1971.

84/ Interview with Leland Newman and Michael Morgan,
July 29, 1971.

85/ Interview with Oliver Williams, August 2, 1971.

86/ Id.

87/ Id.; interview with Leland Newman and Michael Morgan,
July 29, 1971.

- 261

88/ Interview with Oliver Williams, August 2, 1971.

89/ Interview with Thomas G. Frangos, March 29, 1971;
interview with Donald F. Wood and Ted Lauf, August 10,
1970.

90/ Interview with Leland E. Newman and Michael Morgan,
July 29, 1971.

- 262 -

NEW ENGLAND RIVER BASINS COMMISSION

.The New England River Basins Commission was
created in 1967 by federal executive order, 1/ under the
authority of the federal Water Resources Planning Act, 2/
at the request of the governors of the New England states
and of New York. 3/ It was the fourth "Title II" river
basin commission t@o be created. 4/ The primary function
of all such commissions is to provide coordinated water re-
sources planning for the region in which they are located. 5/
Federal, state, interstate, regional, and local levels of
government participate, as well as private, non-govern-
mental agencies. 6/

The creation of regional coordinating agencies
(river basins commissions) is one element of the concept
embodied in the Water Resources Planning Act of providing
for coordinated nationwide planning for the development
and preservation of water and related land resources. 7/
Efforts in favor of such comprehensive water resources
planning began at the national level at least as early as
the 1951 Report of the Water Resources Policy Commission
appointed by President Truman, and legislation on the subject
was introduced to the Congress in 1959 and in subsequent
sessions until the Water Resources Planning Act was passed
in 1965. 8/

In addition to providing for the creation of river
basins commissions, the Water Resources Planning Act estab-
lishes a cabinet level Water Resources Council whose member-
ship includes the secretaries of the Interior, the Army,
Agriculture, and Health, Education and Welfare, as well as
the Chairman of the Federal Power Commission. The Council
has "the responsibility,for guiding the Nation's planning
effort in the water resources field and keeping the Presi-
dent and the Congress informed on the water need-s of the
Nation." 9/ The Council is responsible for reviewing the
water resources plans of states, and if it approves a state's
plans, may provide grants to the state for up to 50% of the
cost of carrying out the approved program. 10/

Early Efforts Toward Coordination

The origins of the New England Commission precede
by a number of years the 1965 Water Resources Planning Act.
In the early 1950's Congress authorized a study of the hydro-

263 -

electric potential of two New Engla nd river systems (the
Connecticut and the Merrimac), and this study was broadened
by Presidential intervention to include a detailed inventory
of the water and related land use resources of the New
England-New York region. Many federal and state agencies
were involved, working cooperatively through the New England-
New York Interagency Committee. ll/

The study was completed in 1955, and in 1956 a
successor agency was organized by federal and state offi-
cials--the Northeastern Resources Committee. Without staff,
and with very little funds, the Committee sought at first "to
carry forward the promise of the earlier study," and promote
vQ federal-state coordination of water resources plans in the
region. But the Committee found it could not effectively
carry out this task, and in 1958 began promoting the adoption
of a federal-interstate Northeastern Water and Related Land
Resources Compact which would have created an ongoing re-
gional water resources agency. By 1959 the compact had re-
ceived necessary state approvals, but was never ratified by
Congress. 12/

The Northeastern Resources Committee continued to
meet and operate as an informal body, and when the Water
Resources Planning Act was introduced in the federal Congress,
it supported the Act and recommended the creation of a river
basins commission for New England. In a 1965 meeting, the
New England Governor's Conference voted unanimously in
favor of this proposal and New England became the first
region in the nation to request the creation of a river
basins commission. 13/ According to the Commission, many
present members are the same as the,original Northeastern
Resources Committee members. 14/

Structure of the Commission 15/

As the diagram on page 264 shows, the Commission
consists of representatives from 10 federal departments,
state agencies in seven states, six interstate commissions,
and a chairman appointed by the President. 16/ The chairman
is responsible to and paid by the water Resources Council,
while the other representatives report to their parent agen-
cies or states and do not receive compensation from the Com-
mission. The chairman is the full-time staff head of the
Commission, and is also the coordinating officer for federal
members on the Commission. The vice-chairman of the Commission

452- 32 9 0 - 72 - 18

- 26-4 -

organization and Functioning f
New England River Basins Commission

Interstate: State Agencies of: Federal:

New England Inter- Connecticut Department of
state Water Pollution Maine Agriculture
Interstate Sanitation assachusetts Department of the Army
Commission New Hampsh 'ire Department of Commerce
Atlantic States Marine New York Department of Health,
Fisheries Commission Rhode Island Education and Welfare
Connecticut River Ver mont Department of Housing
Valley Flood Control and Urban Development
Commission Department of Interior
Merrimack River Valley Department of Transporta-
Flood Control Com- tion
mission Federal Power Commission
Thames River Valley Atomic Energy Commission
Flood Control Com- Environmental Protection
mission @Agency

Vice-Chairman (Coordinating officer Chairman (Coordinating officer for
for state and interstate members, all federal members, paid by fed-
paid by states, represents state eral Water Resources Council, full-
viewpoint. Some actions by chair- time chief administrator.,)
man require his concurrence.)

Coordinating Committees, task forces Full-time; 8-man staff (Conducts
(Membership selected by chairman with studies and special projects,
concurrence of vice-chairman. Pro- preparation of plans, with coopera-
vide interagency state-federal teams tion of staff from member agencies.)
for broad policy guidance and coordi-
nation of NERBC projects.)

NERBC Programs

Framework plans: (Studies of resource supplies, future resource needs,
and alternative methods of meeting such needs, with
recommended priorities. Conducted for each of the
11 river basins in New England and New York, selected
critical subregions, and proposed to be broken down
on a state-by-state basis as well, to facilitate
state programming.)

Federal-State
Coordination: (Recommended joint action plans to be implemented
by federal, state, local and nongovernmental agencies,
coordination of research activities of member agencies,
information exchange, conferences, sponsorship of
joint projects.)

Special Studies: (Review and comment on proposed projects at request of
federal and state officials, studies of particular re-
gional problems, coordinated demonstration projects.)

265

represents state government interests and is elected by the
state and interstate members. The chairman is required to
conduct all proceedings of the Commission "in consultation
with the vice-chairman." 17/

Meetings are held quarterly, and any decisions
are normally made by consensus of the membership. L8/ where
a consensus is not reached, the federal statute and Water
Resources Council regulations require that the chairman,
acting in behalf of the federal members, and the vice-
chairman, acting upon instructions of the state members,
each set forth their views in the record. Policy deter-
minations for specific areas of water resources planning
(such as plans for critical subregions, or studies of parti-
cular regionwide problems) are often made by coordinating
committees or task forces appointed by the chairman in
consultation with the vice-chairman, rather than by the'Com-
mission as a whole. L9_/

Federal and interstate members participate on a
somewhat different basis than state representatives. The
federal and interstate members are responsible to their
parent agencies, which have specific programs and goals,
usually transcending state boundaries, they wish to be con-
sidered by the Commission. 20/ State representatives, on
the other hand, represent only their own states within the
region, and must attempt to maintain contact with and present
the views of all the various agencies within their state,
as well as "metropolitan and local government agencies." 21/
Furthermore, they "serve as the focal point for non-Federal
and nongovernmental participation in commission planning
from with'in the State." 22/ State members are appointed
by state governors, and the existing state membership in-
cludes two 'state planning directors, several natural re-
sources and conservation administrators, and two chiefs of
state water resources agencies. 23/

The daily work of the- Commission is carried on by
an eight-man staff, with the cooperation of staff from mem-
ber agencies on particular projects, under an annual budget
of approximately $200,000 (including both federal and state
contributions). 24/ A typical functional structure for
coordinated work by members on a project is set out at page
266. some projects and studies are undertaken by outside
consultants under contract with the Commission. 25/

266

Proposed Organization for the

Comprehensive Study of the Water and Related Land Resources for

Long Island Sound

Function:
NEW ENGLAND Set general policy for the conduct
RIVER BASINS of the study, with particular atten-
tion to issues of regional signifi-
COMMISSION cance, institutional and legal issues,
and issues affecting the entire
membership. Review and transmit
final plan to Governors and to Water
Resources Council for transmittal
to President and the Congress

Function:
LONG ISLAND SOUND Continuing guidance of the study,
COORDINATING COMMITTEE coordinate work and budgets, over-
all direction of plan'formulation.
Chairman of NERBC Submit completed plan to whole
Connecticut Member Commission.
New York Member

Function:
NERBC Staff Man Chair and lead Plan Formulation
Team. Act as Secretary to Coordi-
nating Committee. Responsible for
timely execution of work.

Function:
LONG ISLAND SOUND Perform all analytical work and
formulate the plan or plans
PLAN FORMULATION TEAM

NERBC Staff Army
Connecticut Interior
New York other federal

Local & Regional Government Repre-
sentatives

Citizen and University Representatives

267

Responsibilities of the Commission

The commission has jurisdiction over water re-
sources planning for 11 river basins in the six New England
states and in New York. For these areas, the Commission
has the responsibility to:

@'(l) serve as the principal agency for
coordination of water and related land
use plans in the region, including fed-
eral, state, interstate, local and non-
governmental plans;

Q
"(2) prepare and keep up-to-date a
comprehensive, coordinated joint plan
.for use in development of water and re-
lated land resources (the plan may be
prepared in stages, is to identify al-
ternative,@, and is to be directed at
specific action projects);

"(3) recommend,long range schedules
of priorities for collection of needed
basic information, for planning, and
for action projects;

"(4) foster and undertake studies." 26/

The Commission carries out these responsibilities
under the general supervision of the Water Resources Council,
which reviews all plans adopted by the Commission. The Coun-
cil requires public hearings to be held in the region on each
such plan, and requires that all members of the Commission
receive an opportunity to comment on plans which are adopted. 27/

The federal statute does not specifically allow
river basin commissions to engage in activities implementing
their plans. The regulations adopted by the Council, how-.
ever, do provide that river basin commissions may "make
recommendations to the Council and appropriate States on the
relationship of individual projects to the comprehensive
plan." 28/ Presumably the Council would consider such recom-
mendations in deciding whether to provide federal financial
assistance to the state concerned for its water resource
planning.

268 -

Programs Undertaken

in carrying out the purposes for which it was
created, the commission has undertaken a variety of activi-
ties, including cooperation with two broad federal water
resources studies covering the entire northeastern region,
the preparation of one comprehensive river basin plan (for
the Connecticut River Basin), initial efforts at comprehen-
sive plans for three selected subregions (Southeastern New
England, Long Island Sound, and the New England Coastal
zone), numerous studies of particular problems which have
caused concern in the region (such as flood plain regula-
tion, small private dams, and power plant siting), and
finally review and comment upon certain individual projects
in the region at the request of federal or state officials. 29/
Most of these plans, studies, and comments contain recom-
mendations for actions to be taken by federal and.state
officials and priorities to be attached to particular pro-
grams. The Commission has also sought to promote coopera-
tion, coordination, and exchange of information between
member agencies and other agencies concerned with the de-
velopment-or conservation of water and r&lated land resources..
both in working relationships on particular Commission pro-
jects and in the general activities of such agencies. Fin-
ally, the commission has proposed or adopted measures which
it feels will help assure its plans and recommendations are
implemented.

The Commission chairman reports that a number of
methods have been utilized to increase the general coordina-
tion of the activities of its members. Water resources
meetings have been held in five of the New England state
capitols, and the Commission has executed a memorandum of-
understanding with the New England Regional Commission---
another federal regional body, responsible to the U.S.
Department of Commerce, which also has programs in the
water resources area. 30/ The Commission publishes a bi-
monthly newsletter conE-aining information about the activi-
ties of various agencies in the New England area, and,
sponsors conferences, meetings, and symposia, which in
addition to the quarterly meetings of the Commission, pro-
vide a forum for the exchange of information and the coordi-
nation of programs. The Commission has also provided for
exchange of water resources research among water resources
departments in the region, through a permanent research
coordinator funded by the states, and located in the Com-
mission's offices. Finally, according to the chairman, the

269

Commission staff remain in frequent contact with member
agencies and their staffs, allowing regular exchange of
information through the Commission to its members. 31/

Comprehensive New England Water Resources Plan

The Commission's primary goal, aside from promoting
ongoing coordination of the activities of its members, is
the creation of a comprehensive plan for coordinated federal-
state management of water and related land resources in the
New England region. "Related land resources" in this con-
text refers to land uses which "cause significant effects
on the quantity and/or quality of the water resource" and
also to lands "the use or management of which is signifi-
cantly affected by or depends on . . . measures for manage-
ment, development or use of water resources." 32/ The Com-
mission has a long range strategy for completing the com-.
prehensive plan which includes:

"(1) a New England Framework--a look at
future needs, ways of meeting them, priori-
ties for tackling future problems for the
entire region, in each state, in major
basins;

"(2) joint federal-state water and
related land management plans for se-
lected subregions, including separately
organized and funded plans for South-
eastern New England and Long Island
Sound, [and] for each New England
state." 33/

The comprehensive plan for New England will be a
composite of these efforts. At this point, the Commission
is still preparing the various elements of the plan, except
for a plan for the Connecticut River Basin, a draft of which
has been completed.

The Commission anticipates that the "framework"
data will come primarily from the North Atlantic Regional
Water Resources Study. This study, headed by the Army Corps
of Engineers and begun before the creation of the Commission, 34/
is investigating water supply and demand relationships in
the North Atlantic region. The Corps has completed projec-
tions of water and related land needs through the year 2020

270

for major river basins in the region, and the study will
ultimately produce a wide variety of background data on
water resources. The commission is cooperating with the
Corps in the study, and plans to break down the study re-
sults, as up-dated by the Commission's own information-
gathering, according to river basin subregion, and state
within the region, to produce the New England Framework
(the basic background data on water resources in the region
necessary for the Commission to begin preparing a comprehen-
sive plan). 35/ Another study covering the northeastern
United States area may provide additional information to
the Commission--the Northeastern Water Supply Study. The
Army Corps of Engineers is also responsible for this study,
which resulted from a severe drought in the region in the
early 1960's. This study will propose alternative means
by which major metropolitan areas can satisfy their projected
water supply needs. 36/

While the Commission has not completed its New
England Framework, it has published a series of "Priorities"
reports which give basic water resources data for the New
England states (not New York), discuss particular problem
areas (water quality,, water supply, flood control and water-
shed management, navigation, recreation, and fish and wild-
life), list and summarize each state and federal agency's
programs and proposed projects for dealing with these prob-
lems, and recommend priorities among these programs and
projects. The recommendations are for the period 1972-
1976, by which time the Commission hopes to have completed
at least the major elements of its comprehensive plan. The
series of reports are broken down to be usable both by state
and by river basins. 37/

These priorities reports are a beginning for the
second element of the Commission's strategy for completing a
comprehensive plan (actual preparation of coordinated plans
for various portions of the region), since they make initial
recommendations for the management of water and related land
resources for each state in the region. The reports are
useful on an interim basis because plans have not yet been
prepared by the Commission for most of the New England
region, with the exception of the Connecticut River Basin
Plan, which has been draft ed but is not yet in its final
form.

271

The Connecticut River Basin Plan

Even though not in its final form, the Connecticut
River Basin Plan has been circulated in draft form, and is
worth examining closely because it is the only existing
example of the kind of planning presently being undertaken
by the Commission. The Plan has its roots in an Army Corps
of Engineers study begun before the Commission was created. 38/
The Corps remained in charge of the Commission's Coordinating
Committee which took over formal responsibility for the study
when the Commission was created in 1967, and the Corps'
point of view has influenced the objectives and recommenda-
tions of the study. Thus the design of the study and its
results do not entirely reflect the outlook or policies of
the Commission as a whole, because many of its members
have interests and viewpoints substantially different from
those of the Corps. With this limitation in mind, the -
Connecticut River Basin Study and the resulting comprehen-
sive water and related land resources plan for the basin
serve to illustrate how river basin planning is being con-
ducted by the Commission.

The study began in 1964 and proceeded by gathering
background data on the water and other natural resources in
the Connecticut River Basin, including a general description
of existing land uses, the climate of the region, and its
population and economy. Projections of population growth,
economic growth, and natural resource needs were made for
20-year increments through the year 2020. The current water
resources problems of the area were investigated. one of
the more serious problems noted was heavy pollution and
diminution of water quality in the basin. 39/ Past and
possible future flood damage was closely studied, 40/ as
were the problems of inadequate public access to many
areas 41/ and the deterioration of fisheries due to inade-
quate minimum stream flows and pollution, among other
factors. 12/ Many other problems and resource needs were
also studied, such as water supply and navigation needs,
electrical power needs, and the problem of disposing of
solid wastes. Patterns of land use (agriculture, recreation
and forestry) and land use regulation (flood plain manage-
ment) affecting water supply, water quality, and flood
control were studied, and predictions made as to future
trends. 43/

In June, 1970 a nine-volume report on the study
was issued by the Corps-directed Coordinating Committee,

- 272

which includes both a "1980 Early Action Plan" and a '12020
Long Range Plan." 44/ The excerpt from the report at page
273 summarizes the 1980 Early Action Plan designed to meet
the problems and needs uncovered in the study stage. The
total cost of the Early Action Plan would be $1.8 billion,
and, as the excerpt shows, much of this cost would be created
by new structures or additions to existing structures (such
as new dams and power plants, construction of fish ladders
at existing dams, provision of reservoir flow releases, and
expansion of existing facilities of various kinds). Non-
structural elements of the plan include some matters relating
to land use regulation, such as the reference to "850 sites
of archeological, historical, or natural resource areas"
which "should not be disturbed if possible by future develop-
ments within the basin." 45/ Recommendations for the pro-
tection of these sites include public acquisition, flood
plain zoning, basin-wide scenic river programs, and estab-
lishment of national recreation areas. Similar land use
regulation measures are recommended for facilitating public
access and recreation, for flood control, and for protection
of water supply and quality. The,necessary land use measures
would be undertaken primarily by state and local governments,
with the exception of federal actions necessary to establish
national parks and recreation areas. 46/ The Commission's
staff director, Malcolm Graf, is strongly urging the states
and local governments to acquire land for these purposes now
before the price rises. j27
Other non-structural proposals included in the 1980
portion of the plan also "lie largely in the local-State
areas of responsibilities and interest," and include such
items as further environmental studies on water quality and
recreation, acceleration of water resource planning assist-
ance to local communities, improved weather and streamflow
forecasting systems, improved operation of flood control
reservoirs, and creation of public information programs on
the availability of flood plain insurance. 4 The 2020
Long Range Plan follows the same format as the 1980 plan,
projecting the trends and problems noted in the 1980 plan
to the year 2020 and omitting specific project and budget
recommendations. 49/

The entire Coordinating Committee Report, including
the recommendations for 1980 and 2020 was subjected to an
extensive review by a Citizen Review Committee composed of
members from various communities of each of the states in-
volved. The Review Committee issued its own report on the
Connecticut River Basin Plan on February 1, 1971. 50/ The

WATER QUALITY FLOOD CONTROL
I .seconds ry Level Treatment for 1980 --------- ----------- 240JA 1. Corps. Dam - ---------------------------------------- S 86M
2. Waste T ... tm.ut for 1980 --------------------- 19 TOTAL COST $1.811 Victory $ 2 Honey Hw S 3
1. Others (Cost. not available) 5 M04dour 41
La. Flow Aaam"tati n Gayevine 23 13"rtr Brook I
Cocabiaed S-r Separation Claremont 10 Kadlittville I
Uncontrolled Runoff 2. $See ." Upstream Watershed Project - ---------------- 25
Diversion of Wmat"aters 3. Othenp4treem, Dams ----------------------- -------- I I
Bottom Deposits 4. rive Local protection project - ---------------------- 31
Cost ------------------------ ------------------------ S259M !I- FI0" Plain Regulation (*estimate not possible)
Cost -------------------------------------------------- il 73-M
15

WATERSUPPLY OUTDOOR RECREATION
1. Northfield Mt. Diversion ------------------------------- S 60M 1. Expansion of Existing water bodies --------------------- $ loM
3. E.Pansio of Municipal and Industrial S%pplie - ------------ JZ5 2. Coust:Zion of N- Water Bodies ---------------------- 93
3. Corps- R:..r,oir - ---------------------------- ------- 19 Corps' Reservoirs $55 P.L. $66 Reservoir, $10
114,11, Brook Other upstream 28
?mill Re .... oir.
Haney Hill J. National Recreation Alex PI an ------------------------- JZO
4. Upstream Reservoir - --------- ------- -------------- 3 4. Wild and Scenic Rivers - ------------------------------- 25
Cost ------------- ----------------------------------- $Z07M S. Modification of three existing Corps' Reservoirs --------- 5
cost --- --------------------------------------------- $Z53M

ANADROMOUS RESTORATION R!
NAVIGATION
1. Fish Ladders at Five Existing Power Dams ------------- S 13M I .Long Island Sound to Hartford
Commercial project ------------------- --------------- S 4M
-----------
1. Con.tru'tion of Nou, Fish Hatchery Facilities
3. Stresun 2. Hartford to Holyoke
ank Acquisition
-------------------------------
- ----------------------------
4. Preimlo'n of Reservoir Flow Relsaa as ------------------ Recreation project
3. Improvements in Main Stem Power Pool*, etc - ----------- I
Cost ------------------------------------------------- agm Cost ------------------------------------------------- 12M

MONSOON

RESIDENT FISH AND WILDLIFE UPSTREAM WATER AND RELATED LAND RESOURCE MANAGEMENT
I .Unproved Access at Existing Water Bodies (approx) ---- -- S 3M I land R .... rce Planning -------------------------- $3M
2. Provi:!an df Ne@ Water Bdies ------------------------- 17 Z: Land Treatment ------------------------------------- 33
Corp Reservoir* I@ P.L. 566 R ... r,oir. 2 Private Land. $31 National Forest. $2
Other Upstream Z3 01415 3. R..ou'.. Conservation and Development Projects ------- 24
4. National Forest Structural Improvements --------------- is
3. Expansion of F..Ulti -- ----------------------- 5 S. Land Acquisition for National Forest* .. ---------------- 9
4. Extensive Streambank Acquisition Program - ----------- ZO Cost --------------------------------------- - ------- 84-JA
Cast ----------------------------------------------- $66M

POWER PRESERVATION OF SITES
Installed Capacity 3,660 megawatts 1. A.choologic&I
1. Conventional Hydro - -------------------------------- $ SOM 1980 Z. Historical
Z. Pumped Storage Hydro ------------------------------- 210 3. Natural Resource
3. lot. Comb'"L*oGas Turbine ------------------------- 40 Cost ------------------------------------------------
4. Nuclear-fueled Steam --- ---------------- ------------ 400 Estimate not possible
Cost (private sector) ------------------------------- T-700M EARLY ACTION PIAN

CONNECTICUT RIVER BASIN

274

Review Committee report, though in general agreement with
the Coordinating Committee's statements of problems and
solutions, was quite critical in some areas. The Review
Committee found that the Coordinating Committee Report did
"not clearly explain the risks involved which substantiate
the need for a new system of large multi-purpose reservoirs." 51/
The Committee questioned "whether serious consideration has
been given to [alternative] measures such as flood plain
regulation or the removal of encroachments from hazardous
areas.".52/ Structural measures, the Committee felt,
tended to subsidize development in flood plains, by making
such developments appear less hazardous, without encouraging or
land use regulation to control such development. The result,
according tothe Committee, is that the use of structural
measures "tends to be self-perpetuating and self-expanding," @3/
because more structures cause more development and higher
risks to property, in turn leading to additional structures,
and so on.

The Review Committee also found that the Coordinating
Committee Report did not give adequate weight to environmental
quality objectives, 54/ and recommended, among other things,
that "increased emphasis" be placed on the adoption of land
use controls where necessary "to minimize dangers from ero-
sion, pollution, and rapid runoff on land suitable for de-
velopment." 55/ The Committee felt that each state in the
basin should enact legislation similar to Act No. 250 in
Vermont, which provides for a state Environmental Board, and
that such legislation should authorize regulation of "damaging
land uses that will have long-range deteriorating effects"
on the Connecticut River Basin area. 56/

As a result of the Review Committee's critical
comments, NERBC has submitted a "Proposed Supplemental
Study, Connecticut River Basin" 57/ for the restudy of the
Connecticut River Basin. This study will become the first
priority item of the two persons (still to be recruited)
who were to be responsible for implementing the original
plan. @8/ The supplemental study will undertake the fol-
lowing "tasks." 59/.

(1) Environmental reconnaissance of the Basin,

(2) Evaluation of the degree of additional
flood protection needed,

(3) Assessment of legal, institutional and
financed arrangements for flood protection
and flood plain management,

- 275 -

(4) Evaluation of flood management alterna-
tives, with environmental and economic
impact evaluations,

(5) Plan formulation.

The study will cost an estimated $700,000 and will
require an additional two and one-half years to complete. 60/

Future Plans

The commission anticipates that its future planning
efforts will be conducted somewhat differently than the Con-
necticut River Plan, with more emphasis on non-structural
and environmental matters, and with more participation by
public officials and citizens in all stages of the planning
process. 61/ Plans for other basins and for selected sub-
regions are either just underway or still await funding
by Congress. The Commission has not yet begun to prepare
plans by states within the region, although it proposes to
do this in order to facilitate adoption by states of Com-
mission recommendations and give states greater incentives
for participation in Commission activities. 62/

The Commission plans to work with the states of
New Hampshire, Vermont, and Maine in fiscal 1973. Progress
has been slow because the states lacked the expertise neces-
sary 'to work with the Commission In preparing the individual
statewide plans. The states have since agreed to provide
one man whose responsibility it will be to work with NERBC,
who will also assign one man to each state, to "look around
for a year or so" and jointly formulate guidelines for the
preparation of the plan. The final product for each state
is expected to be something like "A Guide for the Manage-
ment and Development of Water and Land Resources for the
State of . prepared in cooperation with the
New England River Basins Commission." 63/

The Commission has just begun a study of South-
eastern New England which will attempt to provide an action
program for the conservation and development of water and
related land resources in the most highly urbanized and
industrialized portion of New England, where water resources
problems are most critical. Numerous state, federal, and
local agencies will take part, as well as private interests.
Management of the study is by a team consisting,of state and
federal as well as Commission officials. The study will
build on existing state and local planning programs, and

276

will be a comprehensive endeavor including problems of flood
control, navigation, water supply, water quality control,
outdoor recreation and other such needs. The study has re-
ceived top priority from the Commission. 64/

Another subregion selected for study and coordi-
nated federal-state planning is the Coastal Zone of New
England. A separate study of Long Island Sound (which was
included within the Commission's jurisdiction by a 1970 exe-
cutive order @5/) will be undertaken. Neither study has
been funded by Congress, but the State of Maine has already
begun work on its portion of the Coastal Zone study under a
grant from the New England Regional Commission. 66/ The
grant was provided at the recommendation of the New England
River Basins Commission, pursuant to the letter of coopera-
tion between it and the New England Regional Commission. 67/
The Coastal Zone study will deal with the appropriateness
of various kinds of land uses in New England coastal areas,
in order to ensure that all coastal water and land resources
are used in a,manner "consistent with their natural char-
acter and ecological relationships." 68/

As to Long Island Soun d, a proposed plan of study,
prepared at a cost of $100,000, has been transmitted to the
Water Resources Council on July 30, 1971. 69/ The proposed
plan of study, which exceeds 300 pages, sets out in consider-
able detail not only the general planning approach for the
study and resulting plan, but also the methods by which the
public and the "research communities" will participate, the
expected participation by various federal agencies, and the
periodic reports which the Commission would expect to issue. 2-0/

The Commission sees the plan as a method by which
the region's need for the Sound's environmental and economic
aspects can be met, through notes and related land manage-
ment. 71/ It is expected that the following characteris-
tics o:Fthe Sound will be examined in great detail: 72/

(1) The quality, quantity and movement of
the Sound's water.

1
(2) The ecological characteristics of the
Sound.

(3) Economic interests in and around the
Sound.

(4) All present and proposed uses of the
Sound and its shorelands.

277

(5) Institutional and legal characteristics.

Procedurally, the plan will be broken into five
phases: 73/

(1) Inventories and special studies and activi-
ties.

(2) Inventory analysis and evaluation.

(3) Functional management plans.

(4) Plan analysis and comprehensive plan formu-
lation.

(5)' Report writing, review and transmittal.

Some concept of the tremendous scope of the plan is apparent
from the inventories which various work groups will be ex-
pected to contribute under Phase 1: 74/

Sources and Movement of Water Fishing Resources
Water Quality Wildlife Inventory
Scenic and Cultural Recreation Inventory
mineral Resource & Mining Existing Land Use & ownership
Soils Survey Flood Plains
Erosion and Sedimentation Electrical Power Generating
Ecological Baseline Facilities and Requirements
Water Supply Transportation

In addition, separate "Special Studies" will
cover.: 75/

Goals for the Region
Economic and Demographic Model
Environmental Framework
Legal and Institutional Framewotk

The proposed study will take an estimated three to four years
to complete, at a total cost of over $1,300,000.00 76/

Special Studies

In"the absence of plans covering many portions of
the region, the Commission has undertaken special studies
of regionwide problems and has reviewed and commented on
particular projects, delving into matters which would other-

278

wise be covered by a comprehensive plan if one were in
existence. Power plant siting is an example of a region-
wide problem the Commission has studied. The Commission
published a report suggesting laws and institutions which
could be used by states to make decisions on the siting of
power plants. 77/

In August of 1971 the Commission supplemented
its report with a proposal for a "Special Study to Assure
Consideration of Environmental Factors in Regional Bulk
Power System Planning." 28/ Basically, the objective@s of
the study are: 79/

(1) To assure effective consideration of envi-
ronmental factors in bulk power systems
planning within the NERBC region, making
available to individuals and to institutions
in the region information which can be used
as a basis for timely and informed decisions
on bulk power siting.

(2) To use available environmental expertise
in an efficient and effective manner with
regard to bulk power planning.

The study would take two years and cost an esti-
mated $500,000. a2O Apparently the utility companies in the
New England area are quite receptive to the study since
according to Commission Chairman Frank Gregg it is hoped such
a study will reduce the public pressure they have been under
with regard to the siting of generating plants and the result-
ing environmental effects..9-1/
other examples include a study, requested by the
New England Governors' Conference, of existing programs
(state and local) within the region for the control of land
development in flood plain areas. The study included model
state statutes and ordinances proposed by the Commission. 82/
Another study requested by the New England Governors concerned
safety measures needed at small, private dams. "83/ The Com-
mission is also working cooperatively with Massi@chusetts and
with the federal Department of the Interior to prepare a
water quality management plan for Boston Harbor which would
help restore many lost uses of the Harbor such as swimming
and shellfish harvesting. @4/ At the request of federal and
state officials, studies and reports have been issued by the
Commission on both nuclear and hydroelectric power plants
and their effects on adjacent water and related land resources.

279 -

In these reports the Commission has dealt with problems of
thermal pollution from nuclear power.plants, maintenance of
minimum river'flows,and provisions of fish passageways in
hydroelectric dams. 85/:

Effectiveness of the Commission

The Commission of course suffers from the lack of
any formal controls to assure implementation of its plans
and its suggestions for coordination. Likewise, its recom-
mendations on individual projects.and regionwide problems
are advisory only. A political scientist studying the
Commission suggests that although'such commissions maintain
contact with a wide variety of agencies, they are influential
in the decisions of very few, 86/,and that,state and federal
agencies may, and sometimes do, 87/ undertake projects or
programs in direct contradiction to Commission plans and.
recommenda-tions without any formal sanction being employed
by the Commission. Of course, Commission plans.are sub-
mitted to the Water Resources Council and once approved by
the Council become part of the national water resources
plan. The Council may then presumably refuse funding for
non-complying state water resources programs. In addition,
the Commission has a certain amount of informal authority
to enforce compliance with its suggestions. To the extent
that its members value the cooperation of other state and
federal agencies which are represented, opposition to one
member's proposals from other members may be influential.
But the force of regional opinion and the desirability of
maintaining cooperative relationships with other agencies
will probably not be influential where the gains to the
member who*opposes the Commission are potentially.great,
so that this sanction maybe least effective when it is
most necessary.

The Commission realizes it has no power to force
compliance with its plans and recommendations,.and has
proposed a number of measures which it feels will help bring
about voluntary compliance. In the Southeastern New England,
Coastal Zone, and Long Island Sound studies, the Commission
proposes to hold public hearings in all stages--from the
initial formulation of the study design-to,the final recom-
mendations for action. This approach has already been
tried in formulating the study design for the proposed Long
Island Sound study, and observers from outside the Commission
feel it has been fairly successful in involving the public.: 88/
The Commission's ultimate goal in involving the public would

452 - 329 0 - 72 - 19

280

be to make its activities more visible, and to bring public
pressure to bear an those who refuse to allow its plans
and recommendations for coordination. For these same rea-
sons, all the Commission's major plans, studies, and reports
are submitted to the New England Governors' Conference, where
,they are discussed and voted upon. The Commission chairman
feels that the support of the New England Governors' Confer-
ence for Commission activities has been substantial. 89/

To help implement the Connecticut River Basin Plan,
the Commission proposed that a four-man increase.in its staff
be budgeted by Congress and by the New England states. Ver-
mont and New Hampshire objected to the cost, so the proposal
was decreased to two additional staff members..20/ The two
additional staff members would maintain an office within the
Basin, and devote their time to focusing public attention
on the Plan,, as well as keeping up with current proposals of
state.and federal agenci.es within the Basin in order to re-
view.these for compliance with the Plan. The,two staff mem-
bers wouldalso put out a newsletter, give speeches, and
attend seminars and conferences of water resource officials
in the Basin. Th:ey would attempt to devise means by which
the Plan could be@implemented, and to communicate suggestions
on implementation-to federal and state,officials. The time
of these'two staff members would thus be spent-entirely upon
seeking implementation of the Connecticut River Basin Plan.
This:proposal-has been endorsed by the New England Governors'
Conference, and the Comrhission-'s..chairman anticipates that
it will become operative once the plan is revised and fin-
ally adopted. 91/

The Commission views as Its most important effort
at implementation the proposal-to conduct it,s planning activi-
ties by.state as well..as by subregion and river basin. State
members on river basin commissions have always had a for- .
mally equal status with federal members, but many limitations
have prevented the s,tate member-s7from fully participating
(lower state budgets,.inapplicability of river basin,plan-
ning efforts to.large,areas of many,states.,@and,the large
variety of state interests which@,must be represented by one
river basin commission member.for each state 9.2/)... State -.
members, -in. the past have, often 'merely@ commented on completed
studie2a, or,, when state memberSrhave Joined studies, they
have often-participated merely as observers. 93/ -The New.
England Commission proposes not only to issue Plans, for each
state, but also to bring about full state participation in
Commission ac,tivitie.s.

- 281 -

The Commission feels that the states would be
given incentives to participate by the fact that study re-
sults will ultimately be provided on a state-by-state basis
so that state agencies will be able to use the studies more
easily "to request authority and funding for state programs.",94/
The Commission hopes to give financial incentives to states
by convincing the Water Resources Council to streamline and
consolidate its procedures for issuing water resources plan-
ning grants to states. Increasing environmental concern and
the resultant growing vitality of state government will, the
Commission chairman predicts, bring about fuller state parti-
cipation. Finally, the Commission maintains that by pro-
viding results from studies on a state-by-state basis, and
by bringing about fuller state participation in regional
planning for the conservation and development of water re-
sources, the Commission planning efforts will facilitate,
ultimately, total resource planning by each state--statewide
planning for both land and water resources. 95/

It is quite difficult to judge the effectiveness
of the New England River Basins, Commission as it presently
exists, much less as it would exist if its-various proposals
are carried out. Its value as it is presently constituted
is as a vehicle of communication between:all state, inter-
state, and federal agencies concerned with water resources.
in New England, so that each agency may evaluate its@own ,
plans in the light of plans and activities of other agencies.
It also promotes efficiency in studies of water resources
problems for New England, by allowing only one study to pro-
ceed on one problem for the entire region, with participa-
tion of concerned agencies from throughout the region,
rather than having individual studies conducted by each
such agency. Such studies result in facts and recommenda-
tions which many state and federal agencies in New England
probably find useful..

at this, time it cannot be said that the Com-r@
mission's plans and recommendations have had any.great.
influence on the decisions of its members, particularly
where major state and federal.programs are concerned.,wThe
Commission very frequently,does not learn of major.program.-
proposals by its members until the programs have been-de@:
veloped and unveiled to the public (although Commission
staff will frequently learn of lesser proposals at an early
stage). 96/ Regional offices of federal agencies do not
wish to involve the Commission in their programming until
their proposals have been evaluated in Washington. State
agencies also normally prefer to wait until their programs

- 282 -

are in final form before referring them to the Commission.
It is often difficult for the commission to persuade state
or federal agencies to change these programs once they have-
been adopted. 97/ one solution to this type of problem
would be that advanced by the commission for implementing
the Connecticut River Basin plan--providing a field staff
which would learn of program.proposals and comment on them
at an earlier time than the Commission would normally learn
of such programs. 98/ This type of approach, however, does
not appear likely to achieve a major reorientation in the
attitudes of state and federal officials, most of whom are
likely to pursue what they view as the best interests of
their agency or state regardless of scrutiny from the Com-
mission.

It is likewise difficult to assess the probable
effectiveness of the Commission's other proposals such as
the One to obtain a substantial amount of public and poli-
tical support for its planning efforts through holding full
public hearings on each plan and placing the plan in the
political arena. 99/ It is questionable whether an agency
such as the New England River Basins Commission will ever
have the political base, or be visible enough, for such
techniques to be successful. 100/ Finally, the Commission's
proposals for fuller state participation may be difficult
to achieve in light of long superiority of federal members
in the river basin commission planning process. 101/

These factors clearly raise the question of the
ultimate effectiveness of river basin commissions to regu-
late the use of land. To the extent that they tend to em-
brace a geographic region, an environmental system rather
than a political subdivision, the prospects for their in-
creased use are bright. Problems of regional significance
are by definition soluble by such bodies, provided the
boundaries have been technically properly drawn--and pro-
vided commissions are granted some implementation authority.
Herein lies the crux of the problem. Without authority to
truly regulate land use, then river basin commissions will
remain yet another form of regional planning agency which,
however laudable a goal regional planning may be, will have.
minimal effect on the actual use of land within their re-
gional jurisdictions.

- 283

FOOTNOTES

Executive order No. 11371, September 6, 1967, 32 F.R.
12903, as amended by Executive Order No. 11528, April
24, 1970, 35 F.R. 6695.

2/ 42 U.S.C. �1962, et seq. (1970).

3/ River basin commissions may be created at the request
in writing of a state governor, if concurred in by not
less than one-half of the states affected. 42 U.S.C.
�1962b. The federal Water Resources Council has
adopted procedures governing the creation of such
commissions. 18 C.F.R. �702.

4/ Previous river basin commissions included the Pacific
Northwest River Basins Commission, the Great Lakes
Basin Commission, and the Souris-Red-Rainy River Basins
Commission. 42 U.S.C.A. �1962b (annotations). Non-
title II river basin commissions are created by federal-
interstate compact. Interview with Frank Gregg, Chair-
man, New England River Basins Commission, March 29, 1971.

5/ For a discussion, from a conservationists' point of
view, about how river basin planning should be con-
ducted, see Tippy, "Preservation Values in River Basin
Planning," 8 NATURAL RESOURCES JOURNAL 259 (1968).
River basin commissions do not have the authority to
engage in planning for interbasin transfers of water
between river basins, even though serious local water
shortages could be remedied in this way. Comment,
"Legal Planning for the Transfer of Water Between
River Basins," 55 CORNELL L. REV. 809, 825, 842 (1970).

6/ only federal, interstate and state agencies have formal
membership on river basin commissions. Members from
the state are expected to "coordinate among the State,
metropolitan, and local government agencies and serve
as the focal point for non-Federal and nongovernmental
participation . . . ... 18 C.F.R. �702.9(b)(2)(ii).

7/ See 42 U.S.C. �1962 (statement of policy).

B/ 1965 U.S. Code Congressional and.Administrati ve News
1923. The developments in water resources planning
prior to.1965 are analyzed in Fox, "New Horizons in

284

Water Resources Administration," 25 PUBLIC ADM. REV.
61 (1965). The policies behind the Water Resources
Planning Act are discussed in Comment, "Water Resources
'Planning Act of 1965--An Experiment in Creative Federal-
ism," 42 WASH. L. REV. 952 (1967).

9/ Id., at 1921.

10/ 42 U.S.C. �1962c.

ll/ New England River Basins Commission (hereinafter cited
as "NERBC"), 1970 Annual Report,'Appendix A; Charles H.
W. Foster,@ "The Thread of the Stream: The New England
River Basin Story" (Ph,.D. dissertation, Johns Hopkins,
1969).

12/ Id.

L3/ Ultimate, however, three other sia@ch commissions were
established before the executive order creating the-New
England River Basins Commission was issued in 1967.

14/ NERBC, 1970 Annual Report, Appendix A.
15/ The functioning, of river basin'commissions, as . governed
by the requirements of the Water Resources Planning Act,
is described in Comment, "Water Resources Planning Act
of 1965," supra note 8, at pp. 960-63. See also Hart,
"Creative Federalism: Recent Trends in Regional Water
Resources Planning and Development," 39'COLO. L. REV.
29, 34-35 (1966).

16/ See Table 1.

17/ 42.U.S.C.
18/ NERBC By-Laws, Part 4, Article 11, �1; id., Article IV, 4t
�2.

19/ Interview with Frank Gregg, March 29, 1971.

20/ Id.

21/ 18 C.F.R. �702.9(b)(2)(ii).

285

Z2/ Id

23/ Interview with Frank Gregg, March 29, 1971.

24/ NERBC, 1970 Annual Report.

25/ Interview with Robert August,*Ex'ecutive Director, New
.England Natural Resources Center, Boston, Massachusetts,
March 29, 1971.

26/ NERBC, 1969 Annual Report, at p.-5.

27/ 18 C.F.R. �702.11.

28/ 18 C.F.R. �702.10(b)(1).

29/ Interview with Frank Gregg, March 29, 1971; interview
with Robert August, March 29, 1971; interview-with@Dr.
Perry Hagenstein, Staff Member, New England Natural Re-
sources Center, Boston, Massachusetts, March 29, 1971.
These studies and plans are discussed subsequently in
text, and each will be fully cited where@it is discussed.,

30/ The creation of regional economic commissions is com-
pared to the creation of river basin commissions in
Hart, "Creative Federalism," supra note 15,: at pp. 42-43.

31/ Interview with Frank Gregg, March 29, 1971; NERBC,
1970 Annual Report. See also interviews cited note 29.

32/ 18 C.F.R. �702. 2 (h) .

33/ NERBC, 1970 Annual Report, at p. 8.

34/ Interview with Dr. Helen Ingram, National Water Com-
mission, Washington, D.C., April 1, 1971.

35/ Interview with Frank Gregg, March 29, 1971.

36/ NERBC, Priorities '72 - '76, 11-13.

37/ There are five volumes in this series of reports, one
for each state. However, most of the material in each
volume is identical to that contained in other volumes,
except for one portion referring to the needs and
priorities for the state covered by the particular
volume. NERBC, Priorities '72 - '76, (Name of State):
Water and Related Land Resource Pro@7rams for New England
(May 1, 1970).

- 286 -

Interview with Dr. Helen Ingram, April 1, 1971.

39/ Connecticut River Basin Report, at V-12 to -27. Both
thermal pollution and pollution by solid and liquid
wastes have caused most stretches of the Connecticut
River to be unusable for recreation purposes although
some progress has been made in cleaning up.the river
in recent years. See Hill, "The,Connecticut: Can the
River be Saved from its own Beauty," New York-Times
Magazine', January 12, 1,969, at p. 32. See also James,
"Salmon in the Connecticut?: New Life for an old
River," 141 OUTDOOR LIFE 39 (June, 1968).

40/ Connecticut River Basin Report, at V-28 to -32.

41/ Id. at V-45 to -49.

42/ Id. at pp. 49-52.

43/ Id. at pp. 63-75.

14/ NERBC, Connecticut River Basin Coordinating Committee,
"Comprehensive Water and Related Land Resources In-
vestigation: Connecticut River Basin" (June, 1970).

15/ Connecticut River Basin Report, at IX.

46/ Id. at �VII-1 to -5.

j7/ interview with Malc olm Graf, Staff Director, NERBC,
May 31, 1971.

48/ Id. at pp. -5 to -7.

49/ Id. at VII-40 to -45.

.@O/ NERBC, Citizen Review Committee, "Report on the Con-
necticut River Basin Comprehensive Water and Related
Land Resources Investigation," (February, 1971).

51/ Id. at 11-7.

.@2/ Id. at p. 9.

53/ Id.

54/ Id. at p. 3.

287

55/ Id. at p,. 17.

56/ Id.

57/ Proposed Supplemental Study, Connecticut River Basin,
New England River Basins Commission, September 2, 1971.

58/ Interview with Frank Gregg, September 7, 1971.

59/ Id.

60/ Id.

61/ Interview with Frank Gregg, September 7, 1971.

62/ Id.7 NERBC, 1970 Annual Report, at pp. 8-10.

63/ Interview with Frank Gregg, September 7, 1971.

64/ Id.; NERBC, 1969 and 1970 Annual Reports.

65/ Executive Order No. 11528, April 24, 1970, 35 F.R.
6695.

66/ NERBC, 1970 Annual Report.-

67/ See text accompanying note 27, supra.

68/ State of Maine, State Planning Office, Maine Co astal
Development Plan: Phase 1 Report, June, 1970, at p. .20.

69/ "Plan of Study, Long Island Sound Regional Study,"
411 New England River Basins ICommission, August 1, 1971.
70/ Id., at pp. 1-1-1-3.

71/ Id., at.pp. 2-23.

72/ Id., at pp. 2-26.

73/ Id., at pp. 4-5.

74/ Id., at pp. 3-8--3-10.

75/ Id., at pp. 3-10--3-11.

76/ Id., at pp. B-2 and 1-3.

288

77/ NERBC, Laws and Procedures for Power Plant Siting in
New England.

78/ "C. Special Study to Assure Conservation Of Environ-
mental Factors in Regional Bulk Power System Planning,"
NERBC Fiscal Year 1973, Budget Document Supplement,
July 20, 1971, as revised August 26, 1971.

79/ Id., at p. 4.

80/ Interview with Frank Gregg, September 7, 1971.

81/ Id.

@@2/ NERBC, Flood Hazard Area Management for New England,
December, 1970.

83/ NERBC, Safety Control of Private Dams, January, 1969.

84/ NERBC, 1970 Annual Report, at p. 5.

85/ NERBC, 1969 and 1970 Annual Reports.

86/ Interview with Dr. Helen Ingram, April 1, 1971. River
basin'commissions formed by federal-interstate compact,
rather than by executive order under the Water Re-
sources Planning Act, have more leverage with parti-
cipating agencies because of their power to delay im-
plementation of the agencies' plans. Interview with
Frank Gregg, September 7, 1971. But even this type of
commission (e.g., the Delaware River Basin Commission)
has been criticized as much too weak to exercise needed
controls'in river basin areas. Roberts, "River Basin
Authorities: A National Solution to Water Pollution,"
83 HARV. L. REV. 1527, 1544 (1970) (Roberts recommends
powerful, all-federal, river basin authorities rather
than the existing types).

87/ Interview with Frank Gregg, September 7, 1971; Guy J.
Kelnhofer, Regional Water Resources Planning--One Man's
Perspective (speech presented at joint meeting of
Interstate Conference on Water Problems and the Water
Resources Council, February 2-4, 1971).

88/ Interviews with Robert August, March 29, 1971; Dr.
Perry Hagenstein, March 29, 1971; and Dr. Helen Ingram,
April 1, 1971. Interview with Morris J. McClintock,
Executive Director, Conservation Law Foundation,
March 29, 1971.

289

89/ Interview with Frank Gregg, September 7, 1971.

90/ The original cost would have been $140,000 to be
shared by four states in the basin--Vermont, New
Hampshire, Massachusetts and Connecticut. The final
cost to the four states will be $70,000 with a match-
ing federal grant. Interview with Frank Gregg, Septem-
ber 7, 1971.

21/ Id.; NERBC, 1970 Annual Report, at p. 4.

92/ Guy J. Kelnhofer, Regional Water Resources Planning,
supra note 87.

93/ Id.; interview with Frank Gregg, September 7, 1971;
NERBC, 1970 Annual Report, at p. 9.

94/ NERBC, 1970 Annual Report, at p. 10.

25/ Id.; interview with Frank.Gregg, September 7, 1971.

96/ Interview with Frank Gregg, September 7, 1971.

97/ Id.

98/ See text accompanying notes 64 and 65, supra.

99/ See text accompanying note 61, supra.

100/ This position was taken by Dr. Helen Ingram, a politi-
cal scientist who is studying NERBC. Interview with
Dr. Ingram, April 1, 1971.

101/.See Guy J. Kelnhofer, Regional Water Resources Planning,
supra note.87.

290

SUMMARIES OF OTHER INNOVPTIVE LEGISLATION

The quiet revolution in land use control is not
following any neat and easily categorized pattern. Each
state is creating its own regulatory systems and govern-
mental institutions to suit its own particular needs.

As a consequence, any attempt to classify and
categorize recent state legislation must carry an air of
artificiality. The states themselves don't think in terms
of buying a particular style off the rack but rather of
custom-tailoring legislation to suit the social, political
and environmental conditions unique -to their state.

Nevertheless, for purposes of convenience the
other innovative legislation having a major impact on land
regulatory systems will be grouped in three categories:
(1) Critical area legislation, creating special regulatory
mechanisms to control land use in specific geographic
areas; (2) Study commission, often with some interim regu-
latory power, but basically created to propose new legis-
lation; and (3) Wetlands and shoreland laws designed to
control development of this environmentally critical type
of resource.

Finally, it should be noted that the legislation
that has already passed is just the tip of the iceberg.
In New York, California, Ohio,,Illinois, Florida and many
other states a variety of legislative committees, study
groups, task forces and other assorted outriders of the
legislative process are at work. Many of them have reached
the stage of proposing specific bills which will undoubtedly
continue to add to the list of innovative legislation over
the next few years. Space limitations, however, preclude
discussion of bills that have not yet been adopted.

- 291

1. Critical Area Legislation

The San Francisco Bay Conservation and Development
Commission discussed earlier in t'his report is an example
of state legislation designed to deal with the unique
problems of a specific geographic area.- A number of other
states have used this "critical area" approach by setting
up specific state agencies to control the use of land in
particular sections of the state.

(a), Tahoe Regional-Planning Agency

The fragile nature of the environment in the Tahoe
Basin has long been recognized. The deep blue color of Lake
Tahoe results from the unusual clarity of the water, which
in turn stems from the youthful age of the lake and the
relatively small volume of nutrients draining into it. Pro-
tectingthe esthetic value of the lake therefore requires
control over the drainage of nutrients into it.

As transportation to Tahoe has improved over re-
cent years the development of second homes, hotels, casinos
and other recreational facilities has increased proportion-
ally. Extensive sewer networks were built to export effluent
from the Basin in order to protect Lake Tahoe's water quality,
but surface runoff from developed areas is gradually turning
the color of portions of the lake from deep blue to a greener
hue.

Concern over ever-increasing development spawned
a raft of studies concerned with the need for a system of
unified planning and control of land use for this bi-state
area. Out of the various studies emerged the Tahoe Re-
gional Planning Agency, created by inte rstate Compact and
directed to prepare a plan for land use in the Basin and
to issue regulations to control all land development in the
Basin. l/

The governing body of the Agency consists of one
member appointed by each of the three local governments in
the Nevada half of the region, and three representatives
from local governments in the California half of the region.
Statewide interests are represented by the directors of
the natural resources department from each state and by
one additional gubernatorial appointee from each state.
Thus local interests in the Tahoe Basin have a clear
majority control.

292

The Compact directed the Agency to adopt the
regional plan within 18 months after the formation of the
Agency in March, 1970. 2/ An interim plan based on the
existing plans of local governments was adopted by the
Agency in August, 1970, and the Agency staff began work on
a "long-term general plan for the development of the
region."

Work on the plan was severely hampered by a
lack of funds caused by delay in receiving a federal plan-
ning grant @/ and by the refusal of two California counties
to make the local contribution of funds required by the
Compact until its constitutionality was upheld by the,
Supreme Court of California in August, 1971. A/ Because
of lack of other funds the bulk of the work on the plan
was undertaken by a study team provided by the U.S. Forest
Service.

Meanwhile, Congress also authorized the Department
of Interior "to study the feasibility,and desirability of
establishing a national lakeshore" in,Tahoe. _@/ A Bureau
of Outdoor Recreation team began work,on planning studies
for that purpose in the fall of 1970..

In May, 1971, the Agency staff released its
proposed plan. The plan emphasized analysis of the capa-
bilities of the land and the visual impact of development.
It proposed a regulatory system under which the type and
intensity of development permitted would be dependent on
(1) the capability of the land to take development without
adverse effects, and (2) the impact that the development
would have on the scenic character of the area..Z/

The staff plan received favorable comment from
conservation groups. V It would have severely limited
future development in the Tahoe Basin, permitting a maximum
population of around 150,000 as compared to the 700-900,000
that would be permitted under the interim plan..2/

Landowners, local businessmen, and local govern-
ment officials were not, however, pleased with the prospect
of seeing development so drastically limited, and the staff
plan was criticized because it failed to include the social
and economic elements usually included in a comprehensive
plan. ],Pj The area has little manufacturing or other tax
base to support its economy, 1:_I/ and land in the.Basin is
burdened with very heavy special assessments to pay for

293

the expensive network of sewers used to export effluent
from the Basin. The cost of these sewers gives local tax-
payers a strong incentive.to attract additional development
to help pay the bills. 11_2/ The revenues generated by
hotels and gambling casinos built or proposed in the Tahoe
area pay a large share of the bills of local governments.
And seasonal homes offer the advantage to local residents
of generating tax base without adding to school costs,
making them welcome to cost-conscious local officials. 1,3/

After the staff plan was released the Agency
appointed a subcommittee chaired by Ri-chard Heikka,
Planning Director for Placer County, and directed it to
prepare a "realistic plan." Working under severe time
constraints, the subcommittee released a proposal for such
a plan on August 25, 1971. 14/ It consisted of a single map
dividing the Basin into various land use districts, L5J
but provided that the areas designated for urban develop-
ment were to be subject to the environmental standards
proposed by the Forest Service and conta:Lned*in the staff
plan.

The Agency's Advisory Planning Committee recom-
mended the adoption of this plan on September 1, 1971. 1_6/
At the governing body meeting on September 22 the California
representatives,voted to adopt the plan but the Nevada
representatives refused to approve it. The governing body
did, however', declare a 90-day moratorium on all building
permits and direct the staff to prepare implementing
ordinances within that period. The governing body also
appointed Mr. Heikka as the new Acting Executive Officer,
and he feels confident that the plan and implementing
ordinances will be adopted before the end of 1971. 1:.7/

(b) Hackensack Meadowlands Development Commission

In 1968, the New Jersey Legislature passed the
Hackensack Meadowlands Reclamation and Development Act L8_/
creating the Hackensack Meadowlands Development-District,
an 18,000-acre area paralleling Manhattan two miles west
of the Hudson River. These marshlands lie only a few
minutes away from the high density urban areas of Manhattan,
Jersey City and Newark, but they have remained primarily
undeveloped because of their low elevation, which leads to
periodic flooding as high tides in* Newark Bay.cause the
Hackensack River to flood its,banks.,

- 294 -

The meadowlands fall within the jurisdiction of
fourteen different municipalities. Development has been
stunted and haphazard, consisting primarily of warehousing
facilities and some industry. Because local governments
in New Jersey are highly dependent upon property tax
revenues, each local government has been encouraging the
development of its portion of the Meadowlands area for
warehousing and light industrial use.

The Meadowlands Act creates the Hackensack
Meadowlands Development Commission as the primary agency
to administer the use of land in the district. The Com-
mission consists of the Commissioner of the State Department
of Community Affairs and six local residents appointed by
the Governor, with the advice and consent of the Senate, for
five-year,staggered terms. 1
L9J

The Commission is directed to prepare and adopt
a master plan. 221 The plan is to set forth guidelines and
standards for the comprehensive development of the Meadow-
lands District, including: land use, water supply and other
utilities, transport, housing and area redevelopment,
natural resources conservation, capital improvements and
public facilities programs, and.community appearance. 2-1/

The master plan is to include codes and standards
covering land use, comprehensive zoning, subdivisions,
building construction and design, housing, and the control
of air and water pollution and solid waste disposal. 22/
Local codes will not apply within the District unless they
are consistent with the master plan. Building construction
and design standards mustbe certificated by the chief
engineer of the District as meeting the engineering
standards of the District, which the Commission is em-
powered to promulgate. 23/

The Commission must submit the master plan to the
Hackensack Meadowlands Municipal Committee, created by the
Act and consisting of the fourteen mayors from the area. 2@1
If the Committee fails to'approve the plan the Commission
may adopt it only by a five to two vote of its members. 2V

The Commission is not solely a regulatory agency.
It is directed to provide solid waste disposal facilities
to relieve the.need for the extensive dumping now taking
place in the meadowlands. 26/ it may also undertake its
own reclamation or redevelopment projects. 27/ For these

295 -

purposes the Commission has the power to issue bonds, _i8J
impose special assessments, 2-9/ acquire property by
.purchase, L0J or condemnation, @11/ and accept gifts from
and enter into cooperative arrangements with federal and
local governmental agencies. 3
2

The Commission released its proposed master plan
in the fall of 1970. 33/ The plan recommends that a sub-
stantial segment of the area along the river be placed in
a marshland conservation zone. Near this area are to be
islands containing high-density, high-rise housing. Other
areas are reserved for industrial facilities, research
parks and warehousing. A belt of medium-density housing
posed for the western edge of the district with a
is pro
substantial regional shopping center and other facilities
of a regional nature such as a college or sports complex.

The implementation of the Conunission's plan is
unquestionably a long-range proposition. The commission
is devoting its major efforts in the initial stages to
the construction of a unified solid waste disposal system
that will relieve the pressure on the meadowlands for
sanitary landfill use. In addition the Commission is
working to provide a number of key attractions in the
meadowlands area that will act as a stimulus for the major
development that is expected in subsequent years of the
plan. A very substantial sports and recreation complex,
including a football stadium for the New York Giants, is
currently being planned. @4/

The Adirondack Park Agency was established by the
New York Legislature under a bill approved in the 1971
session. The Agency is responsible for the development of
a-,comprehensive plan to guide the future use of public and
private lands within Adirondack Park, and to establish
interim safeguards against "improvident uses" of-land
within the Park. 15/

Adirondack'Park is a state park located in north-
eastern New'York, extending over nearly six million acres
and parts of thirteen counties. @6/

In September of 1968 the Governor of the State of
New York appointed a,Temporary Study Commission on the
Future of the Adirondacks, to recommend, inter alia, what
measures could be taken to assure that development on

452 - 329 0 - 72 - 20

296 -

private land is appropriate and consistent with the long-
range well being of the area. 37 Upon closely examining,
the ownership patterns in the Adirondack Park, the.
Commission discovered that 3.5.million acres is in private
ownership, and that 32 owners hold over a million acres in
tracts of 10,000 acres or more, much of which is in the
hands of nonresident owners.

While intensive pressures for development have not
yet been created in the Park, the Commission noted*several
factors in its report which could lead to such pressures in
the very near future. First, nearly three-quarters of the
private landowners hold property classified as a "seasonal
residence," most of which are built on individual lots,
frequently of some size. Second, while little subdivision
has occurred so far, its profitability has begun to attract
the attention of both corporate and individual landowners.
Third, inheritance taxes may force heirs of current owners to
sell off portions of their land for subdivision, to realize
quick cash. Fourth, as indicated above, the use of private
land in the Park is largely unrestricted. 29/ The Commission
recommended that an independent, bipartisan Adirondack Park
Agency should be created by statute with the responsibility
to prepare a master plan and with general power over the use
of private and public land in the Park. All

Legislation to create the Park Agency, prepared
prior to the submission of the Commission's report, was.sub-
mitted to the 1971 session of the New York Legislature. All
It was "solidly opposed" by Adirondack-area legislators- who
apparently resented outside interference in what they c@n-
sidered local matters. The bill as passed was a compromise
with the Commission's recommendations. �2/

The Adirondack Park Agency Act, 4@1 aimed at the
"threat of unregulated development" on private land within the
Park, established the Adirondack Park Agency, which came into,
being on September 1, 1971. The Agency consists of seven
members appointed.by the Governor (all of whom were appointed
on September 10, 1971), 14/ together with the Commissioner of
Environmental Conservation and the Director of the Office of
Planning Services. None of the appointed members may be state
officers or employees, and four of the seven must reside within
the Park's boundaries @L5J (the Commission's report recommended
three). �6j

Aside from the usual business and housekeeping
functions (to maintain facilities, execute contracts, etc.) 47/

- 297 -

the Agency is directed to prepare and submit to the legisla-
ture by January 1, 1973, a land use and development plan
applicable to all private lands in Adirondack Park, together
with recommendations for implementation. 48/ Meanwhile, until
the plan is adopted by the legislature or until June 1, 1973
(whichever occurs earlier), the Agency is empowered to adopt
rules and regulations for reviewing any proposed development
on private lands within the Park ". . . which might have an
adverse effect upon the park's unique scenic, historic,
ecological and natural resources . . . ." Under the interim
regulations, any developer must submit a project description
to the Agency for its review. For at least 90 days there-
after, the developer may not proceed unless the Agency reports
favorably within that period, after a public hearing. If the
Agency finds that the proposed project would have a "substan-
tial and lasting adverse impact" on the Park, or that it is
not "in substantial conformity" with the policies of the Act,
it may prohibit the project until June 1, 1973. 49/

The master plan for private lands must divide the
Park into areas and establish regulations to control the
intensity of land.use and development in each area, including
the type, character and extent of development. 50/

The recommendations for implementation must in-
clude specific legislative, administrative and budgetary
recommendations for private land and state action. Values
to be protected include scen ic and historic as well as
ecological and natural. 51/

The bill is not without its compromises, however.
There are several exemptions from the interim.regulations,
the only regulatory powerspossessed by the Agency until
401 after the land use and development plan is passed. First,
the interim regulations do not apply to any local-goverhment
unit which enacts zoning and subdivision control regulations
that the Agency determines are ". . . consistent with and
effectuate the objectives, policies and standards of this
section," at any time. For those who adopted such regula-
tions prior to July 1, 1971, the interim regulations are
inapplicable and the Agency has no power of review. 52/
The resul't has been a flurry of activity on the part of
local municipalities to pass zoning ordinances, many of
which may be of questionable validity. 53/ Second, inte@kim
regulations are not applicable to "bona fide managementk.,
of forests, woodlands or plantations, including I gging,@':_'.
Third, the regulations are inapplicable to."bona fide
management" of land for agriculture, live-stock raising,;,,,,'...,
horticulture and orchards. Fourth, and finally, the

298 -

regulations are inapplicable to any project involving less
than five acres and.fewer than five lots. @4/

The Agency is also charged with preparing and
submitting to the Governor, prior to June 1,-197.2, a
master plan for the management of state lands within the
Park. Upon the Governor's approval, the Department of
Environmental Conservation is directed to develop manage-
ment plans for individual units of land classified under At
the master plan, and in conformance thereto. @5/

For administration of the Act, the legislature
appropriated $250,000, the'bulk of which will presumably
go to the Agency.

Since the Agency is legally operative as of
September 1, 1971, it has already begun meeting. Its
first priorities are the appointment of staff and promul-
gation of its rules and regulations to govern interim
development. Both matters will be taken up on October 9,
at a meeting in Raybrook, New York (the Commission's head-
quarters'in Essex County), in the middle of the Adirondacks.
Meanwhile, what staff functions there are to be performed
are being handled by the staffs of the State Planning Office
and the Department of Environmental Conservation, whose
heads are ex officio members of the Commission. @7/

Reaction to the Agency is hardly uniform among the
Park's residents, as revealed in interviews reported by The
New York Times on August 24, 1971. As noted above, whole
communities chose to exempt,themselves, at least from the
Agency's interim regulations, by enacting zoning ordinances.
While some residents apparently favor the Agency's creation,
in hopes of saving some of the Adirondack area, others, like
James Dezalin, chairman of the Essex County Board of Super-
visors, insist that a development plan is needed as heirs
of present owners sell out to the only available buyers--
the developers. Others take a balanced attitude toward the
Agency, like Mrs. Mary Prime, a sixth-generation "Adiron-
dacker" recently named to the Agency by the Governor:
"We're independent people, but life has become too compli-
cated and there are so many people. There's a certain
apprehension on the part of small landowners that they'll
lose their identity." Others, like Lilbern Yandon,
Supervisor of the Town of Newcomb, simply object to the
outside interference from "professionals.." L8J

It is much too early to speculate about the
success of the Agency. With two plans to prepare and

299 -

interim regulations to administer, all in the space of two
years, it is perhaps an understatement to observe that its
nine members (and staff) will be busy. The numerous
exemptions for interim regulation do not bode well for
any immediate halting of development. The blanket exemp-
tion of local-government units adopting zoning and subdi-
vision regulations, together with all logging and
agriculture regulations, weakens the Agency's ability to
implement its plans. The mixed climate among the residents
will also affect the Agency's performance. Perhaps the
best summary of the Agency's role comes from Henry L.
Diamond, State Commissioner of Environmental Conservation,
who sees the Agency as ". . . a Solomon-like operation;
the 'forever wild' people are going to want to stop
everything and the developers will want to keep eating
away.11 @@9 One can but hope the Adirondack Park will
not have to endure Solomon's threatened remedy for
antagonistic claimants, for it is unlikely that the
rending of the Park will be of benefit to either group.

(d) Delaware Coastal Zone Act

The construction of the supertanker which is too
large to use existing harbor facilities on the East Coast
has spurred a search for new oil terminals by the petroleum
industry. It has also engendered a counterforce of local
residents who oppose any such facilities, and the Maine
Site Location Law is one result.

An even more recent and even stronger negative
reaction to the prospect of new oil terminals is Delaware's
Coastal Zone Act. @@Q The Act specifically seeks to
prohibit new heavy industry along the entire coast of the
state, the General Assembly having found that such industry
is "incompatible with the natural environment in those
4@ [coastal] areas." _@l
Thus, heavy industry and off-shore
-71 gas, liquid or solid bulk product transfer facilities are
entirely prohibited after the effecti I @2
ve date of the Act
and all other manufacturing uses, as well as the expansion
of nonconforming industrial uses, are allowed by permit
only. _@3/ Environmental, economic and esthetic effects,
together with number and type of supporting facilities
required, effect on neighboring land uses, and county and
municipal comprehensive development and/or conservation
plans are declared to be factors for consideration in the
granting of permits._@4
j Requests for permits are made to the
State Planning Office,-�V and appeals therefrom go to a newly-
created State Coastal Zone Industrial Board. 6

- 300 -

2. Land Use Study Commissions

A number of states around the country have created
land use committees or commissions which are directed to pre-
pare comprehensive studies and plans looking toward modern-
ization and overhaul of the state land regulatory system.
Some of these commissions have been given interim regulatory
powers, and all are pointing toward more comprehensive
legislation in the next few years.
roll

(a) The Colorado Land Use Act

An influx of fun-seekers together with accompanying
residential and recreational developers combined to produce
concern in Colorado for the future of the state's land
management. _@27 This concern with recreational and second-
home development is largely responsible,for three bills,
passed in 1971, which are collectively called the Colorado
Land Use Act of 1971. _@_8/

In order to increase planning effectiveness in
Colorado, the Act did several things. First, the membership
of the Land Use Commission (created the previous year) was
increased from seven to nine, and an advisory committee made
up of representatives from commerce, industry, agriculture,
conservation and natural resources, together with four
members of the General Assembly, was established. Second,
the Commission was directed to develop Interim and Final
Plans of State Development Policy by September 1, 1972, and
December 1, 1973, respectively. Third, the Commission was
required to develop a series of standards and guidelines
for various units of government in the state. For the
counties, the Commission is to develop model subdivision
regulations. For all levels of government, the Commission
is required to develop a system for monitoring growth and
change in the state, a means of evaluating the impact on
proposed development, a system for identifying environmental
concerns and relating them to development, and a system for
documenting the state's existing land use control policies
and planning. Generally, the Commission is further required
to develop flood plain control standards and criteria, and
recommend critical conservation and recreation areas. @29/

The Governor, on recommendation of the Commission,
is empowered to restrai n any land development activity which
constitutes a danger or potential danger of irreparable
injury, loss, or damage of serious and maj roportions
3or p
to the public health, safety and welfare. 2-01

301

The Land Use Act provides for a good deal of devel-
opment control at the county level as well. All counties in
the state are required to create planning commissions. 2-11
They are further required to maintain either building permits
or improvement notices for their entire area of jurisdic-
tion. 22
/ By July 1, 1972, each county must further promul-
gate subdivision regulations, which must include minimum
standards and technical procedures applicable to drainage
maps, sewer plans and designs for water systems. If such
regulations are not so promulgated, then the Commission is
empowered to do so for any tardy county. 2V

Finally, the Act establishes a $200,000 fund, from
which any county, municipality or regional.planning agency
which is designated by the Commission as an area of critical
planning need may apply for planning aid to carry out a
work program agreed to by the municipality, county or agency
and the Commission. 74/

The commission staff foresees a gradual process by
which the various governmental agencies and interest groups
in the state come to realize the need for greater coordina-
tion in the planning and regulation of land development in
the'state. Further legislation on these subjects is expected
to be introduced in coming sessions of the legislature. 2_11

(b) Washington Land Planning Commission

The Governor of Washington, on May 19, 1971, signed
a bill creating a State Land Planning Commission, effective
August 9, 1971. The Commission's principal function will be
to investigate, evaluate and recommend conserving-state land
use changes which have impact beyond the physical boundaries
of the governmental jurisdiction in which a proposed land
use is located. 2-6/

A major task of the 19-member Commission will be
the development of a statewide land use data bank "or
alternate system for the assembly of information that will
assist in the formulation, evaluation, and updating of
intermediate and long-range goals and policies for land.use,
population growth and distribution, urban expansion, open
space, resource preservation and utilization, and other
factors which shape statewide development patterns and sig-
nificantly influence the quality of the state's environ-
ment." 2-7/ It is intended that all governmental and private
agencies in the state.will make use of this,pool or

- 302 -

bank. 28/ The Commission's findings, conclusions and recom-
mendations with regard to such a system are to be submitted
to any extraordinary 1972 session of the state legislature
which may be called. 2-9/
The Commission's other primary function is to study
all of Washington's laws, and those of other states and the
Federal government, in the area of land use controls. It
is also directed to include in its study public and private
land use studies and proposals such as the American Law
Institute's Model Land Use Code. DQ/ The results of this
study, in the form Of a model land use code for Washington,
together with recommendations for new laws and revisions in
present ones to allow statewide interests to be considered
in future land development, and recommendations as to plan-
ning criteria and guidelines for local communities in the
preparation of local land use plans, are also to be presented
to the 1973 (forty-third) session of the Washington
Legislature. q-l/

The Commission received a budget of only $91,000
"for the biennium ending June 30, 1973," 8_Z_/ but a federal
planning grant is expected to substantially increase the
funds available. .93/

In May of 1971, the Alaska Legislature created
a Joint State-Federal Natural Resources and Land Use Planning
Commission, to-"formulate-a coordinated land use policy
governing the wise and beneficial use and management of-
natural resources and land in the State."Pli/ In the summer 14
of 1971, the Governor of Alaska appointed six members to the
Commission, and established a 10-member ad hoc land use
planning and classification group to work with the Bureau of
Land Management on land use planning and classification..gv .4@

According to the Act, the state intends that its
development proceed in a coordinated effort between the
United States, as the largest state landowner, and the state
agencies. Therefore, the state "invites the Congress of the
United States to join with it" in establishing a Joint
commission. 86/

It is not at all clear how this partnership is to
work out since by the terms of the Act, the six members are

- 303

all state people: two members of the governor's cabinet (or
their designees), two members of the Alaska Legislaturej and
two citizens of the state "who are recognized as being knowl-
edgeable in the area of natural resource management and who
are not employed by the executive branch of the state or
federal government." 87/

The Commission.is to "be responsible for" the pre-
paration of a statewide natural resources and land use plan,
provisions of which "may" include, inter alia, designation
of lands reserved for permanent federal ownership; and uses
to be made of land in federal or state ownership. The Com-
mission is also directed to review federal "withdrawals" and
recommend modifications, establish a committee of land use
advisors, and recommend changes in laws, policies and pro-
grams to the President of the United States, the United-States
Congress, the Alaska Legislature and the Governor. 88/ If
the Governor concurs in.any designation of lands maEe- by the
Commission, that use "to that extent" is established for the
state lands. 89/

The powers granted the Commission are, with the
exception of its plan-making, almost nonexistent. As to the
plan itself, there is no real indication of what it should
contain or when it is to be completed. There is, furthermore,
no appropriation for expenses of the Commission, or a staff
should it choose to appoint one. Jack Hession of the local
Sierra Club argues that:

"Taken together, the new commission and the
ad hoc planning group in the Department of
Natural Resources represent a gesture towards
meaningful state participation in any joint
state-federal land use commission. However,
until the administration adequately funds
such an effort, the action will continue to
be regarded by conservationists here as mere
lip service designed to sell the 'lower 48'
on the Egan administration's concern for the
environment, thereby smoothing the way for the
trans-Alaska pipeline. If the federal legis-
lation passes, the governor's bluff would, be
called [the state would have to pay one-third
under current federal proposals] and a budgetary
request for the state's contribution would be.
necessary to demonstrate the sincerity of the
administration." 90/

Further developments in Alaska and in Washington may be
necessary to clarify the future role of the Commission.

304

3. Wetland and Shoreland Laws

Among the most popular of regional land use controls
exercised by those states with any appreciable coastland are
shoreland and wetland laws. Regulations governing development,
such as Massachusetts'inland and coastal protection lawsi have
been passed by over a dozen states in the last few years,
though many so far lack sufficient experience to judge their
efficiency. Without attempting to comment upon the experience
in each jurisdiction, the following is a brief summary of
some of the state laws aimed at the protection of shorelands
and wetlands, grouped according to the comprehensive nature
of the program as it appears from the pertinent legislation.

(a) Comprehensive Protection Statutes.

. A number of states have enacted statutes the effect
of which is to generally prohibit development on shoreland
areas. The most recent such enactment comes from North
Carolina as part of a comprehensive environmental package
passed in the 1971 session by that-state's General Assembly.
The principal shoreland protection measures are found in
H.B. 705. 11J It provides essentially three means of protec-
tion. First, a Board of Water and Air Resources is authorized
to establish a shoreland protection line and adopt regulations
for protection in any county that has not done so by December
31, 1971. 2-2-/ Second, a more common dredge-and-fill provision
requires a permit from the Department of Conservation and
Development before any excavation or filling project is begun
in any estuarine waters, tidelands, marshlands, or state-owned
lakes. 2,1/ The Department may deny the applications for
permit if it finds that there will be significant adverse
effect on:

(1) the use of the water by the public;
(2) the value and enjoyment of the property
of any riparian owners;
(3) public health, safety and welfare;
(4) the conservation of public and private
water supplies;
(5) wildlife or fresh water, estuarine or
marine fisheries.

Third, the Director of the Department of Conservation and
Development is authorized@to adopt orders regulating, re-
stricting, or prohibiting dredging, filling, removing or

- 305

otherwise altering coastal wetlands.. Coastal wetlands are
defined as any marsh together with "such contiguous land as
the Director reasonably deems necessary to affect by any
such order in carrying out the purposes of this section."

Rhode Island has established a similarly broad-
based, albeit less comprehensive, shoreland protection system
by means of legislation passed in the January 1971 legisla-
tive session. gy The Rhode Island act establishes a
15-member Coastal Resources Management Council with "primary
responsibility" for planning and management of the resources
of the state's coastal region. 27/ The Council is further
authorized to formulate policies and plans and to adopt
regulations necessary to implement its various management
programs. Any person proposing development or operation
within, above or beneath the tidal water below the mean high
water mark must demonstrate that the proposal doesn't con-
flict with any management plan or,program, or make the area
unsuitable for the uses provided in the program, or damage
the environment of the coastal region. Regardless of their
actual location, the Council can approve, modify, set condi-
tions for, or reject the design, location, construction
alteration, and operation of specified activities or land
uses when these are related to a water area under the agency's
jurisdiction. This includes issuing, modifying, or denying
permits for work including dredging and filling of marshes
and other water areas in its jurisdiction. 28

Connecticut similarly protects tidal wetlands in
a general way by requiring a permit issued by the Commissioner
of Agricultural and Natural Resources before any draining,
filling, dredging, dumping or any other type of development
can take place. 29
J The pertinent statute was signed into
law in July of 19b9. The Commissioner is also required to
inventory all wetlands, defined to include banks, bogs, salt
marshes, swamps, meadows and flats. !QO/ Under a 1971 amend-
ment to the above legislation, the Commissioner may
temporarily designate an un-inventoried and un-mapped area
a wetland if he finds the area is in immediate danger of
being despoiled by any activity which would require a permit
if such area were designated a wetland. Such a designation
fails in 60 days, however, if the mapping of the area is not
completed within 60 days. iloij

(b) Fill and Dredge Statutes

The most common of the statutory provisions afford
limited protection to wetlands by regulating filling and

- 306

dredging thereon. For example, Maryland prohibits dredging or
filling on state wetlands without a license from its Board
of Public Lands. No such license is available without a
hearing and without consultation with both state and federal
agencies. Economic, ecological, developmental, recreational
and esthetic values are considered in each license applica-
tion. !P2/ moreover, the secretary of Natural Resources is
authorized to promulgate rules and regulations governing the
dredging, filling, removing or otherwise altering or pollut-
ing of private wetlands as well, provided he first obtains
the consent of the Maryland Agricultural Commission. 123/
After inventorying private wetlands, holding hearings and
promulgating regulations, any activity not permitted of right
thereon is subject to a permit application. In granting,
denying or limiting such an application, the effect on public
health and @qelfare, marine fisheries, shell fisheries, wild-
life, economic benefits, protection of life and property from
flood, hurricane and other natural disaster, and public
policy as set forth in the act must be considered. 104/

Georgia similarly offers limited protection to its
wetlands by means of prohibiting filling and dredging. In
1970 the Georgia Legislature passed the Coastal Marshlands
Protection Act which created the Coastal Marshlands Protection
Agency. 12_5/ No person may remove, fill, dredge, drain or
otherwise alter any marshlands within the estuarine areas of
Georgia without first obtaining a permit from the Agency. 126/
The Agency also has power to promulgate regulations. 127/

307 -

FOOTNOTES

Tahoe Regional Planning Compact, P.L. 91-148, 83 Stat.
360, approved December 18, 1969. Previous studies
are cited and discussed in John Ayer, "Water Quality
Control of Lake Tahoe," 58 CALIF. L. REV. 1273 (1970).

The Agency's legal advisors have opined that these
time limits were directory and not mandatory. Conver-
sation with Richard Heikka, Acting Executive Officer,
Tahoe Regional Planning Agency,'October 8, 1971.

Interview with J. K. Smith, then Executive Officer,
Tahoe Regional Planning Agency, August 31, 1971.

People ex rel. Younger v. CountV of El Dorado, 96
Cal. Rptr. 553 (1971).

Interview with J. K. Smith, August 31, 1971.

P.L. 91-425, signed September 26, 1970. See Senate
Report No. 91-855, May 11, 1970.

Tahoe Regional Planning Agency, "Proposed Regional
Plan, Lake Tahoe Region" (May, 1971).

William Bronson, "It's About Too Late for Tahoe"
AUDOBON (May, 1971, p. 47); Sierra Club ENVIRONMENTAL
ALERT, mailed August 20, 1971.

Interview with J. K. Smith, August 31, 1971.

_LO/ interview with Chris Degenhardt, consultant to the
Agency on the general plan, September 1, 1971.

.Llj- Bureau of Outdoor Recreation, "Lake Tahoe: Strategies
14, to Save a Lake" 17-18 (Draft of June 15, 1971).
_12/ Professor John Ayer suggests that in retrospect the
sewage exportation plan may have been counterproduc-
tive because it has stimulated so much additional
development. Conversation with Professor John Ayer,
University of California at Davis Law School,
August 25, 1971.

13/ Ayer, op. cit. note 1 at 1322.

- 308

14/ Tahoe Regional Planning Agency, "Preliminary General
Plan" (undated).

15/ The plan submitted for adoption consisted only of the
map. About 5000 words of text accompanied the map
in the version released to the public but the text
was not to be part of the official plan. Interview
with Chris Degenhardt, September 1, 1971.

16/ San Francisco Chronicle, September 2, 1971, at p. 3.

17/ Conversation with Richard Heikka, October 8, 1971.

18/ Ch. 404 of the Laws of 1968, N.J. Stat., C.13:17-1
et seq.

19/ N.J. Stat., C.13:17-5.

20/ N.J. Stat., C.13:17-9.

2l/ N.J. Stat., C.13:17-11(a).

22/ N.J. Stat., C.13:17-11(b),13.

23/ N.J. Stat., C.13:17-6(k).

24/ N.J. Stat., C.13:17-7.

25/ N.J. Stat., C.13:17-8.

26/ N.J. Stat., C.13:17-12.

27/ N.J. Stat., C.13:17-5(j),17-20, 21.

28/ N. J. Stat., C.13:17-23-17-33.

29/ N.J. Stat., C.13:17-39-1759.

30/ N.J. Stat., C. 13:17-6 (g) .

31/ N.J.Stat., C.13:17-34-17-38.

32/ N.J. -Stat. C.13:17-6(h),17-79,17-80

33/ Hackensack Meadowlands Comprehensive Land Use,Plan,
prepared by the Hackensack Meadowlands Development
Commission, Dan Coleman Associates, Principal-
Consultant (October, 1970).

309 -

@4 Interview with Cliff Goldman, Acting Executive Director,
Hackensack Meadowlands Development commission, July 28,
1971.

State of New York Executive Chamber News Release,
September 10, 1971.

_L6/ "Adirondack State Park Residents Await Development
Agency with Mixed Feelings," The New York Times,
August 24, 1971, p. 33; "The Future of Adirondack Park,"
report of the Temporary Study Commission on the Future
of the Adirondacks, submitted to the Governor of New
York on December 15, 1970, at pp. 8 to 26.

17J "The Future of Adirondack Park," op. cit. at p. 3.
The other questions to which the Commission was to
address itself were:
What should be the long range policy of the State
toward the acquisition of additional forest
preserve land?
What should be the State policy toward recreation
in the area?
Should there be federal participation in any phase
of the plans, including@a limited park or wilder-
ness area?
Should there be greater management flexibility in
some portions of the area?
Should there be even stronger safeguards for the
wilderness portions?
Should procedures be developed for a more flexible
policy regarding consolidation of public lands?

2-8/ "The Future of Adirondack Park,"
p. cit.' at pp. 26-27.

19
Id.,- "Adirondack State Park.Residents.Await Development
Agency With Mixed Feelings," The New York-Times,
August 24, 1971, p. 33.

"The Future of Adirondack Park," op. cit. note 36, at
p. 25.

@Llj Id., at P. 30.

.!L2j "Adirondack State Park Residents Await Development
Agency With Mixed Feelings," The New York Times,
August 24, 1971, at p. 33.

13
Article 27, ��800-810, McKinney's Revised Statutes of
New York.

310

44/ State of New York Executive chamber News Release,
September 10, 1971. The members are Richard W.
Lawrence, Jr.; William J. Foley; James Bird; Mrs.
Raymond (Mary F.) Prime; Joseph P. Tonelli; Peter
S. 'Paine, Jr., Whitman Daniels.

45/ Article 27, �803.

46/ "The Future of Adirondack Park," op. cit., at p. 25.

47/ Article 27, �804.

48/ Id., �805.

49/ Id., �806.

50/ Id., �805.

.@l/ Id.

52/ Id., �806.

53/ "Adirondack State Park Residents Await Development
Agency With Mixed Feelings," The New York Times,
August 24, 1971, at p. 33.'

54/ Article 27, �806.

@5/ Id., �807.

56/ Id.; "Adirondack State Park Residents Await Develop-
ment Agency With Mixed Feelings," The New York Times,
August 24, 1971, at p. 33.

57/ Interview with Richard Persico, Counsel, State Planning
office, Albany, New York, October 8, 1971.

581 "Adirondack State Park Residents Await Development
Agency With Mixed Feelings," The New York Times,
August 24, 1971, at p. 33.

59/ Id.

60/ Ch. 70, Title 7, Delaware Code (1971), �7001, et seq.

61/ Id., �7001.

.@2/ Id., �7003.

63/ Id., �7004.

- 311

64/ Id.

65/ Id., �7005.

66/ Id., �7006.

67/ Interview with Claude Peters, Staff Director, and
Gilbert Kruschwitz, Project Assistant, Colorado Land
Use Commission, Denver, July 7, 1971.

68/ "Checklist of Key Provisions for State Land Use
Planning Legislation," Council of State Governments,
Workshop in Denver, June 10, 1971.

69/ S.B. No. 91.

70/ Id.

71/ S.B. 92.

72/ S.B. 91.

73/ S.B. 92.

74/ S.B. 93.

75/ Interview with Claude Peters, July 7, 1971.

76/ Ch. 237, Laws of 1971 (Engrossed House Bill No. 865),
at �1.

77/ Id., �5.

78/ Id.

79/ Id., �7.

80/ Id., �6.

81/ Id., �8.

112/ Id., �10.

83/ Conference with Richard Slavin, Director, Department
of Planning and Community Affairs, State of Washington,
August 20, 1971.

.@4/ H.B. 220 am S, ch. 90, Session Laws of Alaska, �44.19.7.54.

452-329 0 - 72 - 21

- 312

85/ National News Report, Sierra Club, Vol. 3, No. 29,
August 6, 1971, at p. 2.

86/ Ch. 90, Session Laws of Alaska, �44.19.748.

87/ Id., �44.19.752. Emphasis added.

68/ Id., at �44.14.754.

89/ Id., at �44.19.755.

90/ National News Report, Sierra Club, Vol. 3, No. 29,
August 6, 1971, at p. 2.

91/ Ch. 1159, HB.705, Ratified Bill, 1971 Session,
General Assembly of North Carolina (Art. 21, Ch. 143,
Gene,ral Stdtutes of North Carolina).

92/ Id., �104B-16.

93/ Ch. 113-229, General Statutes of North Carolina, at
subsection (a) .

94/ Id., at subsection (e).

,95/ Ch. 113-230, General Statutes of North Carolina.

96/ HB. 2440, State of Rhode Island and Providence
Plantations, January, 1971 Session (Ch. 23, �42-23-1,
et seq-)--

97/ Id., at �46-23-6.

98/ Id.

99/ Public Act No. 695 (Connecticut) of 1969.

100/ Id.

101/ Public Act No. 138 (Connecticut) of 1971.

102/ HB. 285 (��768-73, Art. 66C, Annotated Code of Mary-
land (1967 Replacement Volume),) at �721.

103/ Id., �722.

L04/ Id., ��724, 726-727.

105/ HB. 212,Ga. Code Ann. ��45-136--45-147 (Supp. 1970),
�3.

313

L06/ Id., at �45-140(e).
107/ Id., at �45-139(a)(1); Cf. "Regulation and ownership
of the Marshlands: The Georgia Marshlands Act,"
5 GA. L. REV. 563 (1971).

.ZI

314

KEY ISSUES IN STATE LAND USE REGULATION

The administrators of all the programs covered
in this report are sailing uncharted waters. Each day
brings new problems that must be solved by the use of com-
mon sense interpretations of sketchy statutory guidelines.
It should be no surprise, therefore, to learn that although
the administrators find their work challenging and inter-
esting they also find themselves so occupied with immediate
tasks that they have little time to spend contemplating the
long range philosophy behind their work. Except in Hawaii,
where there is now some reexamination of basic goals, the
administrators are too busy to be reflective. If you ask
them, "What are the key issues?" they are likely to respond--
"finding time to review these 10 applications before mid-
night."

Given the youth of this legislation, and the
charged-up atmosphere in which it is administered, it is
not even easy for the outside observer to sit back and view
it from a broader perspective. But the following six issues
seem to recur throughout most of the states that have been
affected by the quiet revolution.

(1) Toward a New Concept of Land

If one were to pinpoint,any single predominant
cause of the quiet revolution it is a subtle but significant
change in our very concept of the term "land," a concept
that underlies our whole philosophy of land use regulation.
"Land" means something quite different to us now than it
meant to our grandfather's generation. Its new meaning is
hard to define with precision, but it is not hard to illus-
trate the direction of the change.

Basically, we are drawing away from the 19th
century idea that land's only function is to enable its
owner to make money. one example of this change in atti-
tude is that wetlands, which were once characterized as
Jouseless," are now thought of as having "value." As we
increasingly understand the science of ecology and the web
of connections between the use of any particular piece of
land and the impact on the environment as a whole we in-
creasingly see the need to protect wetlands and other areas
that were formerly ignored.

- 315

This concern over the interrelatedness of land
uses had led to a recognition of the need to deal with
entire ecological systems rather than small segments of
them. San Francisco Bay, Lake Tahoe, the Hackensack Mea-
dowlands, Adirondack Park are now all seen.as single enti-
ties rather than as a collection of governmental units.

The new attitude toward land can also be seen
reflected in the increasing concern about its scarcity.
14 Industries that in an earlier day seemed to have their
choice of an unlimited supply of land now see land as a
limiting factor. With some, such as the forest products
- industry, this recognition came early--with others, such as
6z, agriculture, it is just beginning in states like Hawaii and
California.

The economically productive users of land are
not the only ones who are increasingly recognizing its
scarcity. Wilderness buffs have recognized this for some
time. But now the large segment of Americans who just want
to live in the country, and who once seemed to have a wide
choice of location, now find their supply of land limited.
The jet plane, and particularly the interstate highway net-
work, have permitted millions of Americans to achieve their
goal of "country living" on either a permanent or temporary
basis, but they are finding that there isn't as much "country"
to live in as there used to be. Their annoyance is reflected
in the new legislation in Maine and Colorado.

The scarcity of land reflects both its increasing
use and the increasing limitations put on its use by local
governments. The problems of inner city dwellers seeking
adequate housing seem impossible to solve unless we can
overcome the scarcity of suburban land on which low and
moderate-income can be built. The Massachusetts Zoning
Appeals Act was passed-in recognition of this scarcity.

Conservationists describe the changing attitude
toward land by saying that land should be considered a
resource rather than a commodity. But while this correctly
indicates the direction of the change, it ignores the cru-
cial importance of our constitutional right to own land and
to buy and sell it freely. It is essential that land be
treated as both a resource and a commodity. The right to
move throughout the country and buy and sell land in the
process is an essential element in the mobility and flexi-
bility our society needs to adjust to the rapid changes of
our times. Conservationists who view land only as a re-
source are ignoring the social and economic impact that

316

would come with any massive restrictions on the free alien-
ability of land. But'land speculators who view land only as
a commodity are ignoring the growing public realization that
our finite supply of land can no longer be dealt with'in the
freewheeling ways of our frontier heritage.

The idea that land is a resource as well as a
commodity may appear self-evident, but in the context of
our traditions of land use regulation it is a highly novel
concept. Our existing systems of land use regulation were
created by dealers in real estate interested in maximizing
the value of land as a commodity. Subdivision regulations
which encouraged uniform lots fronting on public streets
enabled land to be divided into tradable units. Traditional
zoning ordinances with only a few use districts, each governed
by relatively nondiscretionary regulations, attempted to give
these lots some of the fungible qualities of corn futures or
stock certificates, making it possible to determine in ad-
vance the specific type of use permitted on the land and
providing quick shorthand labels for identifying various
categories of land. Bulk and yard regulations created an
envelope on each single lot which enabled the owner of that
lot to build without further consideration of the relation-
ship of his land to the land of his neighbors, thus assuring
potential buyers-of the land's usability. The highest goal
of the system was to enable barkers to sell Florida lots in
Grand Central Station.

The promoters of these land use regulations in the
1920's made no attempt to conserve land for particular pur-
poses or to direct it into a specific use, but only sought
to prevent land from being used in a manner that would de-
preciate the value of neighboring land. The traditional
answer to the question, "Why regulate land use?" was "to
maximize land values." To achieve this purpose they sought
to restrict those uses of land that adversely affected the
price of neighboring land by concentrating them in specific
parts of the city.

Where development would not harm property values
it went unregulated. Zoning permitted residential uses to
be built in the most polluted industrial districts on the
theory that any development which did not reduce the value
of the surrounding land should not be prohibited. Land use
regulation was limited to urban areas where the close proxi-
mity of land uses made it likely that the particular use
of one man's land might reduce the value of another's, but
there was no regulation of land outside urban areas where
such a reduction in value was not likely to take place.

- 317 -

In a dynamic and mobile society such as ours the
ability to buy and sell land readily is an essential ingre-
dient in the operation of the system, and the extent to
which zoning and subdivision control have been adopted
throughout the country testifies to the usefulness of these
original concepts. The last 20 years, however, has seen
increasing recognition that the purpose of land regulation
should go beyond the protection of the commodity value of
land. A realization is growing that important social and
environmental goals require more specific controls on the
use that may be made of scarce land resources.

This recognition is seen not only in the new state
role in land use regulation, but in the actions of many local
governments. Modern zoning ordinances typically rely less
and less on pre-stated regulations and require developers to
work with local administrative officials in designing a type
of development that fits more closely into the specific
circumstances of the surrounding neighborhood. Similarly,
regulations tend to encourage larger scale development in
which the various land uses are arranged and designed ac-
cording to a comprehensive plan for the specific site, as
opposed to the traditional lot-by-lot development under
which individual lots were sold to individual,purchasers
who might develop each lot according to pre-established
rules. More specialized use districts, which permit only
those uses appropriate to a specific geographic area rather
than some abstract category of uses such as M-1 or R-4, are
also evidence of local governments' growing attempt to
tailor land Use regulations to local needs.

Most importantly, perhaps, numerous systems of
local land use regulation are beginning to contain regula-
tions that recognize land as a resource as well a's a com-
modity. Exclusive agricultural and industrial zoning pre-
serves land as a resource for these important uses. Regu-
lations prohibiting topsoil removal or requiring common
open space find their justification in the protection of
land as a resource for recreation and beauty. Regulations
which require that a specified percentage of dwelling units
in each housing development be reserved for low-income
groups are recognizing the importance of land as an essen-
tial resource for housing all elements of our society.

Recent years have seen a rapid increase in local
zoning and subdivision regulation in relatively undeveloped
areas. Here the concern is not that the use of land might
injure immediate neighbors, but that it might impair the
possibility of more desirable long-range land use patterns.

318 -

Increasingly the question being asked is not only, "Will
this use reduce the value of surrounding land?" but "Will
this make the best use of our land resources?".

@The clearest evidence, however, that there has
been a change in the attitude toward why land should be
regulated is in the legislation described in this report.
The purposes sought to be achieved by the various bills
are'a far cry from the s,imple value-maximization concepts
of early real estate interests. Hawaii seeks to conserve
the land for agriculture and to preserve scenic beauty.
In Tahoe and San Francisco the goal is to preserve the
amenitids of the area. Maine and Vermont are trying to
protect the rural atmosphere of their states. Massachusetts
wants to preserve some suburban land as a resource for low
and moderate-income housing and to preserve wetlands as a
resource for wildlife and other ecological values. In the
Hackensack Meadows the goal of New Jersey is to utilize
this centrally'located land for the ideal combination of
development and conservation purposes.

But the recognition of new purposes for regulating
land should not and does not mean that the old concerns with
land's value and salability should be ignored. on the con-
trary, the longer-range view e:@pressed in the new land regu-
latory systems will enhance land values over the long run to
a far greater degree than systems motivated primarily by a
desire to increase immediate salability. The preservation
of the amenities of San Francisco Bay is of tremendous
economic value to all landowners in the Bay area. The
preservation of the quality of Maine's lakes and coastline
will be of great value to owners of.property in those areas,
not just today but for years to come. Today's broader view
of land values recognizes that in the long run land values
will reflect our ability to maintain a society in which
people will want to own land, and this is the overall goal
of the legislation now being enacted by the states.

(2). The Role of the State

Changes in a state's pattern of land use involve
thousands of individual decisions--to drill a well, to widen
a street, to build a power plant, to build a garage--the
new patterns that result are the sum of all of these deci-
sions, some major, others very minor. The state's goals
can be achieved if only the major decisions can be regu-
lated. one of the important issues in each state land
regulatory system is to separate the major decisions from

- 319

the minor so that state officials are not bogged down with
gas station applications when they should be considering
power plant sites, and so that irate homeowners do not have
to go to the state capital to get permission to build a
garage.

To succeed in solving this dilemma it is essential
to avoid the classic bureaucratic trap. Regulation is not
desirable for its own sake. Any system of land regulation
imposes substantial costs. These include not only the costs
borne by the taxpayers who pay the administrators' salaries
and expenses, but the costs borne by the developers and
eventually passed on to the consumer. Time is a particu-
larly important cost to most land developers because heavy
front-end expenses are usually paid with money borrowed at
relatively high interest rates, which makes each additional
day of delay a significant factor in increasing the cost.

The costs imposed on developers by land use regu-
lations have a peculiarly regressive nature. Developers of
expensive housing, for example, can much more easily absorb
the cost of regulation than developers of housing designed
for lower income groups. The cost of processing an applica-
tion to build a mobile home park and a luxury apartment
building may be approximately the same, but when considered
as a percentage of the consumers' cost per unit the costs
loom much larger to the mobile home buyer.

Regulation has other inherent disadvantages. Any
complex system of regulation has a natural tendency to re-
duce innovation. Minima become maxima. When regulators
approve one design it creates a powerful incentive for other
builders to use the same approach. The monotonous subdivi-
sion of the 1950's is being replaced by the monotonous
planned unit development of the 1970's.

For these reasons all of the states engaging in
land use regulation have used some method of concentrating
their energies on a limited number of important development
decisions to avoid diffusing the state regulatory power too
widely. A variety of methods are used: In the Twin Cities
regulation is concentrated on major capital improvements,
such as airports and sewers. Both Vermont and Maine have
attempted to define development subject to the state's
jurisdiction in a way that excludes small-scale development
and concentrates only on development of more significant
size. Hawaii classifies development into four basic cate-
gories and (in theory at least) the state attempts to de-
cide only the proper category applicable to a particular

320

piece of land, leaving the details to be worked out by the
counties.

The problem of isolating the"types or areas of
development that have a significant state or regional im-
pact does not seem headed for an easy solution. Further
experimentation x4ith the various methods now in 'use in the
states may discover increasingly better methods. But the
need is apparent for some method of concentrating state
efforts on major land use issues if the burdens of regula-
tion are not to exceed its benefits. Those who cry for
comprehensive regulation of all development by the state
merely show that they have not thought through the problem.

(3) The Role,of Local Government

Local regulation of land use has been in existence
for many years in at least the urbanized portions of most
states for many states. These local systems of zoning and
subdivision control-have proven quite adequate for controlling
many types of development, particularly small-scale develop-
ment in urban areas. At a time of increasing demands for
citizen participation and community control, the value of
encouraging local decision-making wherever possible is obvious.

A common failing of most of the new state land
regulatory systems is that they do not relate in a logical
manner to the continuing need for local participation.
Most of them tend to by-pass the existing system of local
regulation and set up completely independent and unrelated
systems. This requires the developer who is subject to
both systems to go through two separate and distinct ad-
ministrative processes, often doubling the time required
and substantially increasing the costs required to obtain
approval of the development proposal.

I
most states have chosen to create duplicating
procedures in order to eliminate the need to make any
change in existing zoning and other regulatory systems.
By leaving local zoning alone the state reduces the number
of potential enemies of new legislation. Moreover, in
many states the motives behind the state land regulatory
system were solely to prohibit development that would other-
wise occur. To persons having,this motive the duplication
does not seem to be a problem because duplication can only
operate to prevent and not to encourage development.

- 321

Not all of the states have accepted the idea of
duplication. The Massachusetts Zoning Appeals Act explicitly
rejects it; here the state system comes into play only as a
means of reversing a decision of a local board. The Hawaii
system also minimizes duplication; some of the major develop-
ment proposals require action by both state and county agen-
cies, but most ordinary development needs action by only one
or the other.

As the states move toward more balanced systems of
land use regulation that are not weighted exclusively toward
the prevention of development, it will be increasingly neces-
sary to merge both state and local regulations into a single
system with specific roles for both state and local govern-
ment in order to reduce the cost to the consumer and taxpayer
of duplicate regulatory mechanisms.

(4) Regulation and Planning

Once government recognizes that land can be a
resource to achieve many different goals, some method is
needed to balance these various goals to see which uses of
land will provide the greatest overall benefit. The opera-
tions of the Hawaiian Land Use Commission offer a good
example of this balancing process. The Commission is con-
stantly weighing the need for more housing against the need
for agricultural land--the need to protect the views of the
mountains against the need to attract jobs and tourists.

"Planning" can be defined as just this kind of
balancing process. The Hawaiian Land Use Commission is
engaged in "planning" although most of the Commissioners
do not think of themselves a's planners. Similarly, many of
the other agencies discussed in this report are determining
the best use of land by a planning process which measures
alternative uses against the overall goals and policies of
the state. In some cases these policies are clearly arti-
culated and the process is consciously perceived as "plan-
ning," while in others it is not.

In Maine, for example, the statutory direction
given 'to the Environmental Improvement Commission would also
appear to preclude much balancing of conflicting goals. The
statute directs the Board to insure maximum protection of
the environment and does not provide any process by which
countervailing development needs can be weighed. In prac-
tice, however, the Board utilizes a balancing process in
deciding how far to press its jurisdiction.

322

Other statutes more explicitly instruct the ad-
ministrator to consider a variety of goals. The Wisconsin
Shorelands Act,, although primarily oriented toward pro-
tecting the environmental values of the rivers and lakes,
does recognize the need for some types of development.
Similarly, the Massachusetts Zoning Appeals Act, although
primarily oriented toward making land available for housing
needs, also recognizes that it is important to protect
health and safety and preserve open space.

Other statutes involve more sophisticated planning
processes. In Vermont, although the present regulatory pro-
cess is oriented primarily toward protection of environmental
values, the planners are directed to prepare a plan that
takes into consideration both environmental and socio-e conomic
conditions. The Twin cities Regional Council uses a compre-
hensive planning approach as a basis for the decisions as-
signed to it. Similarly, the Tahoe Regional Planning Agency
and the Hackensack Meadowlands Development Commission are
taking into consideration a wide variety of factors in pre-
paring the plans on which their regulatory systems are based.

It seems clear that as state land regulatory
systems evolve they wil 1 increasingly spawn better planning
processes on which to base regulatory decisions. The Massa-
chusetts Wetlands Act, for example, does not ask its ad-
ministrators to balance the pros and cons of various uses
of the wetlands. The legislature has presumably done this
balancing itself and concluded that the goal of preserving
the wetlands outweighs all other possible goals. Conse-
quently, the administration of the Act can be said to in-
volve a minimum of planning. But as it increasingly be-
comes recognized that other values are involved, it seems 4_1
reasonable to assume that the state will institute a plan-
ning process that will take all values into consideration.

To see regulation as the predecessor of planning
is not wholly logical. But Americans have rarely looked
kindly on the idea of planning for its own sake, and have
paid attention to planning only when it immediately affects
decision-making. As a political matter probably the most
feasible method of moving towards a well-planned system of
state land use regulation is to begin with a regulatory
system that concentrates on a few goals that are generally
perceived as important, and then to gradually expand the
system by adding more comprehensive planning elements, as
is being done in Vermont. To insist that the planning pre-
cede the regulation is probably to sacrifice feasibility
on the altar of logic.

323

If the land regulatory systems are to be assisted
by competent land use planning it will require substantial
redirection of current state planning efforts in many states.
The Department of Housing and Urban Development has in-
creasingly been directing the state's attention towards
the management of state government programs, with the result
that many states have been drifting away from the more com-
-prehensive approach toward land useplanning that was char-
acteristic of the states in the 1930's. There is no reason
why land use planning is inconsistent with budgetary and .
management planning, and -if the state planning agencies are
to perform a meaningful role in land use regulation, they
must reassert their intere.st in comprehensive planning for
land use. Unless the state planners divert at least a share
of their attention toward land use issues they may find that
other.more specialized agencies will have taken over, and
the opportunity for a comprehensive approach will have been
lost.

(5) Constitutional Limits on Regulation

one of the most important@issues in any land regu-
latory system is the extent to which the use of land may be
restricted without Violating constitutional rights. Almost
every state and local government that is trying to implement
an environmentally-oriented land regulatory system finds . ..
itself plagued with cohstitutional doubts.@ The constitut ion
prohibits the "taking" of property without payment of just
compensation. Judicial interpretations of this clause, have
held that the regulation of property in a manner to severely
limit its use may in some cases be interpreted as such a
taking. These cases pose a constant problem to land use
regulators.

-Most land regulatory systems find@a need,to pre-
vent all "use" of at least some portion of the land within
their jurisdiction. Funds are not usually available to pay
the owners of this land for the loss in speculative value to
which they migh*t claim to be entitled. The administrators
therefore find themselves in the difficult position of either
permitting uses that would be environmentally harmful or
facing court challenges that may' endanger the entire regula-
tory program.

This dilemma posed by the "taking" issue requires -
a creative legal response on the part of the regulatory agen-
cies and their attorneys. A.number of approaches are pro-,
mising:

- 324

First, if one really studies the cases the law on
this subject has by no means been as bad as most people seem
to assume. The Supreme Court of the United States has fre-
quently upheld regulatory systems that prevent any develop-
ment of a man's land if the regulation is essential to promote'
the public health or safety, and the preservation of a livable
environment and a desirable ecological balance is in the long
run clearly essential to the health of the nation. "Brandeis
briefs" and expert ecological testimony, when combined with
a sophisticated analysis of existing case law, can provide
sound constitutional arguments for the validity of many regu-
latory measures that might otherwise be thought so restric-
tive as to require compensation.

Second, draftsmen of regulations need to make a
careful analysis of the types of activities that may be al-
lowed to take place on land without destroying environmental
values. Too often regulations have taken the form of blanket
prohibitions when a variety of\.acti*vities could be permitted
on the land without detracting from the values that the regu-
lations are designed to protect.

Third, further exploration is needed to provide
a sound legal rationale for setting off benefits created
by the regulatory program against the losses caused by
restrictions. A regulatory program that prohibits the filling
of low-lying land in a flood plain, for example, may reduce
the value of the portion of a man's.land on which filling is
prohibited, but it may substantially increase the value of
the higher land by reducing the threat of flooding. Mechan-
isms by which these benefits can be set off against any
losses can be very helpful in reducing the necessity of
paying@compensation.

Fourth, where compensation must be paid, new legal
methods of relating the amount of compensation more exactly
to the los.ses suffered should be devised. The ' government
should not be forced to purchase the entire land if some
lesser remedy provides equitable compensation. Compensation
through the purchase of development rights, a.year-to-year-
interest or some type of easement should be considered.

This report is not the place to discuss in detail,
the many ramifications of the constitutional issue, and the
many interesting approaches to it being undertaken around
the country. Those who create systems cf-land regulation
based on modern ecological knowledge should be aware of the.
constitutional issue, but should not be so afraid of it that
they ignore the approaches that are available for working
creatively within the constitutional limits.

325

(6) Choice of State Agency

The selection of the proper agency to exercise
the state's role in land use regulation has not followed
any uniform pattern. Three alternatives seem to be found
in the existing legislation: line agencies of state govern-
ment, independent state commissions, and state-created re-
gional commissions.

Line agencies have been used primarily for systems
of regulation that focus on a single purpose or a small num-
ber of purposes. Thus, both the Massachusetts Zoning Ap-
peals Act, the Wisconsin Shoreland Protection program, and
most wetlands acts are administered by line agencies. All
of these programs have relatively specific goals that fall
within the purview of an existing agency.

Where more comprehensive statewide land use regu-
lation has been tried, independent state commissions have
been chosen. Hawaii, Vermont and Maine have all used this
model, and public attitudes in the three states would all
seem to favor continuation of independent commissions for
statewide land use regulation--existing state agencies are
all thought to be too biased towards the exist 'ing programs
they administer to do a fair job in balancing the full
range of policies that go into these decisions. But inde-
pendent commissions contribute to the fragmentation of
executive authority at the state level.

The ideal approach from a textbook standpoint
would be a new line agency directly under the governor,
but in some states centralization of power in the governor
is not popular. State planning agencies might serve a regu-
latory function, but in many states these agencies have paid
little'attention to land use matters.

Where the regulation is concentrated in a specific
geographical area of the state, the states have generally
chosen to set up independent commissions having a regional
orientation. In some cases members of the commission are
appointed by the governor. In other cases the local govern-
ments in the region.exercise direct or indirect control in
the selection of members of the commission. Some of the re-
gional agencies have proven quite successful, but participa-
tion by the local governments in the selection of members
seems likely to produce a strong pro-development bias be-
cause of the dependence of local governments on new develop-
ment to produce tax revenues.

- 326

Selection of the appropriate agency to represent
state or regional interests will undoubtedly vary with the
specific conditions in each state at each particular time.
Hopefully, the inter-agency bickering that accompanies so
many programs of an interdisciplinary nature can be minimized.

- 327

POSTSCRIPT: FUTURE DIRECTIONS

The great advantage of our federal system is that
it facilitates experimentation. New state laws need not
follow a single pattern but can search out many avenues
for solutions.

To those seeking to decide what directions their
state should take, assistance is promised by the various
land use policy bills now pending before Congress. But
these bills will provide only funds and basic guidelines,
not detailed prescriptions.

organizations such as the Council of State Govern-
ments and the American Society of Planning officials are
assembling resources to assist their.members in finding
creative new solutions for land use regulation. A study
by Richard RuBino for the Council of State Governments,
currently in preparation, will explore "The Emerging Role
of States in Land Resource Management."

Also in process is a Model Land Development Code
being prepared by the American Law Institute. Intended not
as a uniform law but as a guide to the issues, the complete
code is not likely to be ready u.ntil 1974, but tentative
drafts of portions of it are available from the Institute
at 4025 Chestnut Street, Philadelphia, Pennsylvania 19104.

But none of this assistance can replace good hard
work at the state level--analyzing the issues and forging
creative approaches. The reform of our land regulatory
systems is a fascinating challenge that will continue to
occupy us for many years to come.

452 -329 0 - 72 - 22

APPENDICES

TBE PRESIDENT'S PROPOSED
NATIONAL LAND USE POLICY ACT OF 1971
(S. 992, H.R. 4332 in the 92d Congress)

A BILL

To establish a national land use policy; to
authorize the Secretary of the Interior to make grants
14
to encourage and assist the States to prepare and
implement land use programs for the protection of areas
of critical environmental concern and the control and
direction of growth and development of more than local
significance; and for other purposes.
Be it enacted by the Senate and House of Repre-
sentatives of the United States in Congress assembled,
That this Act may be cited as the "National Land Use
Policy Act of 1971."
FINDINGS AND DECLARATION OF POLICY
Section 101. (a) The Congress hereby finds
and declares that decisions about the use of land
significantly influence the quality of the environment,
and that present State and local institutional arrangements
for planning and regulating land use of more than local
impact are inadequate, with the result:,
(1) that important ecological, cultural,
historic and aesthetic values in areas of critical
environmental concern which are essential to the well-being
of all citizens are being irretrievably damaged or lost;
(2) that coastal zones and estuaries,
flood plains, shorelands and other lands near or under major
bodies or courses of water which possess special natural
and scenic characteristics are being damaged by ill-planned
development that threaten these values;
(3) that key facilities such as major
airports, highway interchanges, and recreational facilities
are inducing disorderly development and urbanization of
more than local impact;
(4) that the implementation of standards
for the control of air, water, noise and other pollution
is impeded;

-2-

(5) that the selection and development of
sites for essential private development of regional benefit
has been delayed or prevented;
(6) that the usefulness of Federal or
federally-assisted projects and the administration of
Federal programsare being impaired;
(7) that large-scale development,often
creates a significant adverse impact upon the environment.
(b) The Congress further finds and declares
that there is a national interest in encouraging the
States to exercise their full authority over the-planning
and regulations of non-Federal lands by assisting the States,
in cooperation with local governments, in developing land
use programs including unified authorities, policies, criteria,
standards, methods and processes for dealing with land use
decisions of more than local significance.
DEFINITIONS
Section 102. For purposes of this Act: (a)
"Areas of critical environmental concern" are areas where
uncontrolled development could result in irreversible damage
to important historic, cultural, or aesthetic values, or
natural systems or processes, which are of more than local
significance; or life and safety as a result of natural
hazards of more than local significance. Such areas shall
include:
(1) Coastal zones and estuaries: "Coastal
zones" means the land, waters, and lands beneath the waters
in close promixity to the coastline (including the Great
Lakes) and strongly influenced by each other, and which extend
seaward to the outer limit of the United States territorial
sea and include areas influenced or affected by water from an
estuary such as, but not limited to, salt marshes, coastal and
intertidal areas, sounds, embayments, harbors, lagoons, inshore
watersi channels, and all other coastal wetlands. "Estuary"
means the part of the mouth of a river or stream or other body
of water having unimpaired natural connection with the open
sea and within which the sea water is measurably diluted with
fresh water derived from land drainage.

(2) shorelands and flood plains of rivers,
lakes, and streams of State importance;
(3) rare or valuable ecosystems;
(4) scenic or historic areas; and
(5) such additional areas of similar
valuable or hazardous characteristics which a State determines
to be of critical environmental concern.
(b) "Key facilities" are public facilities which
tend to induce development and urbanization of more than
local impact and include the following:
(1) any major airport that is used or is
designed to be used for instrument landings;
(2) interchanges between the Interstate
Highway System and frontage access streets or highways; major
interchanges between other limited access highways and frontage
access streets or highways; and
(3) major recreational lands and facilities.
(c) "Development and land use of regional benefit"
includes land use and private development for which there is
a demonstrable need affecting the interests of constituents
of more than one local government which outweighs the benefits
of any applicable restrictive or exclusionary local regulations.
(d) "State" includes the 50 States of the United
States, the Commonwealth,of Puerto Rico, Guam, American Samoa,
and the Virgin Islands.
PROGRAM DEVELOPMENT GRANTS
Section 103. (a) The Secretary of the Interior
(hereinafte3z referred to as the "Secretary") is authorized to
make not more than two annual grants to each State to assist
that State in developing a land use program meeting the require-
ments set forth in section 104 of this Act. Such grants shall
not exceed 50 percent of the costs of program development.
Prior to making the first grant, the Secretary shall be satisfied
that such grant will be used in development of a land use
program meeting the requirements set forth in section 104.
Prior to making a second grant, the Secretary shall be satisfied
that the State is adequately and expeditiously proceeding with
the development of a land use program meeting the requirements
of section 104.

-4-

(b) States receiving grants pursuant to this
section shall submit to the Secretary not later than 1 year
after the date of award of the grant a report on work com-
pleted toward.the development of a State land use program.
A State land use program meeting the requirements of section
104 of this Act shall satisfy the requirements for such a
report.
(c) The authority to make grants under this
section expires three years from date of enactment.
PROGRAM MANAGEMENT GRANTS
Section 104. Following his review of a State's
land use program, the Secretary is authorized to make a
grant to that State to assist it in managing the State land
use program. Successive grants.for this purpose may be made
annually to any State resubmitting its land use program for
review by the Secretary. Grants made pursuant to this section
shall not exceed 50 percent of the cost of managing the land
use program. Grants authorized by this section shall be made
by the Secretary only if, in his judgment:_
(a) the State's land use program includes:
(1) a method for inventorying and desig-
nating areas of critical environmental concern;
(2) a method for inventorying and desig-
nating areas impacted by key facilities;
(3) a method for exercising State control
over the use of land within areas of critical environmental
concern and areas impacted by key facilities;
(4) a method for assuring that local regula-
tions do not restrict or exclude development and land use of
regional benefit;
(5) a policy for influencing the location of
new communities and a method for assuring appropriate controls
over the use of land around new communities;
- (6) a method for controlling proposed
large-scale development of more than local significance in
its impact upon the environment;
(7) a system of controls and regulations
pertaining to areas and developmental activities previously
listed in this subsection which are designed to assure that
any source of air, water, noise or other pollution will not
be located where it would result in a violation of any
applicable air, water, noise or other pollution standard or
implementation plan;

-5-

(8) a method for periodically revising
and updating the State land use program to meet changing
conditions; and
(9) a detailed schedule for implementing
all aspects of the program.
For purposes of complying with paragraphs (l)-
(7) of this subsection (a), any one or a combination of the
following general techniques is acceptable: (i) State
establishment of criteria and standards subject to judicial
review and judicial enforcement of local implementation and
compliance; (ii) direct State land use planning and regula-
.F_ tion; (iii) State administrative review of local land use
plans, regulations and implementation with full powers to
approve or disapprove.
(b) in designating areas of critical environmental
concern, the State has not excluded any areas of critical
environmental concern to the Nation.
(c) in controlling land use in areas of critical
environmental concern to the Nation, the State has procedures
to prevent action (and, in the case of successive grants, the
State has not acted) in substantial disregard for the purposes,
policies and requirements of its land use program.
(d) State laws, regulations and criteria affecting
areas and developmental activities listed in subsection (a)
of this section are in accordance with the policy, purpose,
and requirements of this Act; and that State laws, regulations
and criteria affecting land use in the coastal zone and estuaries
further take into account:
(1) the aesthetic and ecological values of
wetlands for wildlife habitat, food production sources for
aquatic life, recreation; sedimentation control, and shoreland
storm protection; and
(2) the susceptibility of wetlands to
permanent destruction through draining, dredging, and filling,
and the need to restrict such activities.
(e) the State is organized to implement its State
land use program.
M the State land use program has been reviewed
and approved by the Governor.

-6-

(g) the Governor has appropriate arrangements
for administering the land use program management grant.
(h) the State, in the development, revision, and
implementation of its land use program, has provided for
adequate dissemination of information and for adequate public
notice and public hearings.
(i) the State has: (1) coordinated with metropolitan-
wide plans existing on January 1 of the year in which the State land
use program is submitted to the Secretary, which plans have
been developed by an areawide agency designated pursuant to
regulations established under Section 204 of the Demonstration
Cities and Metropolitan Development Act of 1966;
(2) coordinated with appropriate neighbor-
ing States with respect to lands and waters in interstate
areas;
(3) taken into account the plans and
programs of other State agencies and of Federal and local
governments.
(j) the State utilizes for the purpose of furnish-
ing advice to the Federal Government as to whether Federal
and federally- assisted projects are consistent with the State
land use program, procedures established pursuant to Section 204
of the Demonstration Cities and Metropolitan Development Act
of 1966 and Title IV of the Intergovernmental Cooperation Act
of 1968.
FEDERAL REVIEW OF GRANT APPLICATIONS AND STATE
LAND USE PROGRAMS
Section 105. (a) The Secretary before making a pro-
gram management grant pursuant to section 104, shall consult
with the heads of all Federal agencies which conduct or
participate in construction, development or assistance programs
significantly affecting land use in the State, and shall consider
their views and recommendations. The Secretary shall not approve
a grant pursuant to section 104 until he has ascertained that
the Secretary of Housing and Urban Development is,satisfied
with those aspects of the State's land use program dealing with
large-scale development, key facilities, development and land
use of regional benefit, and new communities meet the require-
ments of section 104 for funding of a program management grant.

-7-

(b) The Secretary shall take final action on a
State's application for a grant authorized under section
104 not later than six months following receipt for review
of the State's land use program.
CONSISTENCY OF FEDERAL ACTIONS WITH STATE LAND
USE PROGRAMS
Section 106. (a) Federal projects and activities
significantly affecting land use shall be consistent with
State land use programs funded under section 104 of this
Act except in cases of overriding national interest. Program
coverage and procedures provided for in regulations issued
pursuant to section 204 of the Demonstration Cities and
Metropolitan Development Act of 1966 and Title IV of the
Intergovernmental Cooperation Act of 1968 shall be applied
in determining whether Federal projects and activitie@s are
consistent with State land use programs funded under section
104 of this Act.
(b) After December 31, 1974, or the date the
Secretary approves a grant under section 104, whichever is
earlier, Federal agencies submitting statements required by
Section 102(2)(C) of the National Environmental Policy Act
shall include a detailed statement by the responsible official
on the relationship of proposed actions to any applicable
State land use program which has been found eligible for a
grant pursuant to section 104 of this Act.
FEDERAL ACTION IN THE ABSENCE OF STATE LAND USE PROGRAMS
Section 107. Where any major Federal action
significantly affecting the use of non-Federal lands is
-4 proposed after December 31, 1974, in a State which has not
been found eligible for a program management grant pursuant
to section 104 of this Act, the responsible Federal agency
shall hold a public hearing in,that State at least 180 days in
advance of the,proposed action concerning the effects of the
action on land use taking into account the relevant considera-
tion set out in section 104 of this Act, and shall make findings
which shall be submitted for review and comment by the Secretary,
and where appropriate, by the Secretary of Housing and Urban
Development. Such findings of the responsible Federal agency
and comments of the Secretary or the Secretary of Housing and
Urban Development shall be part of the detailed statement
required by Section 102(2)(C) of the National Environmental
Policy Act (42 U.S.C. 4321 et seq._). This section shall be
subject to exception where the President determines that the
interests of the United States so requires.

AVAILABILITY OF FEDERAL EXPERTISE
Section 108. (a) The Secretary shall provide
advice upon request to States concerning the designation
of areas of critical environmental concern to the Nation.
(b) Federal agencies with data or expertise relative
to land use and conservation shall take appropriate measures;
subject to appropriate arrangements for payment or reimburse-
ment, to make such data or expertise available to States for
use in preparation, implementation, and revision of State land
use programs.
GUIDELINES
Section 109. The President is authorized to
designate an agency or agencies to issue guidelines to the
Federal agencies to assist them in carrying out the require-
ments of this Act.

ALLOCATION OF FUNDS
Section 110. (a) Funds for grants authorized by
sections 103 and 104 of this Act shall be allocated to the
States based on regulations issued by the Secretary which
shall take into account State population.and growth;
nature and extent of coastal zones and estuaries and other
areas of critical environmental concern and other relevant
factors.
(b) No grant funds shall be used to acquire real
property.
(c) A refusal by the Secretary to provide a
program development or program management grant authorized
by this Act shall be in writing.
MISCELLANEOUS
Section 111. (a) The Secretary shall develop,
after appropriate consultation with other interested parties,
both Federal and non-Federal, such rules and regulations
covering the submission and review of applications for grants
authorized by sections 103 and 104 as may be necessary to
carry out the provisions of this Act.
(b) A State receiving a grant under the provisions
of section 103 or 104 of this Act, the agency designated
by the Governor to administer such grant, and State agencies
allocated a portion of a grant shall make reports and evalua-
tions in such form, at such times, and containing such infor-

-9-

mation concerning the status and application of Federal funds
and the operation of the approved management program as the
Secretary may require, and shall keep and make available such
records as may be required by the Secretary for the verifica-
tion of such reports and evaluations.
(c) The Secretary, and the Comptroller General
of the United States, or any of their duly authorized repre-
sentatives, shall have access, for purposes of audit and
examination, to any books, documents, papers, and records
of a grant recipient that are pertinent to the grant received
under the provisions of section 103 or 104 of this Act.
(d) Nothing herein shall be interpreted to extend
the territorial jurisdiction of any State.
(e) Nothing herein shall be construed to imply
Federal consent to or approval of any State or local actions
which may be required or prohibited by other Federal statutes
or regulations.
APPROPRIATION AUTHORIZATION
Section 112. (a) There are hereby authorized to
be appropriated not to exceed $20,000,000 in each fiscal
year, 1972 through 1976, for grants authorized by sections
103 and 104 of this Act, such funds to be available until
expended.
(b) There are hereby authorized to be appropriated
such sums as may be necessary for the Secretary of the Interior
and the Secretary of Housing and Urban Development to administer
the program established by this Act.

_10-

SECTION-BY-SECTION ANALYSIS

The proposed bill would establish a National
Land Use Policy to encourage the States to plan and regulate
land use in certain critical areas.

Section 101 - declares Congressional findings
that present State and local institutional arrangements for
planning and regulating land use are inadequate and have
resulted in haphazard land development and the loss of
important environmental values. It is in the national interest
to encourage and assist the States in strengthening the
institutional framework for planning and controlling the use
of non-Federal lands.

Section 102 - contains definitions. "Areas of
critical environmental concern" are areas where uncontrolled
development could result in irreversible damage to important
values. Such areas include coastal zones and estuaries and
other similar areas. "Key facilities" are public facilities
which tend to induce development of more than local impact,
such as airports and highway interchanges. "Development and
land use of regional benefit", means private development,
the regional need for which outweighs a local conflicting
interest.

Section 103 - authorizes the Secretary of the
Interior to make two successive annual grants of up to 50%
of the cost to States of developing a land use program.
@Prior to receiving the second grant, the State must submit
a report of its progress in developing a program.

Section 104 - authorizes the Secretary to make
grants of up to 50% of the cost to States of managing their
land use program. Such grants will be made only if the
State program, in the Secretary's judgment, meets certain-
specified criteria. It must include methods for inventorying,
designating and exercising State control over areas of critical
environmental concern and areas impacted by key facilities,
a method for assuring that local regulations.do not restrict
land use and private development of regional benefit, a policy
for influencing the location of new communities, a method for
controlling the use of land around new communities, a method
for controlling proposed large-scale development of more than
local impact on the environment and a detailed schedule for
implementing all aspects of the program. The program must
not exclude areas of critical environmental concern to the
Nation and must take into account the unique values and fragile
nature of coastal zones and estuaries, particularly coastal
wetlands. The program must also meet certain other organiza-
tional and procedural requirements.

Section 105 - requires the Secretary to consult
with Federal agencies with activities or programs affecting
land use before making a program management grant. The
Secretary shall not approve such a grant unless the Secretary
of Housing and Urban Deyelopment is satisfied that those
aspects of the State land use program dealing with large-scale
development and key facilities, development and land use.of
regional benefit, and new communities meet the requirements,
of section 10.4. The Se.cretary shall act on a program manage-
ment grantapplication within 6 months after receipt of the
State's land use program.

Section 106. - establishes a requirement for
consistency of Federal projects and activities with State land
use programs. It also requires that Federal agencies submitting
environmental statements pursuant to the National Environmental
Policy Act include a detailed statement of the relationship of
the proposed Federal action to any applicable State land use
program which has been found eligible for a management grant.

-12-

Section 107 - requires that where a State has
not been found eligible for a management grant, any major
Federal action significantly affecting the use of non-Federal
lands proposed after December 31, 1974, must be preceded by
a public hearing at least 180 days before the proposed action,
followed by detailed findings upon which the Secretaries of
the Interior or Housing and Urban Development will be allowed
to comment, unless the President determines that the interests
of the United States are to the contrary.

Section 108 - authorizes the Secretary to provide
advice upon request to States about areas of critical environ-
mental concern to the Nation and directs Federal agencies to
share pertinent expertise with the States.

Section 109 - authorizes the President to
designate an agency to issue guidelines-,to assist Federal
agencies carrying out the responsibilities under the Act.

I Section 110 - authorizes the Secretary to allocate
grant funds to the States on the basis of State population
and growth, extent of coastal areas and areas of critical
environmental concern and other relevant factors. No grant
funds shall be used by the State to acquire real property.

Section 111 - authorizes the Secretary to develop,
in consultation with other interested parties, rules and
regulations covering the submission and review of grant
applicationsand to require reports concerning the status
and operation of the program. It requires that certain records
be kept and authorizes the Secretary and the Comptroller
General to audit and examine such records. It further provides
that nothing in this Act shall extend State territorial juris-
diction or be construed to conflict with other Federal statutes
or regulations.

-13-

Section 112 - authorizes the appropriation of
$20 million in each,fiscal year 1972 through 1976 for grants
to States. It further authorizes the appropriation of such
sums as necessary for the Departments of Interior and Housing
and Urban Development to administer the program.

452 -329 0 - 72 23

The Hawaiian Land use Law of 1963

Hawaii Rev. Stat. Ch. 205 (1968),
as amended (Supp. 1969).
CHAPTER 205. cessory to the above activities including but not limited to living quarters or
dwellings, mills,storage facilities. processing facilities,and roadside stands for,
LAND USE COMMISSION the sale of products grown on the premisrs;and open area recreational facili-
ties.
205-1 Estblishment of the commission. There shall be a state These districts may include areas which are not used for or which are not
land use commission. hereinafter called the commission. The commis- suited to,agriCUltUral and ancillary activities by reason of -topography, soils. and
sion shall consist of. seven members who shall hold no other public other related characteristics.
office and shall be appointed in the manner and serve for the term set Conservation districts shall include areas necessary for protecting water-
sheds and water sources: preserving scenic and historic areas; providing park
forth in section 26-34. One member shall be appointed from each of
the senatorial districts and one shall be appointed at large. I-lie chair- lands, wilderness, and beach: conserving endemic plants, fish anti wildlife; pre-
venting floods anti soil erosion; forestry;. open space areas whose. existing. open-
man of the board of land and natural resources anti the director of the
ness, natural conditon, or present state of use, if retained, would the
department of planning and economic development shall serve as ex present or potential value of abutting or surrounding communities or would
officio voting members. The commission shal elect its chairman from maintain* 'or enhance the conservation of natural or scenic resources; areas
one,of its appointed members. -I he members shall receive no compen- value for recreational purposes; arid other related activities:and other premitted
sation.for their services on the commission,but shall be reimbursed for uses not detrimental to a multiple use conservation concept. [L1963 c 205, pt of
actual expenses incurred in the performance of their duties, �2; Supp,�98H-2; HRS �205-2; am L 1969, c 182, �5]
The commission shall be a part of the department of planning and
economic development for admininistration purposes as provided for in

section 26-35. S205-3 Adoption of district boundaries. The land use commission
The commission may engage* employees necessary to perform its shall prepare district classification maps not later than Januarv 1., 1964
duties, including administrative personnel and one or more field officers. showing all the proposed boundaries of conservation. agricultural, rural,
One field officer shall be named as the executive officer of the commis- and urban districts.At least one public hearing shall be held in each
sion. Field officers shall be persons qualified in land use analysis. De- county prior to the final adoption or the district. boundaries for, that
partments of the state government shall make available to the commis- county. Notice of the time and place of the hearing shall be published
sion such data. facilities. and personnel as :are necessary for it to per- in the same manner as notices required for public hearings by 'the plan-
form its technical duties. The commission mav receive and-utilize gifts ning commission of the appropriate county. If there is no planning
and any funds from the federal or other governmental agencies. It shall commission, then the notice shall be published at least 'twenty days
adopt rules guiding its conduct. maintain a record of its activities,ac- prior to the hearing in a newspaper of general circulation within the
complishments. and recommendations to the governor and to the legis- county. The notice shall indicate the time and place that the maps
lature through the governor. [L 1963. c 205, pt of �2,Supp, �98H-1] showing the proposed district boundaries within the county may be
inspected prior to the hearing.
At the hearing, interested owners. lessees, officials. agencies, and
�205-2 Districting, arid classification of lands. There shall be four major individuals may appear and be heard. They shall further be allowed at,
land use districts in which all lands in the State shall be placed: urban, rural, least fifteen days following the. final. public' hearing held in the county. agricultural, and conservation. The land use comission shall group contiguous to file with the commission a written protest or other. comments. -or.
land areas suitable for inclusion in one of these. four major districts. The com- recommendations. The district boundaries within a county shall be
mission shall set standards for determining the boundaries of each district, pro-, adopted in final form within a period of. not more than ninety days and
vidcd that:
(I)- In the establishment of boundaries of urban district those' lands that not less than forty-five days from the time of. the last hcaring in-the
are now in urban use and a sufficient reserve area for foresceable county; provided that,district boundaries for all counties shall be
urban growth shall be included- adopted in final form no sooner than May, 1. 1964 nor later than, Julv
(2) In the establishment of boundaries for rural districts, areas of land 1, 1964.The county concerned shall be furnished with copies of any.
composed. primarily of small farms mixed with verv low density resi- written protest. comment. or recommendation.. The commission
dential lots, which may be shown by a minimum density of not more prepare and. furnish each county with copies of classification maps for
than one house per one-half acre and a minimum lot size of not. less that county, showing the district boundaries; adopted in final, form.[L
than one-half acre shall be included-, 1963, c 205, pt of �2: Supp, �98H-3
(3) In the establishment.of the boundaries or agricultural. districts the
greatest possible protection shall be given tor those; lands with a. high �205-4 Amendments to district, boundaries. Any, department or,
capacity for intensive cultivation; and
agency of the State or county or any property owner or lessee' may,
(4) In the establishment of the boundaries of conservation districts, the petition the land use commission, for a change in. the boundary, of any
"forest and water reserve zones" provided in section 183-41 are re-
district.Within five days of, receipt the commission shall forward a
named "conservation districts" and. effective as of July 11. 1961 the copy of the petition to the planning commission of the countv, wherein
boundaries of the forest and water reserve zones theretofore estab-
fished Pursuant to section 183:41, shall constitute the boundaries of the, land is. located. Within forty-five days after recipt of the petiton
by the county the
the conservation districts: provided that thereafter the power to deter- county pLanning commission shall forward the, peti
mine the boundaries of the conservation districts shall be in the com- tion. together with its comments and recommendations to the CoMMiS-,
mission. sion. Upon written -request, by, the county, planning commission, the,
In establishing the bOUndaries of the districts in each county. the commis- commission may grant ran extension of not more than fifteen, davs farm_
sion shall give consideration to the master plan or general plan of the county. the receipt of any comments arid recommendations. The commission
Urban districts. shall include activities or uses.as provided by ordinances or may also initiate changes in a district boundary which shall be submit
regulations of the county within which the urban district is situated. ed to the, appropriate county, planning agency for comments and. rec
Rural districts shall include activities or uses provided by low den- omendations in the same manner as any other request for a bound-,
sity residential lots of not more than one dwelling house per one half acrein ary change.
areas where "city-like" concentration of people structures, streets, and urban
After sixty days but within one hundred and twenty d ays of the;
level of services are absent and where small farms are intermixed with the low

original receipt of a petition the commission shall advertise a public
density residential lots. These districts may include contiguous areas which are hearing to be held on the appropriate island in accordance with the
not suited to low densiv residential lots or small farms by' reason of topography,
requirements of section 205-3. The commission shall 'notify the persons
soils, and other related characteristics.
and agencies that may have an interest in the subject matter of the
Agricultural districts shall include activities or uses as characterized by the time and place of the hearing. Within a period of not more than ninety
cultivation or crops, orchards, forage and forestry; farming activities or uses re- days and not less than forty-five days after the hearing. the commission
lated to animal husbandry, and game and fish propagation; services and uses ac- shall act upon the petition for change. The commission may approve

the change with six affirmative votes. No change shall be approved 1205-7 Adoption of regulations. The land use commission shall
unless the petitioner has submitted. proof that the area is needed for a prepare regulations relating to matters within its jurisdiction. At least
use other than that for which the district in which it is situated is clas- one public hearing shall be held in each county-in the manner provided
sified, and either of the following requirements has been fulfilled: in section 205-3 prior to the final adoption of its regulations. The final
(1) The petitioner has submitted proof that the land is usable and regulations for the State shall be adopted within a period of not more
adaptable for the use it is proposed to he classified, or than ninety and not less than forty-five days from the time of the final
(2) Conditions and trends of development have so changed since hearing in the State provided that its regulations shall be adopted not
the adoption of the present classification, that the proposed later than July 1. 1964. IL 1963, c 205. pt of �2; Supp, �98H-71
classification is reasonable.. (L 1963, c 205, pt of �2; am L Cross References
1965, c 32, �2; Supp, �98 H -41
Administrative procedure. see chapter 91.
�205-5 Zoning. 4a) Except as herein provided, the powers granted to �205-9 Nonconforming uses. The lawful use of land or buildings
counties under section 46-4 shall govern the zoning within the districts, other existing on the date of establishment of any interim agricultural district
than in conservation districts. Conservation districts shall be governed by the and rural district in final form may be continued although the use. in-
department of land and natural resources pursuant to section 183-41. cluding lot size, does not conform to this chapter; provided that no
(b) Within agricultural districts, uses compatible to the activities de- nonconforming building shall be replaced. reconstructed. or enlarged or
scribed in section 204;-2 as determined by the land use conimission shall be per- changed to another nonconforming use and no nonconforming use of
mittcd. Other uses may be allowed by ipccial permits issued vursuant to this land shall be expanded or changed to another nonconforming use. In
chapter. The mininium lot size in agricultural districts shall be determined by
each county through its zonino ordinance, subdivision ordinance or other lawful addition, if any nonconforming use of land or building is discontinued
means, provided that in no event shall the minimum lot size for any agricultural pr held in abevance for a period of one year. the further continuation
use be less than one acre. of such use s .hall be prohibited. (L 1963, c 205, pt of �2; Supp.
(c) Unless authorized by special permit issued Pursuant to this chapter, �98H-8i
only the following uses shall bs: permitted within rural districts:
(1) Low density residential uses;
(2) Agricultural usesz and �205-9 Amendments to regulations. By the -same methods set forth
(3) Public, quasi-public, and public utility facilities. in section 205-4. a petition may be submitted to change. or the land
In addition, the minimurn lot size for any low density residential use shall use commission may initiate a change in its regulations. No changes
be onc-hair acre and there shall be but one dwelling house pcrone-half acre. (L shall, however, be made. unless a hearing or licarines are held in each
J963, c 205. pt of �2; SLLOP, �9SH-5. KRS �205-5; am L 1969, c 232, �11 of the counties. Within not less titan forty-five and not more than nine-
ty days after the last of the hearings. the commission shall act to
�20.9-6 Special permit. The county planning commission and the zon- approve or deny the requested change in regulations. The petition for a
ing board of appeals of the city and county of Honolulu may permit certain change shall be based upon proof submitted that conditions exist that
unusual and reasonable uses within agricultural and rurai districts other were not present when the regulation was adopted or that the rcgula-
than those for which the district is classified. Any person .%!ho desires to use tion does not serve the purposes of this chapter. tL 1963. c 205. pt of
his land within an agricultural or rural district other than for an agricultural �2; Supp. �98H-9]
or rural use. as the case may be. may petition the planning commission
of the county within which his land is located or the zoning board of �205-10 Use.of field officers. Notwithstanding section 205-4 requir-
appeals in the ease of the city and county of Honolulu for permission ing a hearing by the full land use commission, if any application, requir-
to use his land in the manner desired. . ing a hearing is received which the commission in the course of its
The planning commission, or the zoning board of appeals as the regular meetings shall not be able to hear for more than sixty days, it
case may be. shall conduct a hearing within a period of not less than may authorize a field officer to conduct the hearing and make a recom-
thirty nor more than one hundred twenty days from the receipt of the mendation: provided all other necessary rules for hearings are adhered
petition. The planning commission or the zoning board of appeals shall to. The recommendations of the field officer shall be submitted to the
notify the land use commission and such persons and agencies that commission at its next meeting. and any recommendation. or rulings by
may have an interest in the subject matter of the time and place of the the commission as a result of this recommendation. shall be subject to
hearing. a review of the full commission at the next hearing date scheduled for
The planning commission or zoning board of appeals may. under the county in which the land concerned is located, if either the com-
such protective restrictions its may he deemed necessary. permit the mission or the applicant notified the other party at least twenty days
desired use, but only when the use would promote the effectiveness prior to this date. IL 1963. c 205, pt of �2; Supp. �98H-101
and objectives of this chapter. The planning commission or the zoning
board of appeals shall act on the petition not earlier than fifteen days �205-11 Periodic review. or districts. Irrespective of changes and
after the public hearing. A decision in favor of the applicant shall rc- adjustments that.it may have made. the land use commission shall
quire a majority vote of the total membership of the planning commis- make a comprehensive review of the classification and districting of all
sion or of the zoning board or appeals. which shall be subject to the lands and of the regulations at the end of each five years following the
approval of the land use commission@ A copy of the decision together adoption thereof. The assistance of appropriate. state and county depart-
with the findings shall be transmitted to the commission within ten ments shall be secured'in making this review and public hearings shall
days after the decision is rendered. Within forty-five days a*ftcr receipt be held in each county in accordance with the requirements set forth
of the county agency'sdecision. the commission shall act to approve or for the adoption in final form of. district boundaries, and regulations
deny. A denial either by the county agency or by the commission, as under this chapter. I L' 1963, c 205, pt of �2: Supp, �98H- I I I
the case may be, of the desired use shall be appealable to the circuit
court of the circuit in which the land is situated and shall be made �205-12 Enforcement. The appropriate ot1ficer or agency charged
pursuant to the Hawaii Rules of of Civil Procedure. [L 1963. c 205, pt with the administration of county zoning laws shall enforce within each
of �2; Supp. �98H-61 county the use classification districts adopted by the land use commis-
Attorney General Opinions' sion and shall report to the commission all violations.. [L 1963, c 205.
Special permit, cannot be granted to authori?c uses which have effect of making pt of �2; Supp. �981-1-121
boundary change or creating new di,trict. An. Gcn. Op. 63-37.

�205-13 Penalty for violation. Any person who violates any provi-
sion of this chapter. or any regulation established pursuant to this
chapter. shall be fined not more than $1,000. [1. 1963. c 205, pt of �2:
Supp. �98H-13

�205-14 Adjustments of assessing practices. Upon the adoption of
district boundaries. certified copies of the classification maps showing
the district boundaries shall be filed with the department of taxation.
Thereafter, the-department of taxation shall. when making assessments
of property within a district. give consideration to the use or uses that
may be made thereof us well as the uses to which it is then devoted.
L 1963, c 205, pt of �2; Supp. �98H-141

�205-15 Conflict. Fxcept as specifically provided by this chapter
and the regulations adopted thereto, neither the authority for the ad-
ministration of the provisions of section 183-41 nor the authority
vested in the counties under the provisions of section 46-4 shall be
affected. L 1963, c 205, pt of �2; Supp. �98H-151

ACT NO. 250 of the Vermont Laws, 100.

10 Vt. Stat. Ann. Ch. 151, ��6001, et. seq.

Vermont Environmental Board

Revision note. Reference to "section 246 of Title 30" was changed to "section
248 of Title 1.0" to conform reference to renumbering of such section.
Findings and declaration of intent. 1969, No. 250 (Adj. Sess.), eff.
April 4, 1970, provided:
"Whereas, the unplanned, uncoordinated and uncontrolled use of the lands
and the environment of the state of Vermont has resulted in usages of the
lands and the environment which may be destructive to the environment and
Subchapter 1. General Provisions which are not suitable to the demands and needs of the people of the state of
Vermont; and
6001. Definitions Whereas, a comprehensive state carability and development plan and land
use plan are necessary to provide gu'delines for utilization of the lands and
When used in this chapter: environment of the state of Vermont'anci to 4lefine the goals to be achieved
through land environmental use, planning and control; and
(1) "Board" means the environmental board. Whereas, it is necessary to establish an environmental board and district
(2), "Capability and development plan" means the plan prepared environmental commissions and vest them with the authority to regulate. the
use of the lands and the environment of the state according to the guidelines
pursuant to section 6042 of this title. and goals set forth in the state comprehensive capability and development
(3) "Development" means the construction of improvements on plan and to give these commissions the authority to enforce the regulations
and controls; and
a tract or tracts of land, owned or controlled by a person, involving Whereas, it is necessary to regulate and control the utilization and usages
more than 10 acres of land within a radius of five miles of anv of lands and the environment to insure that. hereafter, the only usages which
will be permitted are not unduly detrimental to the environment, wit[ promote
point on any involved land, for commercial, or industrial purposes. the general welfare through orderly growth anti development and are suitable
"Development" shall also mean the construction of improvements to the demands and needs of the peopie of this state;
Now, therefore, the legislature declares that in order to protect anti conservo
for commercial or industrial purposes on more than one acre of land the lands and the environment of the state and to insure that these lands an,.
within a municipality which has not adopted permanent zoning and environment are devoted to uses which are not detrimental to the public wel-
fare and interests, the state shall, in the interest of the public health, safety
subdivision bylaws. The word "development" shall mean the con- and welfare, exercise its power hy creating a state environmental boant and
Btruction of housing projects such as cooperatives, condominiums. or district environmental commission% conferrinz upon them the power to
regulate the use of lands and to establish comprehensive state capability,
dwellings, or construction or maintenance of mobile homes or development and land u.--!e plans as hereinafter provided."
traffer parks, with 10 or more units, constructed or maintained Separability. 1969, No. 250 @-Adj. Sess.), � 03, provided: "If any pr-sion of
on a tract or tracts of land, owned or controlled by a person. this act (chapter], or the application of such p rovision to any person or
circumstances, shall be h,@ld invali,l, the remainder of this act [chapter), or the
within a radius of five miles of any point on any involved land. application of that provision to persons or circumstances o@her than those, as
The word "development" shall not include construction for farming. to which it is held invalid, shall not be atfected thereby."
Appropriation. 1969, No. 250 (Adj. Sess.), 5 34, provided: "'Lliere is hereby
logging or forestry purposes below the elevation of 2500 feet. Th( appropriated to the executive offlice the sum of @',0.000.00 for the purposes of
word "development" also means the construction of improvements this act. These funds shall not revert but may be used until June 30, 19712,
on. a tract of land involving more than 10 acres which is to be � 6002. Procedures
used for municipal or state purposes. In computing the amount The provisions of chapter 25 of Title 3 shall apply unless other-
of land involved. land shall be included which is incident to the wise specifically stated-1969, No. 250 (Adj. Sess.), � 26, eff.
use such as lawns, parking areas, roadways, leaching fields and April 4, 1970.
accessory buildings. The word "development" shall not include an
electric generation or transmission facility which requires a cer- � 6003. Penalties
tificate of public good under section 248 of Title 30. The word A violation of any provision of this chapter or the rules promul-
"development" shall also mean the construction of improvements gated hereunder is punishable bv a fine of not more than $500.00
for commercial, industrial or residential use above the elevation of for each day of the Violation or imprisonment for not more than
2500 feet. two years, or both.-1969, No. 250 (Adj. Sess.), � 28, eff. April 4,
(4) "District commission" means the district environmental com- 1970.
mission. � 6004. Enforcement
(5) "Land use plan" means the plan prepared pursuant to sec-
tion 6043 of this title. In addition to the other penalties herein provided, the board may,
(6) "Lot" means any undivided interest in land of less than 10 in the name of the state of Vermont, institute any appropriate
s, whether freehold or leasehold, including, but not limited to action, injunction, or other proceeding to prevent, restrain, correct
interests created by trusts, partnerships, corporations, cotenancies or abate any violation hereof or of the rules promulgated hereunder.
and contracts. -1969, No. 250 (Adj. Sess.). 4 29, eff. April 4, 1970.
(7) "Plat" means a map or chart of a subdivision with surveyed
lot lines and dimensions Subchapter 2. Administration
. (8) "Person" shall mean an individual, partnership, corporation, S 6021. Board; vacancy; removal
association, unincorporated organization, trust or any other legal
or commercial entity, including a joint venture or affilliated owner- (a) An environmental board is created. The board shall consist of
ship. The word "person" also means a municipality or state agency. nine members appointed in the month of February by the governor,
(9) "Subdivision" means a tract or tracts of land, owned or con- with the advice and consent of the senate, so that five appointments
trolled by a person, which have been partitioned or divided for the expire in each odd numbered year. Eight of the members shall be
purpose of resale into 10 or more lots within a radius of five miles appointed for a term of four years. The chairman (ninth member)
of any point on any lot, and within any continuous period of 10 shall be appointed fora two year term.
years after the effective date of this chapter. In determining the (b) Any vacancy occurring in the membership of the noard
number of lots, a lot shall be counted if any portion is within 5 shall be filled by the governor for the unexpired portion of the term.
miles-1969, No. 250 (Adj. Sess.), � 2, eff. April 4, 1970. (c) Members shall be removable for cause only, except the chair-

man, who shall serve at the pleasure of the governor@1969, No. 6027. Powers
250 (Adj. Sess.), � 3, eff. April 4, 1970. (a) The board-and district commissions shall have the power to
Temporary provisions. 1969, No. 250 (Adj. Sess.), � 32(a), (c), eff. April 4, compel the attendance of witnesses, and require the production
1970, provided:
"(a) On or before June 1, 1970, the governor shall appoint four members to of evidence.
the board whose terms shall expire January 31, 1971, four members whose (b) The powers granted to the board under this chapter are'addi-
terms shall expire January 31, 1973, and a chairman whose term shall expire
January 31, 1971." tional to any other powers which may be granted- to it'by -other
"(c) The appointments to the board shall be made with the advice and legislation.
consent of the senate for all appointments made during the present session of
the legislature, and for all appointments, not so made, whose terms expire (c) The board may designate or establish such regional offic e*s as
in 1973, by the senate of the general assembly convening January, 1971." it deems necessary to implement the provisions of this chapter and
� 6022. Personnel the rules adopted hereunder. The board may designate or require
a regional planning commission to receive applications, pro@ide
The board may appoint an executive officer and other eni- and make recommend .a-
administrative assistance, investigations,
ployees, including administrative personnel, as it finds necessary tions.
in carrying ou 't its duties, unless the governor shall otherwise (d) The board, when it cietermines the workload in any district
provide-1969, No. 250 (Adj. Sess.), � 4, eff. April 4, 1970.
is 3UCh that unreasonable delays will result, may at the request
6023. Grants of an overloaded district authorize the district commission of
The board may apply for and receive grants from the federal another district to sit in that district to consider applicat ,ions.
government and from other sources-1969, No. 250 (Adj. Sess.), .(e) The board may by rule allow joint hearings to be conducted
4, eff. April 4, 1970. with specified state agencies or specified municipal ities-1969,
No. 250 (Adj. Sess.), � 25, eff. April 4, 1970..
� 6024. Intragovernmental. cooperation
Other departments and agencies of state government shall � 6028. Compensation
cooperate with the board and make available to it data, facilities Members of the board and district commissions shall receive a
and personnel as may be needed to assist the board in carrying out per them pay of $25.00 and all necessary expenses-1969, No.
its duties and functions-1969, No. 250 (Adj. Sess.), � 4, eff. 250 (Adj. Sess.), � 31, eff. April 4, 1970.
April 4, 1970.
Subchapter S. Use and Development Plans
6025. Rules
The board shall adopt rules to interpret and carry out the 6041. Interim capability plan
provisions of this chapter-1969, No. 250 (Adj. Sess.), � 25, eff. Prior to the adoption of the capability and development plan,
April 4, 1970. the board shall adopt an interim land capability and development
plan which will describe the present use of the land and define in
� 6026. District commLssioners broad categories the capability of the land for development and
(a) For the purposes of the administration of this chapter, the use based on ecological considerations and which plan shall be in
state is divided into nine districts. effect until the adoption of the land use plan, or until July 1, 1972,
(1) District No. 1, comprising Franklin, Grand Isle and La- whichever first occurs-1969, No. 250 @Adj. Sess.), � 18, eff.
moille Counties. April 4, 1970.
(2) District No. 2, comprising Orleans, Essex and Caledonia � 6042. Capability and development plan
Counties. The board shall adopt a capability and development plan consist-*
(3) District No. 3, comprising Chittenden County. ent with the interim land capability plan which shall be made with
(4) District No. 4, comprising Addison County. the general purpose of guiding and accomplishing a coordinated,
(5) District No. 5, comprising Washington and Orange Coun- efficient and economic Se'velopment of the state, which will, in
ties. accordance with present and future needs and resources, best
(6) District No. 6, comprising Rutland County. promote the health, safety, order, convenience, prosperity and wel-
(7) District No. 7, comprising Windham County. fare of the inhabitants, as well as efficiency and economy in the
(8) District No. 8, comprising Bennington County. process.of development, including but not limited to, such distribu-
(9) District No. 9, comprising Windsor County. tion of population and of the uses of the land for urbanization,
(b) A district environmental commission is created for each dis- trade, industry, habitation, recreation, agriculture, forestry and
trict Each district commission shall consist of three members from other uses as will tend to create conditions favorable to transporta-
that district appointed in the month of February by the governor tion, health, safety, civic activities and educational.and cultural
so that two, appointMents expire in each odd numbered year. Two opportunities, reduce the wastes of financial and human resources
of the members shall be appointed for a term of four years, and the which result from either excessive congestion or excessive scatter-
chairman (third member) of each district shall beappointed for a ing of population and tend toward an efficient and economic utiliza-
two-year term. tion of drainage, sanitary and other facilities and resources and the
(c) Members shall be removable for cause only, except the chair- conservation and production of the supply of food, water and miner-
man who shall serve at the. pleasure of the governor. als. In addition, the plan may accomplish the Purposes set forth
(d) Any vacancy shall be filled by the governor for the unexpired in section 4302 of Title 24-1969, No. 250 (Adj. Sess.), � 19, eff.
period of the term-1969, No. 250 (Adj. Sess.), � 5, eff. April 4, April 4, 1970.
1970. � 6043. Land use plan
Temporary provisions. 1969. No. 250 (Adj. Sess.), � 32(b), eff. April 4,
1970, provided: "(b) On or before June 1, 1970, the governor shall appoint After the adoption of a capability and development plan, the
one member of each district commission whose term shall expire January 31, board shall adopt a land use plan based on the capability and de-
1971, one member whose term shall expire January 31, 1973, and a chairman
whose term shall expire January 1.1, 1971." velopment plan which shall consist of a map and statements of
present and prospective land uses based on the capability and de-

velopment plan, which determine in broad categories the proper (c) After 60 days but within 120 days of the original receipt of
use of the lands in the state whether for forestry, recreation, a petition, the board shall advertise a public hearing to be held
agriculture or urban purposes, the plans to be further implemented in the appropriate county. The board shall notify the persons and
at the local level by authorized land use controls such as subdivi- agencies that have an interest in the change of the time and place
sion regulations and zoning-1969, No. 250 (Adj. Sess.), � 20, eff. of the hearing.
April 4, 1970. (d) With respect to petitions relating to section 6043 of this
title no change shall be approved unless the petitioner has submit-
6044. Public hearings ted proof that the area is needed for a use other than that for
(a) The board shall hold public hearings for the purpose of col- which the district in which it is situated is classified, and the
lecting information to be used in establishing the capability and following requirements have been fulfilled:
development plan, land use plan, and interim land capability plan. (1). The petitioner has submitted proof that the land is usable
The public hearings may be held in an appropriate area 'or areas of and adaptable for the use for which it is proposed to be classified,
the state and shall be conducted acenrding to rules to be established and
and published by the board. (2) Conditions and trends of development have so changed
(b) The board may, on its own motion or on petition of an in- since the adoption of tile present classification, that the proposed
terested agency of the state or any regional or local planning com- classification is reasonable.
raission, hold such ot -her hearings as it may deem necessary from (e) With respect to petitions relating to section bU41 of this
time to time for the purpose of obtaining information necessary title no change shall be allowed unless the land is capable of sus-
or helpful in the determination of its policies, the carrying out of taining the use proposed.
its duties, or the formulation of its rules and regulations. (f) The applicant, any person or municipality directly affected,
. (c) At least one public hearing shall be held in each district who is aggrieved may appeal to the supreme court as in section
prior to adoption of a plan pursuant to sections 6042 and 6043 of 6089(b) of this title.-1969, No, 250 (Adj. Sess.), � 24, eff.
this title. Notice of a hearing shall be furnished each municipality, April 4, 1970.
and municipal and regional planning commission in the district Revision note. Undesignated par. was designated as subsec. "(b)" to con-
where the hearing is to be held not less than fifteen days prior to form to V.S.A. style and remaining subsecs. redesignated as "(c)"--(f)".
the hearing. Subchapter 4. Permits
(d) The provisions of chapter 25 of Title 3 shall not apply to
the hearings under this section-1969, No. 250 (Adj. Sess.), � 21, � 6081. Permits required; exemptions
eff. April 4, 1970. (a) No person shall sell or offer for sale any interest in any sub-
6045. Submission to planning commissions division located in this state, or commence construction on a sub-
Prior to approval of a plan by the board the tentative plan shall division or development, or commence development without a. per-
be submitted to each municipal and regional planning commission, mit. This section shall not prohibit the sale, mortgage or transfer
of all, or an undivided interest in all, of a subdivision unless the
which shall forward its comments and recommendations, if any, sale, mortgage or transfer is accomplished to circumvent the
to the board within 30 days. The board shall, prior to approval purposes of this chapter.
of the plm consider all such comments and recommendations, (b) Subsection (a) of this section shall not apply to a subdivi-
make such chatiges in the plan as it deems appropriate, and convey sion exempt under the regulations of the department of health in
its specific responses to the respective planning commissions from effect on January 21, 1070 or any subdivision which has a permit
which the comments and recommendations originate4_1969, No. issued prior to J`une 1, 1970 under the board of health regulations,
250 (Adj. Sess.), � 22, eff. April 4, 1970. or has pending a bona fide application for a permit under the
� 6046. Approi.-al of governor and legislature regulations of the board of health on June 1, 1970, with respect to
(a) Upon approval of a capability and development land use or plats on file as of June 1, 1970 provided such permit is granted
interim land capability plan by the board, it shall submit the plan prior to August 1, 1970. Subsection (a) of this section shall not
to the governor for approval. The governor shall approve the plan apply to development vdiich is not also a subdivision, which has
or disapprove the plan or any portion of a plan, within 30 day. been commenced prior to June 1, 1970, if the construction -will be
of receipt. If the governor fails to act, the plan shall be deemed completed by March 1. 1971. Subsection (a) of this section shall
approved by the governor. This section and section 6045 of this not apply to a state highway on -which a hearing pursuant to sec-
title shall also apply to any amendment of a plan. tion 222 of Title 19 has been held prior to June 1, 1970. Subsection
(b) After approval by the governor, plans pursuant to sections (a) of this section shall apply to any substantial change in such
6042 and 6043 of this title shall be submitted to the general excepted subdivision or development-1969, No. 250 (Adj. Sess.),
assembly when next in session for approval by joint resolution. A H 6, 7, subsec. (a), eff. June 1. 1970, subsec. (b), eff. April 4,
plan shall be considered adopted for the purposes of section 1970.
6096(b) (9) of this title when the required final approval has been � 6082. Approval by local governments and state agencies
made-1969, No. 250 (Adj. Sess.), � 23, eff. April 4, 1970. The permit required under section 6081 of this title shall not
Revision note. Undesignated pars. of this section were designated as supersede or replace the requirements for a permit of any other
3ubsecs. "(a)" and "(b)" to conform section to V.S.A. style. state agency or municipal government-1969, No. 250 (Adj.
� 6047. Changes in boundaries Sess.), � 27, eff. April 4, 1970.
(a) After final adoption, any department or agency of the state
or a municipality, or any property owner or lessee may petition 6083. Applications
the board for a change in the boundary of any district created under (a) An application for a permit shall be filed with the district
section 6043 of this title or the capability of land for a use under commissioner as prescribed by the rules of the board and shall
section 6041 of this title. contain at least the following documents and information:,
(b) Within 10 days of receipt, the board shall forward a copy (1) The applicant's name, address, and the address of each
of the petition to the district commission and regional planning of the applicant's offices in this state, and, where the applicant is
agency for comments and recommendations. If no regional plan- not an individual, municipality or state agency, the form, date
ning commission exists, the copy shall be sent to the affected and place of formation of the applicant.
municipal planning commissions and municipalities. (2) Five copies of a plan of the proposed development or

subdivision showing the intended use of the land, the proposed im- soils and subsoils and their ability to adequately support waste dis-
provements, the details of the project, and any other information posal; the slope of the land and its effect on eilluents. the avail-
required by this chapter, or the rules promulgated thereunder. -ability of streams for disposal of effluents; and the applicable health
(3) The fee prescribed by rule. and water resources department regulations.
(4) Certification of filing of notice as set forth in 6094 of this (2) Does have sufficient water available for the reasonably
title. foreseeable needs of the subdivision or development.
(b) The board and district commission may conduct such (3) Will, not cause an unreasonable. burden on an existing water
investigations, examinations, tests and site evaluations as they supply, if one is to be utilized.
deem necessary to verify information contained in the application. (4) Will not cause unreasonable soil erosion or reduction in the
An applicant shall grant the board or district commission, or their capacity of the land to hold water so that a dangerous or unhealthy
agents, permission to enter upon his land for these purposes-1969, condition may result.
No. 250 (Adj. Sess.), �� 8, 15, eff. April 4, 1970. (5) Will not cause unreasonable highway congestion or unsafe
� 6084. Notice conditions with respect to use of the highways existing or proposed.
(6) Will not cause an unreasonable burden on the abihtv of a
(a) On or before the date of filing of application the applicant municipatty to provide educational services.
shal[l send notice and a copy of the application to A municipality, (7) Will not place an unreasonable burden on the ability of the
and municipal and regional planninl- commissions wherein the land local governments to provide municipal or governmental services.
is located, and any adjacent Vermont municipality, municipal or (8) Will not have an undue adverse effect on the scenic or
regional planning commission if the land is located on a boundary. natural beauty of the area, aesthetics, historic sites or rare and
The appicant shall furnish to the district commission the names irreplaceable natural areas.
of those furnished notice by affidavit, and shall post a copy of the 1 (9) Is in conformance with a duly adopted development plan,
notice in the town clerk's office of the town or towns wherein the, land use plan or land capability plan.
land lies. (10) Is in conformance with any duly adopted local or regional
(b) The district commission shall forward notice and a copy of plan under chapter 91 of Title 24.
the application to the board and any state agency directly affected, (b) The board or district commission shall issue its findings and
and any other municipality or state agency, or person the district decision within 20 days of tile final hearing day.
commission or board deems appropriate. Notice shall also be pub- (c) A permit may contain such requirements and conditions as
lished in a 'local newspaper generally circulating in the area where are allowable within ,the proper exercise of the police power and
the land is located not more than 7 days after receipt of the applica- which are appropriate with respect to (1) through (10) of subsec-
tion-1969, No. 250 (Adj. Sess.), � 9, eff. April 4, 1970. tion (a), including but not limited to those set forth in sections
6085. Hearings 4407 (4), (8) and (9), 4411 (a) (2), 4415, 4416 and 4417 of Title 24,
(a) Anyone required to receive notice by section 9 and any ad- the dedication of lands for public use, and the filing of bonds to
joining property owner may request a hearing by filing a request insure compliance. The requirements and conditions incorporated
within 15 days of receipt of notice. UpGn receipt of notice the dis- from Title 24 may be applied whether or not a local. plan has been
trict commission shall treat the application pursuant to section 814 adopted. General requirements and conditions may be established
of Title 3. The district commission may order a hearing without a by rule.
request within 20 days of receipt of the application. (d) The board may by rule allow the acceptance of a permit or
@ M The date for a hearing shall be set within 25 days of receipt permits or approval of any state agency with respect to (1)
of the application or notice of appeal filed under section 6088(a) through (5) of subsection (a) or a permit or permits of a specified
of this tit%e. The hearing shall be held within 40 days of receipt of municipal government with respect to (1) through (7) and (10) of
the application or notice of appeal. The parties shall be given not subsection (a), or a combination of such piermits or approvals, in
less than 10 days notice. Notice shall also be published in a local lieu of evidence by the applicant. The acceptance of such approval,
newspaper generally circulating in the area where the land is permit or permits shall create a presumption that the application
located not less than 10 days before the hearing date. is not detrimental to the public health and welfare with respect to
(c) Parties shall be those who have received notice, adJoining the specific requirement for which it is accepted. Such a rule may
property owners lvlio have requested a hearing, and such other be revoked or amended pursuant to the procedures set forth
persons an the board may allow by rule. For the purposes of appeal in section 803(b) of Title 3. The board shall not approve the
a- gional and municipal plan- acceptance of a permit or approval of such an agency or a permit
only the applicani, a stat'e . 'ency, the re,
ning commissions and the municipalities required to receive notice of a municipal government unless it satisfies the appropriate re-
shall be considered part-es. quirements of subsection (a) of this section-1969, No. 250
(d) If no hearing has been requested or ordered within the (Adj. Sess.), � 12, eff. April 4, 1970.
prescribed period no hearing need be held by the district commis-
sion. In such an event a permit shall be granted or denied within � 6087. Denial of application
60 days of receipt; otherivise, it shall be deemed approved and a (a) No application shall be denied by the board or district com-
permit shall be issued-1969, No. 250 (Adj. Sess.), �� 10, 11, eff. mission unless it finds the proposed subdivision or deve.opment
April 4, 1970. detrimental to the public health, safety or general welfare.
(b) A permit may not be denied solely for the reasons Fet forth
1 6086. Usuance of permit-, conditions in (5), (6) and (7) of section 6086(a) of this title. However,
(a) Before granting a permit the board or district commission reasonable conditions and requirements allowable in section
shall find that the subdivision or development: 6086(c) of this title may be attached to alleviate the burdens
d (1) Will not result in undue water or air pollution. In making created.
this determination it shall at least consider: the elevation of land (c) A denial of a permit shall contain the specific reasons for
above sea level; and in relation to the flood plains, the nature of denial. A person may, within 6 months, apply for reconsideration

of his permit which application shall include an affidavit to the dis,
trict commission and all parties of record that the deficiencies have
been corrected. The district commission shall hold a new hearing
upon 25 days notice to the parties. The hearing shall be held within
40 days of receipt of the request for reconsideration-1969, No.
250 (Adj. Sess.), � 12, eff. April 4, 1970.

� 6088. Burden of proof
(a) The burden shall be on the applicant with respect to (1),
(2), (3), (4), (9) and (10) of section 6086(a) of this title.
(b) The burden shall be on any party opposing the applicant
with respect to (�) through (8) of section 6086(a) of this title to
show an unreasonable or adverse effect-1969, No. 250 (Adj.
Sess'.), � 13, eff. April 4, 1970.

6089. Appeals
(a) An appeal from the district commission shall be to the board.
The board shall hold a de novo hearing on all findings requested by
any party. Notice of appeal shall be filed with the board within.
30 days. The board shall notify the parties set forth in section
6085(c) of this title. The board shall proceed as in section 6085(b)
and (c) of this title and treat the applicant pursuant to section 814
of Title 3.
(b) Am appeal from a decision of the board under subsection (a)
shall be to the supreme court by a party as set forth in section
6085(c) of this title.
(c) No objection that has not been urged before the board may
be considered by the court, unless the failure or neglect to urge
such objection shall be excused because of extraordinary circum-
stances. The findings of the board with respect to questions of
fact, if supported by substantial evidence on the record as a whole,
shall be conclusive.
(d) An appeal from the board will be allowed for all usual
reasons, including the unreasonableness or insufficiency of tile condi-
tions attached to a permit. An appeal from the district commission
will be allowed for any reason except no appeal shall be allowed
when an application,has been granted and no preliminary hearing
requested-1969, No. 250 (Adj. Sess.), � 14, eff. April 4, 1970,

6090. Duration and revocation of permits
(a) Any permit granted under this chapter shall be for a
specified period determined by the board in accordance with the
rules adopted under,this chapter as a reasonable projection of the
time during which the land will remain suitable for use if de-@
veloped or subdivided as contemplated in the application, and with
due regard for the economic c onsiderations attending the pro-
posed development or subdivision.
(b) A permit may be revoked by the board, in the event of
violation of any conditions attached to any permit or the terms of
any application, or violation of any rules of the board@1969, No.
250 (Adj. Sess.), � 16, eff. April 4, 1970.

� 6091. Renewals and nonuse
(a) At the expiration of each permit, it may be renewed under
the same procedure herein specified for an original application.
(b) Nonuse of a permit for a period of one year following the
date of issuance shall constitute an abandonment of the project and
the permit shall be considered expired.
(c) If the application is made for an extension prior to expiration
the district commission may grant an extension and may waive the
necessity of a hearing-1969, No. 250 (Adj. Sess.), � 17, eff.
April 4, 1970.

MAteer-Petris Act of 1969, amending
Cal. Gov't Code ��66600-652

San Francisco Bay Conservation and
Development Commission

66602. Water-oriented land uses
TITLE 7.2 SAN FRANCISCO The Legislature further finds and declares that certain water-orientited land uses
along the bay shoreline are essential pubic welfare of the bay area, and that
BAY CONSERVATION AND such uses include ports water-related industries airports, wildlife refuges, water.
oriented recreation and public assembly, desalinization plants find powerplants
requiring large amounts of water for cooling purposes; that the San Francisco
DEVELOPMENT COMMISSION Bay Plan should make provision for adequate and suitable locations for all such
uses thereby minimizing the necessity for future bay fill to create new sites for
such uses. that existing public access to the shoreline and waters of the San Fran-
Cisco Bay is inadequate and that maxinium feasible public access, consistent with
a proposed project. should be provided.
(Added by Stats 1969 c 713, p. 1397, 12.)
Chapter Section Library references
Navigable Waters
Findings and Declarations of Policy ------------------------ 66600 C.J.S. Navigable waters, 10 at seq.
2. Definition of San Francisco Bay ----------------------------- 66610 S 66602.1 Saltponds and managed wetlands
3. San Francisco Bay Conservation and Development Commis- The Legislature further find., and declares that areas diked off from the bay
sion ------------------------------------------------------- 66620 and used as saltponds and managed wetlands fire important to the bay area in
4. Powers and Duties of the Commission --------- ------------- 66630 that, among other things such areas provide a wildlife habitac and a large water
Final Report and Termination of Existence of the Commission 6GG50 surface which. together with,surface of the bay moderate the elimate of the
bay area and alleviate air pollution: that it is in the public intcrest to encourage
Title 7.2 was added by Stats.1965, c. 1162, p. 2940, � I- continued maintenance and operation of the salt ponds arid managed wetlands
that, if development is proposed for these areas dedication or public purchase of
some of these lands should be encouraged in order to prerserve water arms: Chat.
Chapter 1 if any such areas are authorized to be developed and used for other purposes, the
development should provide the maxinium public access to the bay Consistent with
the proposed project and should retain tile maximum amount of water surface area
FINDINGS AND DECLARATIONS OF POLICY consistent will the proposed project.
Sec. (Added by Stats.1969, c. 713, p. 1396 � 1.6.) Library references
66600. Public interest in Bay. Navigable Waters
66601. Filling of Bay. C.J.S Navigable Waters 10 et seg.
66602. Blank. 66603. San Francisco Bay Plan
66603. New regional approach; study. The Legislature further finds and declares that the San Francisco Bay
66604. Interim provision; powers of commission. Conservation and Development Commission - - treating the entire bay as a
unit has made a defailed study of all the cha racteris tics of tile bay, in-
Chapter 1 was added by Stats.1965, c. 1162, p. 2940, � I. cluding: the quality, quantity, and movement of bay waters, the ecological bal-
ance if the bay. - - - the econonmic interests it, the bay. including- tile needs
Cross References of the bay area population for industry and for employment ** the require-
Mile of Act, see J GIM3. ments of industries, that would not pollute the bay nor interfere with its use for
recreation or other purposes, but not sites near deepwater channels **:
� 66600. Public interest in Bay. The Legislature hereby finds that the study has examined all prcent arid proposed use- of the bay
and its shoreline, and * tile master plans of cities and counties around the
and declares that the public interest in the San Francisco Day is in bay. and that on the basis of the study * * the commission has prepared
Its beneficial use for a variety of purposes; that the public has an in- compreneshive and enforceable plan for the conservation of the water of the bay
terest in the bay as the most valuable single natural resource of an en- and tile development of its shorelined the San Francisco Bay Plan.
tire region, a resource that gives special character to the bay area; (Amended by Stats.1960
1114ll , c. 711, P. 1:1117, 021.)
1969 Amendmend Rewrote section.
that the bay is a single body of water that can be used for many pur- Law Review Commentaries Regulaton of San Francisco Ray; Loss of value compensation and alternative menus (1967 55 CLR 745. Regulation of San franciso bay and state constitutional problems including home rule (1967) In General Assumning public agency had obtained governmental approval if necessary and commencemnet of filling and diking process in San Franciso Ray for purpose of determing whether project was exempt form permit requirements under grandfather clause of relatong to conservaton and development commission that remained whether in satisfactory had been undertaken pursuna to and detailed

(d That the nature, location and extent of any fill should be such that It will tory which are included in subdivisions (a),(c) and (j) of this section; provided that
minimize harmful effects to the bay area, such as the reduction or Impairment the commission way. by resolution, exclude from Its area Of jurisdiction any area
of tile volume surface area or circulation of water. water quality, fertility of marsh- within the shoreline band that it finds and declares is of no regional Importance to
es or fish or wildlife resources: the bay.
(e) That public health, safety arid welfare require that fill be constructed In (c) Saltponds consisting of all areas which have been diked off front the bay and
accordance with sound safety standard., which will afford reasonable protection have been used during the three years immediately preceding tile effective date of the
to persons and property against tile hazards of unstable geologic or soil conditions amendment of this section during the 1969 Regular Session of tile Legislature for the
or of flood or storm waters: solar evaporation of bay water in the course Of Salt production.
(f) That fill shouled be authorized when the filling would, to the maximum extent (d) Managed wetlands consisting, of all areas which have been diked off from the
feasible establish a permanent shoreline; bay and have been amendmend during the three years, immediately preceding the ef-
(g) That fill should be authorizted when the applicant has such valid title to the fective date of the amendment of this section during the 1961) Regular session of
properties in question that he may fill them in the manner and for the uses to be the Legislature as a duck hunting preserve. game refuge or for agriculture.
approved. (e) Certain waterways (it addition to areas included within subdivision (a), con-
(Added by Stats.1960 . C. 713. p. 1397. � 3.5.) sisting of all area that subject to tidal action. including submerged lands. title-
66605.1 Improvement, development and preservation of shoreline land.,, and marshlands up to five above mean sea level. on, or tributary to. the
The Legislature finds that in order to make San Francisco Bay more accessible listed portions ofthe following waterways:
for the use and enJoYment of people the bay shoreline should be improved, de- (1) P1ummer Creek In Alameda County, to the eastern limit of the saltponds
veloped and preseved . The 1egislature further recognizes that Private invest-
ment in shore1ine development should be vigorously encourged and may be One (2) Coyote Creek and branche in Alamedo. and Santa Clara Counties to the easternmost point of Newby Island
of the principal means of achieving bay shoreline development minimizing the
resort to taxpayer funds: therefore the legilature declares that tile commission
should encouge booth public and private development of the bay shoreline. (3) Redwood Creek In San Marco County, to Its confluence with Smith Slough.
(Added by stats.l960, c. 713, p. 1398, � 4.) (4) Tolay Creek In Sonoma County. to the northerly title of Sears Point Road
Library references (State Highway 37
Navigable Waters
navigable Waters 1 10 et seq. (3) Petaluma River in Marlin and Sonoma Counties to Its confluence with Adobe
Construction of title; preservation of rights of property owners Creek. and San. Antonio Creek to the eastly line of tile Northwestern Pacific Hall-
The Legislature hereby finds and declares that this title is not intended, and road right-of-way.
shall not be construed, it authorizing the commission to exercise its power to grant (6) Napa River, to tile northernmost point of bull island.
or deny a permit in a manner which will take or damage private property for pub- (7) Sonoma Creek. to its confluence second Napa Slough
lic use, without the payment of just compensation therefor. This section is not The defintion which is made by this Section is merely for tile. purpose of pre
intended to increase or decrease the rights of any owner of property under the scribing the area Of jurisdiction of tile commission which is created ivy flits title.
Constitution of the State of California or tile United States. This definition shall not be, construed to affect title to any land or to prescribe tile
(Added by Stats 1969, c. 713. p. 1398, � 4.1.) boundaries of the San Francisco Bay for any purpose except the authority of the
Library references commission created by this title.
Navigable Waters
C.J.S. Navigable Waters et seq. (Amended by Stats.1960, c. T13, p. 1300, 15; Stats.1070, c. 1279, p. 1.)
1 66606.5 Acquisition of private property for public use; study; reports 1 66611. Fixing and establishing boundaries of water-oriented priority land uses;
The Legislature find, and declares that the San Francisco Bay Plan indicates hearing; resolution
that extensive areas in and around tile bay are owned or held under claim of own- No later than December 1. 1971, the commission, after public hearing,
ership by priVate persons and that the acguistion for public use of all or large of which adequate descriptive notice is given, shall adopt and file with the Gov-
portion of such areas or the establishment of wildlife refuges therein may re-
ernor and the Legislature a resolution fixing and establishing with in shoreline
quite a substantial public Investment. The Legislature further finds and declares bond the boundaries of the water-oriented priority land uses, as referred to in Sec-
that the commission should make a continuing review and prepare and submit tion 02. After such filing no further changes shall be made in such bound-
periodic reports on the nature, extent established cost arid method of financing of dries, except with the approval of the Legislature.
ally proposed acquisitions of private property for public lose (Added by Stats.1909, c. 713. Is. 14(K),j 5.1. Amended by Stats.1970, c 998, p.
I 11.)
Added by stats. 1960 c. 713, p. l308, 4.2.)
Library references Library references
Navigable Waters Navigable Waters .
Navigable Waters I to et sets. C.F.S. Navigable Waters 1 10 t sets.
66606 Establishment of agricultural preserves by private property owners and
local governments CHAPTER 3. SAN FRANCISCO SAY CONSERVATION
Nothing in this title shall deny the right of private property owners and local AND DEVELOPMENT COMMISSION
governments to establish agricultural preserves and enter into contracts pursuant Set.
to the provisions of the California Land Conservation Act of 1965. GGG20. Creator.; composition; appointment [New].
The commission, within six Months after the effective date of this section, shall
Institute an affirmative action program to encourage local governments to enter 1 66620. Creation; composition; appointment
into contracts under the California Land Conservation Act of 1965 with owners of The San Francisco Day Conservation and development Commission Is hereby
property to which the provisions of that act may applicable. created. The commission shall ConSiSt of 27 members appointed as follows:
(Added by stats.], c. 713, p. 1399, j 4.3.) (a) One member by the Division Engineer. United States Army Engineers. South
Library references Pacific Division, from his staff.
Navigable Waters (b) One member by the United States Secretary of Health. Education and Wel-
C.J.S. Navigable Waters 1 10 et sets. fare, from his staff.
86607. Partial Invalidity (c) One member to the Secretary of Business and Transportation, from its staff.
it any provision of this title or the application thereof In any circumstance Or (d) One member by the Director of Finance, from his staff
to any person or public agency Is held invalid, the remainder of this tite or the (e) One member by the Secretary of resources, from his staff.
application thereof in other circumstances or to other persons or public agencies One member by the State Land.- Commission, from its staff.
shall not be affected thereby. (g) One member by the San Francisco Day Regional 'Water Quality Control
(Added by stats. l960, c. 7 13, p. 1399. 4.4.) Board, who shall be of such board.
CHAPTER 2 DEFINITION OF SAN FRANCISCO BAY (h) Nine county representives consisting of one member of the board of super-
visors representative of each of the nine San Francisco Bay area counties, appointed
See by the Ward of supervisors in each county. Each county representative must be
GGII. Fixing find establishing: boundaries of water-oriented priority land uses; a supervisor representing a supervisorial district which Includes within its bound-
bearing; resolution [New]. aries lands lying within San Francisco Bay.
(1) Four city representatives appointed by the Association of Day Area Coverts-
1 66610. Area of Jurisdiction of commission ments front among the residents of the bayside cities In each of the following
For the purposes of this title, the area of jurisdiction of the San Francisco Bay areas: (1) North bay-marin County. sonoma. Napa. and Solana:
Conservation and Development Commission includes: (2) east bayy--Contra Costa County (west of Pittsburg) and Alameda County
(a) San Francisco Ray, being all areas that are subject to tidal action from the north of the southern boundary of Hayward;
south end of the bay if, the Golden Gate point benita Point Lobos and to the
Sacramento River line (a line between Stake Point and Simmons Point extende (3) South bay Ala County south of tile southern boundary of hayward.
northeasterly to the mouth of Marshall Cup including all sloughs and specifically, Santa Clara County and San Mateo County south of the northern boundary
the marshland, lying between mean high tide and five feet above mean sea level; of Redwond City;
tidelands (land lying between mean high title and mean low tide); and submerged (4) West bay-San Mateo County north of tile northern boundary of Red-
land,, (land lying between mean high tide. wood City, City and County of San Francisco.
(b) A shoreline band consisting of all territory located between the shoreline of Each city representative representative must be an elected city official.
San FraniSco Bay as defined in subdivison (a) of this section and a line 100 feet (j) Seven representatives of tile public, who shall he residents of the San Fran.
landward of and parallel with that line. but excluding, any portions of such terri- cisco Day area and whose appointments,, shall be subject to confirmation by. the

Senate. Five of such representatives shall be appointed by the Governor. One by floating at some or all times and moored for extended periods, such as houseboats
the Committee on Rules of Senate and one by the Speaker of the Assembly. and floating docks. For the purposes of this section "materials" means items ex-
(Added by Stats.1969,c. 713,p 1400 3.2.)
Former section 66620 was repealed by Library references eceding twenty dollars ($20) In value.
Stats.1969 c. 713. p. 1400 5.1. Navibable Waters 2 The commission may require a reasonable filing fee and reimbursement of ex-
Derivation: Former section 66620, add. C.J.S. Navigable Waters 10 et seq.
ed by Stats. 1965. c. 1 62. p. 2912 1. expenses for processing and investigating a permit application,
66622. Term; compensation and expenses; designation of alternate (b) Whenever a permit is required by a city or county for any activity also re-
The members of the commision shall serve at the pleasure of their respective ap-
pointing powers. The members shall serve without compensation, but each of the quiring a permit from the San Francisco Bay Conservation and Development Com-
members shall be reimbursed for his necessary expenses incurred In the perform- mission, an applicant for a permit shall file an application with tile city council
ance of his duties. of the city if the proposed project is located in incorporated territory, or the board
A member, subjet to confirmation by his appointing power, may authorize an al- of supervisors of the county, if the proposed project is located in unincorporated
territory. Upon filing such an application the applicant shall notify the commis-
ternate for attendance at meetings and voting in his absence. Each alternate shall sion of the fact of the filing and the date thereof. The city council or tile board of
be designated in a written instrument which shall includ evidence of the cofirma-
supervisors, as the ease may be, shall investigate the proposed project and shall
tion by the appointing power and his name shall be kept on file with the commis- file a report thereon with the commission within 90 days after the application is
sion. Each member may change his alternate from time to time, with the confirma- filed with it.
tion of his appointing power, but shall have only one alternate at a time. Each al- Whenever a permit is not required by a city or county, no application for a per-
ternate shall have the same, qualfications as are required for the, member who ap mit * * *need be made to the city or county.
pointed him, except that each county representative may designate any other mem- (c) Upon receipt of the report from the city council or the board of supervisors,
ber of that county's board of supervisors as his, allternate. as the case may be, or, if the city council or the board of supervisors does not file
(A mended by Stats.1969,c. 713, p. 1401, 6; Stats.1970, c. 1l79, p. 2) a report with the commision within the 90-day period, upon lite expiration of such
90-day period, * * * and upon receipt of an application for a permit made
directly to it, the commission shall hold a public hearing or hearings as to the pro-
posed project and conduct such further investigation as It deems necessary. The
CHAPTER4. POWERS AND DUTIES OF THE COMMISSION commission shall give full consideration to the report of the city council or board
Sec of supervisors.
66630.1 Property which might be acquired by public agencies for public use; (d) The commission shall prescribe the form and contents of applications for
study report (New). permits. Among other things, an application for a permit shall set forth all public
66632.2 Public service facilities; defined; permit not required [New]. Improvements laid public utility facilities which are necessary or incidental to the
66632.3 Application for development of property not acquired for public use [New].
66632.4 Denial of application for proposed project within shoreline bond only proposed project and the names and mailing addresses; of all public agencies or
on ground that project fails to provide maximum feasible public access public utilities who will have ownership or control of such public improvements
[New]. or public utility facilities if the permit is granted and tile project is constructed.
Law Review commentaries The excecutive director shall give written notice of the filing of the application to
San Francisco Bay: Regional regulation
(or its protection and development. (1967) all such public agencies and public utilities. If the commission grants a permit
55 C.L.R. 728 740. for a project, the permit shall Include all public Improvements and public utility
66630. Study facilities which are necessary or detrimentall to the project.
The commission shall make a * * * continuing review of all the matters (e)Upon receipt of an application for a permit the commission shall transmit a
referred to In Section 66603, * * * 66606.3 and Section 66651. copy thereof to the San Francisco Bay Regional Water Quality Control Board.
(Amended by Stats. 1969, a. 713, p. 1401. � 7.) Within 6o days, the board shall file a report with lite commission indicating the
effect of the proposed project on water quality within the bay.
66630.1 Property which might be acquired by public agencies for public use; (f) The commision shall take, action upon * * * an application for* * * a
study; report permit, either denying, or granting the permit, within * * * 90 day after it
The continuing review, among other things, shall include studles concerning receives the report * * *(or, If the city council or the board of supervisors did
properties within the area of the commission's jurisdiction which, in the opinion of not file a report with the commission within the 90-day period, within * * * 90
the commission, might be acquired by public agencies for public use. Based on
such studies the commission shall annually prepare a report, setting forth the days after the expiration of such 90-day period * * *),or * * * within
general location of such properties, the interest or interests proposed to be acquired * * * 90 days after It receives;* * * an application from the applicant,
therein. the public uses recommended therefor, the public agencies recommended whenever date is later. The permit shall be automatically granted If the commis-
to make the proposed acquisitions, the estimated cost of the proposed acquisitions sion shall fall to take specific action either denying or granting the permit within
and recommendations for financing such cost. Each annual report shall cover the time period specified in thi section. A permit* * * shall be granted for a
proposed acquisitios during a three-year period commencing January 1 after the project If the commission finds and declares that the project is either (1) necessary
date of the report and shall indicate any material changes made with respect to to the health, safety or welfare of the public in the entire bay area, or(2)of such
the report for the previous year. Sot later than the fifth legislative day of each a nature that it will* * *be consistent with file provisions of this title and
regular session of the Legislature, commencing with the 1971 Regular Session. the with the provisions of the San Francisco Bay Plan then in effect. To effectuate
commission shall file such report with tile Governor and Legislature. such porposes, the commission may grant a permit subject to reasonable terms
(Added by Stats.1960, c. 713, p. 1401, 7.1.) and conditions including the uses of land or strictires. Intensity of uses construc-
Library references
Navigable Waters 2. tion methods and methods for dredging of placing fill. Thirteen affirmative
C.J.S Navigable Waterss 10 et seq. votes of members of the commission are required to grant a permit. Neither of the
66631. Cooperation and coordination; avoiding duplication of work federal representatives who are members of the commission may vote on whether
in making * * * the review, the commission shall cooperate to the fullest or not a permit shall be granted.
extent posssible with the * * * Association of Bay Area Governments; and Pursuant to this title, the commission * * *may provide by regulation,
* * * shall, to lite fullest extent possible, coordinate its planning * * * with
planning * * * by local agencies, which shall retain the responsibility for local adopted after public hearing, for the issuance of permits by the execitive director,
land use planning. In order to avoid duplication of work, the commission shall without compliance with the above procedure, in cases of emergency, or for minor
make maximum use of data and information available from tile planning pro- repairs * * * to existing Installations or minor improvements made anywhere
grams of the Slate Office of Planning. * * * the Association of Bay Area Gov- within the area of jurisdictiont of the commission including without limitation,
ernments, the cities and counties in the San Francisco Bay area, and other public the installation of the piers and pilling and maintenance dredging of navigation chan-
and private planning agencies. nels. The commission may also adopt after public hearing such additional regula-
(Amended by Stats.1969q,c 713, p. 1401, � 8.) tios as it deems reasonable and necessary to enable it to carry out its functions
1969 Amendment. Rewrote section. Law Review Commentaries
Regulation of San Francisco Bay and efficiently and equitably, including regulations classifying the particular water-
state constitutional problems including orineted uses referred to in Sections 66602 and 66605.
home rule. (1967)55 C.L.R. 757.
(g) If the commission denies the permit, the applicant may submit another ap-
66632. Permits; "fill" and "materials" defined; permits already Issued pplication for the permit directly to the commission after 90 days from the date of
(a) During the existence of San Francisco Bay Conservation and Develop- such denial.
ment Commission, any person or governmental agency wishing to place fill * * * * * *(h) Any project authorized pursuant to this section shall be commenced.
to extract * * * materials * * *or to make andy substantial change in use performed and completed in compliance with file provisions of all permits granted
of any water, land or structure, within the area of the commissions jurisdiction or issued by the commission and by any city or county.
shall secure a permit from the commission and, if required by law or by ordinance, (i) If prior to * * * September 17, 1965, any person or governmental agency
from any city or county within which any part of such work is to be performed.
has already obtained. a permit from the appropriate local body to place fi11 in the
For purpose if the * * * title. "fill" means earth or any other substance or bay or to extract submerged materials from the bay, application may be made
material, Including pilings or structures placed on pilings,* * * and structures directly to the San Francisco Bay Conservation and Development Commission and
the permit from thee local body shall constitute the report of the local body.

(j) ANy section, or procceding to contest or question the commissions denial of a
permit application, or attached to approval of a permit application, must
be in the appropriate court within 90 days following the date of such
action by the commission.
(k) The executive director shall, within 90 days following the effecitive date of
this section, communicate the provisions of this section all governmental bodies
that issue permits for developments described that may fall within the provisions
of this section
(Amended by Stats.1968, e.924. p.1754, 2: Stats.1969 c. 713. p. 1402. 9)
66632.1 Permit from army engineers. Nothing in this title
shall apply to and project where necessary local governmental ap-
proval and a Department of the Army Corps of Engineers permit have
been obtained to allow commencement of the diking or filling process,
and where such diking or filling process has commenced prior to the
effective date of this title, nor to the continuation dredging under
existing Department of the Army Corps of Engineers permits. (Add-
ed Stats.1965, c. 1162,p.2945, 1.)
66632.2 b Public service facilities; defined; permit not required
(a) The owner or operator of any public service facilities need not obtain a
permit from the commission for the construction within or upon any public high-
way or street of any public service facilities to provide service to persons or prop-
erty located within the area of the commission's jurisdiction. The public service
facilities referred to in this subdivision shall be limited to those which are neces-
sary for and are customarily used to provide direct and immediate service to the
persons or property requiring such service.
(b) The owner or operator of public service facilites or a pulbic street or road
located anywhere within the area of the commission's jurisdiction may, without
first obtaining a permit from the commission, make emergency repairs to such
facilities as may be necessary to maintain service, provided, that the emergency is
such as to require repairs before an emergency permit can be obtained under the
provisions of subdivision (f) of Section 66632 and, provided further, that notifica-
tion is given to the commission no later than the first working day following such
undertaking.
(e) "Public service facilities," as used in this section, means any facilities used
or intended to be used to provide water, gas, electric or communications service
and any pipelines, and appartenan facilities, for the collection or transission of
sewage, flood or storm waters, petroleum, gas or any liquid or other substance.
(Added by Stats.1969,c. 713, p. 1404 9.3)
Library referneces
Navigable Waters
C.J.S. Navigable Waters 10 et seq.
66632.4 Denial of application for proposed project within shoreline band only
on grounds that project falls to provide maximum feasible public ac-
cess
Within any portion of portions of the shoreline band which shall be located out-
side the boundaries of water-oriented priority land uses, as fixed and established
pursuant to Section 66611, the commission may deny an application for a permit
for a proposed project only on the grounds that the project falls to provide maxi-
mum feasible pulbic access, consistent with the proposed project, to the bay and its
shoreline.
(Added by Stats.1969, c. 713, p. 1405, 9.7)

Library references
Navigable Waters 2
C.J.S. Navigable Waters 10 et seq.

66633. Acceptance of contributions or appropriations; appolatin committees;
contracts; suits; doing of necessary things
The commission may:
(a) Accept grants, contributions, and appropriations from any public agency, pri-
vate foundation, or individual.
(b) Appoint committees from its membership and appoint advisory committees
from other interested public and private groups.
(c) Contract for or employ any professional services required by the commission
or for the performance of work and services which in its opinion cannot satis-
factorily be performed by its officers and employees or by other federal, state, or
local governmental agencies.
(d) Sue and be sued in all actions and proceedings and in all courts and tribunals
of competent jurisdiction including prohibitory and mandatory injunctions tore-
strain violations of this title.
(e) Do any and all other things necessary to carry out the purposes of this title.
(Amended by Stats.1969, c. 713. p. 1405 10.)
Stats.1969. c. 713. p. .contained no 1969 Amendment. Inserted a new subd.
section II. (d) and changed former subd. (d) to
subd. (e).

66634. Money from federal, state, or local sources; power to
obtain. The commission shall, in addition to any funds which the Leg-
islature may approprite for planning activities of the commission,
take whatever steps anre necessary to attempt to obtain money avail-
able of such planning activities from any federal, state, or local
sources. (Added Stats.1965,c.1162,p. 2945, 1)

66635. Executive director and employees
The commission shall appoint an exective director who shall have charge of
* * * administering the affairs of the commission, subject to the direction and
policies of the commission. The executive director shall, subject to approval of
the commission, appoint such employees as may be necessary in order to carry out
the functions of the commission * * *.
(Amended by Stats.1969.c. 713, p.1406, 12)
1969 Amendment. Rewrote section.
66636. Citizens' advisory committee. Within a reasonable
time, but not to exceed one year from the date of the first meeting
of the commission, the chairman of the commission, in collaboration with
and with the concurrence of the commission, shall appoint a citizens'
advisory committee to assist and advise the commission in carrying
out its functions. The advisory committee shall consist of not more
than 20 members.
At least one member of the advisory committee shall be a repre-
sentative of a public agency having jurisdiction over harbor facilities,
and another shall represent a pulbic agency having jurisdiction over
airport facilities. The advisory committee shall also include repre-
sentatives of conservation and recreation organizations, and at least
one biologist, one sociologist, one geologist, one architect, one land-
scape architech, one representative of an industrial development board
or commission, and one owner of privately held lands within the San
Francisco Bay as defined in Section 66610. (Added Stats.1965, c.
1162, p. 2945, 1)
Chapter 5. THE SAN FRANCISCO BAY PLAN AND FURTHER
REPORTS OF THE COMMISSION [NEW]
Sec.
66650. Short title.
66651. Interim plan for commission.
66652. Change in plan; procedure.
66653. Authority of commission to grant or deny permits; advisory provisions
of plan.
66654. Existing uses; continuation: application to determine nature, etc.
66655. Vested rights under ordinance adopted or permit issued prior to Sept 1,
1969.
66656. Inapplicability of title to project requiring local governmental approval and
Army Corps of Engineers permit.
66657. Just compensation: value: damage; benefits: determination
66658. Powers and duties of commission.
66659. Duration of commission.
66660. Supplemental reports: contests.
66660.1 Planned community development of land already filled as outside juris-
diction of commission.
66661. Supplemental reports; time of filling

Chapter 5 added by Stats.1969, c. 713, p. 1406, 1
Former Chapter 5 repealed by Stats.1969,c. 713, p. 1406 13.

66650. Short title
This title shall be known and may be cited as the McAteer-Fetris Act.
(Added by Stats.1969. c. 713, p. 1406, 14.)

Former section 66659 was amendedy by Library references
Stats.1968. c. 833. p 3 and was re- Navigable Waters 2
pealed by Stats.1959, c. 713. p.1406 13. C.J.S Navigable Waters 10 et seq.

66651. Interim plan for commission
Pursuant to this title the commission has adopted and submitted to the Governor
and the Legislature the San Francisco Bay Plan, a comprehensive plan containing
statements and maps concerning
(a) The objective of the plan:
(b) The bay, as a resource, including findings and recommended policies upon:
fish and wildlife: water pollution: smog and wather: water surface, area and
volume: marshes and mudflats, frest water inflow; dredgina: and shell de-
positis:
(c) The development of the bay and shoreline, including findings and recom-
mended policies upon: economic and population growth; safety of fills; water-
wetlands: transportation: other uses of the bay and shoreline: refuse disposal
sites: public access: appearance and design: and scenic views.
This plan shall constitute an interim plan for the commission (t) until otherwise
ordered by the Legislature, or, (ii) until amended by the commission as provided
in Section 66652.
(Addedy by Stats.1969. c.713, p. 1406, 14.)
Former section66651 was amended by
Stats.1968, c. 853. p. 4,and was re-
pealed by Stats.1969, c, 713. p. 1406 13.

66652. Changes in plan: procedure
The commission at any time may amend, or repeal and adopt a new form of, all
or any part of the San Francisco Bay Plan but such changes shall be consistent
with the findings and declarations of policy contained in this title.
Such changes shall be made by resolution of the commission adopted after public
hearings on the proposed change, of which adecuate shall be

given. If the proposed chance pertains to a policy or standard contained in the 66658. Powers and duties of commission
San Francisco Bay Plan, or defines a water-oriented use referred to in Section Until the termination of the existence of the commission, it shall have all powers
00602 or 66603, the resolution adopting the change shall not be voted upon less than and duties prescribed by Chapters 1 (commencing with Section 66600) to 4 (com-
90 days following notice of hearing on the proposed change and shall require the mencing with Section 66630), inclusive, of this title including, without limitation,
affirmative vote of two-thirds of the commission members. If the proposed change the power to continue or make further studies authorized thereby.
pertains only to a map or diagram contained in the San Francisco Bay Plan, the
resolution adopting the change shall not be voted on less than 30 days following (Added by Stats.1969, c. 713, p. 1406 14.)
notice of hearing on the proposed change and shall require the affirmative vote Library references
Navigable Waters C=2.
of the majority of the commission members. C.J.S. Navigable Waters 10 et seq.
(Added by Stats.1960, c. 713, p. 1400,� 14.)
Former section 66652 was repealed by Library references 66659 Duration of commission
Stats.1969, c. 713, p. 1406. S 13. Navigable Waters
C.J.S. Navigable Waters # it,et seq. The commission shall continue in existence until such time as the Legislature
1 66653. Authority of commission to grant or deny permits; advisory provisions of provides for the termination of the existence of the commission or for the transfer

plan of the commission's functions and duties to some other permanent agency.
If a function or activity is within tile area of the commission's jurisdiction and (Added by Stats. 1969. c. 713, p. 1406, 14.)
requires the securing of a permit, the commission shall exercise its power to grant Library references
or deny a permit in conformity with the provisions of this title and with any pro- Navigable Waters
visions of the plan pertaining to placing of fill, extraction of materials, construc- C.J.S. Navigable Waters 10 et seq.
tion methods and use or change of use of water areas, land or structures. If a 66660. Supplemental reports; contents
function or activity is outside the area of the commission's jurisdiction or does not The commission shall make a supplemental report, or reports, containing all of
require the issuance of a permit, any provisions of the plan pertaining thereto are the following:
advisory only.
(Added by Stats.1969, c. 713, p. 1406, 14.) (a) The results of any continued or further studies made by the commission;
Former section 66653 was repealed by Library references (b) Such other information and recommendations as the commission deems de-
Stats.1969, c. 713. p. 1406, 1 13. Navigable Waters
C.J.S Navigable Waters � 10 et seq. sirable.
(Added by Stats.1969, c. 713, p. 1406, 14.)
66654. Existing uses; continuation; application to determine nature, etc. Library references
Within the area of the commission's jurisdiction under subdivisions (b),(c)and Navigable Waters C=2.

(d) of Section 66610, any uses which are in existence an the effective date of C.J.S.Navigable Waters 10 et seq.
section may be continued, provided, that no substantial change shall be made in 66660.1 Planned Community development on land already filled as outside juris-
such uses except in accordance with this title. diction of commission
Any owner of property devoted to an existing use or uses may file an application Notwithstanding any provision of this title to the contrary, the jurisdiction of
with the commission to determine the nature of such existing use or uses, the ex- the commission, except for the control of fill or extraction of materials shall not
tent of territory then devoted to such use or uses, and such additional territory include the shoreline within a city limit upon which any person or entity has com-
adjacent thereto as may be expected to be reasonably necessary for the expansion menced and performed substantial work for the purpose of establishing a planned
of such use or uses during a period of not to exceed 15 years from the date of community development on land already filled and requiring no additional fill or
filing such application .Not later than 90 days after such filing, the commission extraction, and for which the planning commission approval of the city council
after public hearing shall adopt a resolution making such determination. After has been obtained prior to July 1, 1969.
the adoption of such resolution no permit need be obtained from the commission (Added by Stats. 1969, c. 713, p. 1406, � 14.)
for any of the existting use or uses specified in the resolution or for the expansion Library references
thereof within the territory described in said resolution. Navigable Waters .
(Added by Stats.1000,c. 713, p. 1400, J 14.) C.J.S. Navigable Waters 1 10 et seq.
Library references
Navigable Waters 10 et seq 66661. Supplemental reports; time of filing
C.J.S Navigable Waters 1 10 et seq. The commission shall annually file a supplemental report with the Governor and
66655. Vested rights under ordinance adopted or permit issued prior to Sept. 1, the Legislature by the fifth legislative day of each regular session of the Legisla-
1969 ture commencing not later than the l971 Regular Session.
If, prior to September 1, 1969, any city or county has adopted an ordinance or (Added by Stats. 1969, c. 713, p. 1406, 14.)
issued a permit authorizing a particular use or uses within the areas defined in Library references
subdivisions (b),(c) and (d) of Section 66610, no person who has obtained a vested Navigable Waters C=2.

right thereunder shall be required to secure a permit from the commission, pro- C.J.S. Navigable Waters 1 10 et seq.
viding, that no substantial changes may be made in any such use or uses, except
in accordance with this title. Any such person shall be deemed to have such vested
rights if, prior to September 1, 1969, he has in good faith and in reliance upon
the ordinance or permit commenced and performed substantial work on the use or
uses authorized and incurred substantial liabilities for work and materials neces-
sary therefor. Expenses incurred in obtaining the enactment of an ordinance or
the issuance of a permit shall not be deemed liabilities for work or material.
(Added by Stats.1969,c. 713, p. 1406, J 14.)
Library references
Navigable Waters
C.J.S. Navigable Waters 10 et seq.
66658. Inapplicability of title to project requiring local governmental approval
and Army Corps of Engineers permit
Nothing in this title shall apply to any project where necessary local govern-
mental approval and a Department of the Army Corps of Engineers permit have
been obtained to allow commencement of the diking or filling process, and where
such diking or filling process has commenced prior to September 17, 1965, nor to
the continuation of dredging under existing Department of the Army Corps of En-
gineers permits and any renewals and extensions of such dredging permits.
"Project" shall include the execution or undertaking or assumption of any con-
tractual commitments entered into prior to September 17,1965; if prior to July 9,
1969, the city or county has adopted a long-range general plan in accordance with its
charter, or Sections 65300 to 65306 and specific plans in accordance with Sections
65450 and 65451 and the land uses comply with the general objectives or guidelines
of the San Francisco Bay Plan.
(Added by Stats.1969,c. 713, p. 1406, 14.)
Library references
Navigable Waters .

C.J.S. Navigable Waters 10 et seq.

66657. Just compensation; value; damage; benefits; determination
In eminent domain or inverse condemnation proceedings for any property within
the area of the commission's jurisdiction, In determining "just compensation," as
used In Section 14 of Article I of the California Constitution, or "value,""damage,"
or "benefits," as used in Section 1248 of the Code of Civil Procedure, the Influence
of the San Francisco Bay Plan, in effect at the time of thqe taking or damaging
of the property, upon the value of the property or the interest being valued shall
be inadmissible as evidence and not a proper basis for an opinion as to the value of
the property.
(Added by Stats. 1969, c. 713, p. 1406, 14.)
Library references
Eminent Domain 122 et seq.
C.J.S. Eminent Domain 1 136.

Minnesota Metropolitan Council Act

Minn. Stat. Ann. Ch. 473B (Supp. 1971). agencies and districts. All officers and employers of the metropolitan coun-
CHAPTER 473B. METROPOLITAN COUNCIL[NEW] cil shall serve at the pleasure of the appointing authority in the unclassi-
Sec. Sec. fied service of the state civil service. Rules promulgated by the metropoli-
473B.01 Purpose 473B.06 Administration of Metropolitan tan council shall be in accordance with the administrative procedure pro-
473B.03 Metropolitan council Council visions contained in chapter 15.
473B.03 Advisory committees 473B.07 Special studies and reports Subd.6. Executive director. Upon the recommendation of the chairman
473B.01 Reports 473B.08 Tax levy the metropolitan council may appoint an executive director to serve at his
473B.05 Metropolitan planning Routes through municipalities sce pleasure as the principal operating administrator for the metropolitan
161.171 to 161.177 council. He may be chosen from among the citizens of the nation at large,
and shall be selected on the basis of his training and experience in the field of
473B.01 Purpose municipal and urban affairs.
In order to coordinate the planning and development of the metropolitan Laws 1007, c.806, 2.
area comprising the counties of Anoka, Carver, Dakota, Hennepin, Ramsey, Metropolitan sewer service, sec operations when the governor has ap-
Scott and Washington, it is in the public interest to create an administra- 473C.01 et seq. pointed the members thereof and has
tive agency for that purpose. Operative date. proclaimed the organization of the coun-
Laws 1967, c.896, 1, eff. May 26,1967. Laws 1967, c.896, 9, provides that cil in writing filed in the office of the
Law Review Commentaries Dakota, Hennepin,Ramsey, Scott and the metropolitan council shall commence secretary of state.
Minnesoin's experiment with a metro- Washington; providing for the opera-
politan council. Nov. 1968, 53 minn. Law tion thereof, Laws 1967, c.896. 473B.03 Advisory committees
Review 122. Library references The metropolitan council may establish and appoint persons to advisory
Title of Act: Municipal Corporations 53. committees to assist the metropolitan council in the performance of its duties.
An Act creating a metropolitan coun- C.J.S. Municipal Corporations 106 Members of the advisory committees shall serve without compensation but
cil for the counties of Anoka, Carver, et seq. shall be reimbursed for their reasonable expenses as determined by the
metropolitan council.
Laws 1067, c. 896, 3, eff. May 26, 1967.
473B.02 Metropolitan council
Subdivision 1. Creation. A metropolitan council with jurisdiction in the 473B.04 Reports
metropolitan area consisting of the counties of Anoka, Carver, Dakota, On or before January 15th, of each odd numbered year the metropolitan
Hennepin, Ramsey, Scott and Washington, is created. It shall be under the council shall report to the legislature. The report shall include:
supervision and control of 15 members, all of whom shall be residents of (1) A statement of the metropolitan council's receipts and expenditures by
the metropolitan area. category since the preceding report;
Subd.2. Terms. The first members of the metropolitan council appointed (2) A detailed budget for the year in which the report is filed and the
by the governor shall be appointed as follows: the chairman as provided in following year including an outline of its program for such period;
subdivision 4; four for terms ending the first Monday in January 1969; (3) An explanation of any comprehensive plan adopted in whole or in part
five for terms ending the first Monday in January 1971; and five for terms for the metropolitan area;
ending the first Monday in January 1973. Thereafter the term of each (4) Summaries of any studies and the recommendations resulting there-
member shall be for a term of six years and until his successor is appointed from made by the metropolitan council, and a listing of all applications for
and qualified. federal moneys made by governmental units within the metropolitan area
Subd. 3. Membership. Fourteen members of the metropolitan council submitted to the metropolitan council;
shall be appointed by the governor on a nonpartisan basis, after consulting (5) A listing of plans of local governmental units submitted to the metro-
with all members of the legislature from the area composing the council politan council; and
(6) Recommendations of the metropolitan council for metropolitan area
district for which the member is to be appointed, by and with the advice legislation, including the organization and functions of the metropolitan
and consent of the senate. Each such council member shall reside in the council.
council district which he represents. Council districts consist of combina- Laws 1967, c.896, 4,eff. May 26, 1967.
tions of legislative and representative districts extablished by Extra Session
Laws 1966, Chapter 3, as prescribed herein. Each council district shall be 473B.05 Metropolitan Planning
represented by one member of the council. Council Districts are hereby Subdivision 1. All the powers, duties, obligations and property now vested
created as follows: in or imposed upon the commission established under chapter 473, for the
(1) The first council district consists of legislative district 12, that part metropolitan area, are hereby transferred to, imposed upon, and vested in
of reprresentative district 6A within Dakota county, and representative the metropolitan council as the successor of such commission. At the time of
district 11A, and that part of representative district 11B within Scott county. such transfer the commission established under such laws is abolished.
(2) The second council district consists of legislative districts 8 and 50. Subd. 2. All employees of the commission shall be employees of the metro-
(3) The third council district consists of legislative districts 40 and 57, politan council without interruption of salaries and employee benefits.
and representative district 32B. Laws 1967, c.896, 5, eff. May 26, 1967.
(4) The fourth council district consists of legislative district 33 and repre- 1. In general Only the state treasurer must partici-
sentative districts 18A and 21A. Except for monies controlled by pate in the disbursement of monies
(5) The fifth council district consists of legislative districts 30 and 31 and 473B.06, subd.4, the provisions of chap- which the metropolitan council deposits
representative district 32A. ter 473B.02, permits the deposit of in the state treasury. Id.
(6) The sixth council district consists of legislative districts 29 and 37. monies outside the stat treasury. Op.
(7) The seventh council district consists of legislative districts 27 and 28. Atty. Gen., 8, Oct. 6, 1967.
(8) The eighth council district consists of legislative districts 34 and 35.
(9) The ninth council district consists of legislative districts 36 and 38. 473B.06 Administration of Metropolitan Council
(10) The tenth couoncil district consists of legislative districts 39 and 40. Subdivision 1. General powers. The metropolitan council shall have and
(11) The eleventh council district consists of legislative districts 41 and 42. exercise all powers which may be necessary or convenient to enable it to per-
(12) The twelfth council district consists of legislative districts 43 and 44. form and carry out the duties and responsibilities now existing or which may
(13) The thirteenth council district consists of legislative districts 45 and 46. hereafter be imposed upon it by law. Such powers include the specific
(14) The fourteenth council district consists of legislative districts 47 and 48. powers enumerated in this section.
Subd. 2. Officers and employees. The metropolitan council may prescribe
Subd. 4. Chairman (a) Appointment. The chairman of the metropolitan all terms and conditions for the employment of its officers, employees, and
council shall be appointed by the governor as the 15th voting member there- agents including but not limited to the fixing of compensation, their classifi-
of by and with the advice and consent of the senate to serve at his pleasure. cation, benefits, and the filing of performance and fidelity bonds and such
He shall be a person experienced in the field of municipal and urban affairs policies of insurance as it may deem advisable, the premium for which, how=
with administrative training and executive ability. ever, shall be paid for by the district. Officers and employees of the metro-
(b) Duties. The chairman of the metropolitan council shall preside at politan council, however, are public employees. The compensation and
the meetings of the metropolitan council and shall act as principal executive other conditions of employment of such officers and employees shall not be
officer. He shall organize the work of the metropolitan council, appoint governed by any rule applicable to state employees in the classified service
all officers and employees thereof subject to the approval of the metro- nor to any of the provisions of chapter 15A, unless the council so provides.
politan council, and be responsible for carrying out all policy decisions Those employed by the metropolitan council are members of the Minnesota
state retirement system. Those employed by a predecessor of the metropolitan
of the metropolitan council. His salary and expense allowances shall be council and transferred to it may at their option become members of the
fixed by the metropolitan council. Minnesota state retirement system or may continue as members of the
Subd. 5. Metropolitan council; duties and compensation. The metropoli- public retirement association to which they belonged as employees of the
tan council shall elect such officers as it deems necessary for the conduct of predecessor of the metropolitan council. The metropolitan council shall make
its affairs other than the chairman. A secretary and treasurer need not be the employer's contributions to pension funds of its employees.
members of the metropolitan council. Meeting times and places shall be Subd.3. Consulting contracts. The metropolitan council may contract for
fixed by the metropolitan council and special meetings may be called by a the services of consultants who perform engineering, legal, or services of a
majority of the members of the metropolitan council or by the chairman there- professional nature. Such contracts shall not be subject to the requirements
of. Each metropolitan council member other than the chairman shall be of any law relating to public bidding.
paid a per diem compensation of $35 for each meeting and for such other serv- Subd.4. Gifts and appropriations. The metropolitan council may accept
ices as are specifically authorized by the metropolitan council, and shall be gifts, apply for and use grants or loans of money or other property from the
reimbursed for his reasonable expenses. United States, the state or any person for any metropolitan council purpose
In the performance of its duties the metropolitan council may promulgate and, may enterinto agreements required in connection therewith and may
rules governing its operation, establish committeees, divisions, departments hold, use, and dispose of such moneys or property in accordance with the
and bureaus and staff the same as necessary to carary out its duties and when
specifically authorized by law make appointments to other governmental

- 2 -

terms of the gift, grant, loan, or agreement relating thereto. All moneys of connection therewith, and may accept gits for such purposes as otherwisw
the metropolitan council received pursuant to this subdivision or any other authorized in this section.
provision of law shall be deposited in the state treasury and the amount
thereof is appropriated annually to the metropolitan council for the purposes Subd. 11. Civil defense. The metropolitan council may coordinate civil
of carrying out its duties and responsibilities. defense, community shelter planning within the metropolitan area, accept
gifts for such purposes as otherwise authorized in this section and con-
Subd. 5. Development guide. The metropolitan council shall prepare and tract with local governmental agencies and consultants in connection there-
adopt, after appropriate study and such public hearings as may be neessary, with.
a comprhensive development guide for the metropolitan area. It shall con-
sist of a compilation of policy statements, goals, standards, programs, and Subd. 12. Local governmental participation. The metropolitan council
private, of the metropolitan area. The comprehensive development guide shall may (1) participate as a party in any proceedings originating before the
recognize and encompass physical, social, or economic needs of the metro- Minnesota municipal commission under chapter 414, if the proceedings in-
politan area and those future developments which will have an impact on volve the change in a boundary of a governmental unit in the metropolitan
the entire area including but not limited to such matters as land use, parks area, (2) conduct studies of the feasability of annexing, enlarging, or con-
and open space land needs, the necessity for and location of airports, high- solidating units in the metropolitan area, (3) furnish space and other nec-
ways, transit facilitis, public hospitals, libraries, schools, and other public essary assistance to a metropolitan expeditor assigned to the metropolitan
buildings. area or any part thereof under the Federal Demonstration City Act of
1000,1 on condition that such expeditor files monthly reports with the
Subd. 6. Council review: independent commissions, boards, and agencies. metropolitan council concerning his activities. The metropolitan council
(1) The metropolitan council shall review all long term comprehensive plans shall approve the use of moneys made available for land acquisition to local
of each independent commission, board, or agency prepared for its opera- units of government from the land and conservation fund, the open space
tion and development within the metropolitan area but only if such plan is program of HUD, the natural resources account in the state treasury, if the
determined by the council to have an area-wide effect, a multi community use thereof conforms with the system of priorities established by law as a
effect, or to have a substantial effect on metropolitan development. Each part of a comprehensive plan for the development of parks; otherwise is shall
plan shall be submitted to the council before any action is taken to place the disapprove of the use thereof.
plan or any part thereof, into effect.
(2) No action shall be taken to place any plan or any part thereof, into Subd. 13. Participation in special district activity. The metropolitan coun-
effect until 60 days have elapsed after the date of its submission to the coun- cil shall appoint from its membership a member to serve with the metro-
cil, or until the council finds and notifies the submitting commission, board, politan airports commission, a member to serve with the mosquito control
or agency that the plan is consistent with its comprhensive guide for the commission, a member to serve on the Minneapolis-St. Paul sanitary district
metropolitan area and the orderly and economic development of the metro- or any successor thereof, and may appoint a member to serve on any metro-
politan area, whichever first occurs. If, within 60 days after the date of sub- politan area commission or board authorized by law. Each member of the
mission, the council finds that a plan, or any part thereof, is inconsistent metropolitan council so appointed on each of such commissions shall serve
with its comprehensive guide for the metropolitan area, or any part without a vote.
thereof, it may direct that the operation of the plan, or such part thereof, Laws 1007, c. S06, 6, off. May 20, 1967. Amended by Laws 1960, c. 9, S0,
be indefinitely suspended; provided that the council shall not direct the sus- eff. Feb. 12, 1969.
pension of any plan or part thereof of any sanitary sewer district operating 1 42 U.S.C.A. 3301 et sq.
within the metopolitan area which pertains to the location and construction Metropolitan sewer service, see 1. In general
of a regional sewer plant or plants or the expansion or improvement of the 473C.01 et seq. Only the state treasurer must partici-
present Minneapolis-St. Paul sanitary district treatment plant. An affected 1969 Amendment. Correction our. pate in the disbursement of monies
commission, board, or agency may appeal the decision of the metropolitan Law Review Commentaries which the metropolitan council deposits
council suspending a plan, or part thereof, to the entire membership of the Amendment to incorporation, consoli- in the state treasury. Op.Atty Gen., 8,
metropolitan council for public hearing. If the metropolitan council and the dation, annexation and detachment stat- Oct. 6, 1967.
affected commission, board, or agency are unable to agree as to an adjust- ute. 1970, 54 Minn. Law Review 1952. Except for monies controlled by subd.
ment of the plan, so that it may receive the council's approval, then a record 4 of this section the provisions of
of the disagreeing positions of the metropolitan council and the affected com- 47311.01, permit the deposit of monies
mission, board, or agency shall be made and the metropolitan council shall outside the state tresury. IJ.
prepre a recommendation in connection therewith for consideration and
disposition by the next regular session of the legislature. 473B.07 Special studies and reports
Subdivision 1. The metropolitan council shall engage in a continuous pro-
Subd. 7. Council review; municipallties. Each city, village, borough, and gram of research and study concerning the matters enumerated in this sec-
town, all or part of which lies within the metropolitan area, shall submit to tion.
the metropolitan council for comment and recommendation thereon its long Subd. 2. The control and prevention of air pollution.
term comprehensive plans or any matter which has a substantial effect on Subd. 3. The acquisition and financing of suitable major parks and open
metropolitan area development, including but not limited to plans for land use. spaces within and adjacent to the metropolitan area.
The council shall maintain such plans in its files available for inspection by Subd. 4. The control and prevention of water pollution in the metropolitan
members of the public. No action shall be taken to place any such plan or area in conformity with applicable federal and state laws.
part thereof into effect until 60 days have elapsed after its submission to Subd. 5. The development of long range planning in the metropolitan area
the council. Promptly after submission, the council shall notify each city, but not for the metropolitan area.
village, borough, town, county, or special district which may be affected by Subd. 6. The acquisition of necessary facilities in the metropolitan area
the plans submitted, of the general nature of the plan, the date of submission, waste materail for the metropolitan area and the means of financing such
and the identity of the submitting unit. Political subdivisions continguous to facilities.
the submitting unit shall be notified in all cases. Within ten days after re- Subd. 7. The examination of the tax structure in the metropolitan area
ceipt of such notic any governmental unit so notified may request the coun- and consideration of ways to equalize the tax resources therein.
cil to conduct a hearing at which the submitting unit and any other gov- Subd. 8. Assessment practices in the metropolitan area.
ernmental unit or subdivision may present its views. The council may at- Subd. 9. The acquisition of necessary storm water drainage facilities for
tempt to mediate and resolve differences of opinion which exist among the the metropolitan area and the means of financing such facilities.
participants in the hearing with respect to the plans submitted. Subd. 10. The necessity for the consolidation of common services of local
governmental units and the kind of consolidation most suitable in the public
Subd. 8. Review of federal programs. The metropolitan council shall interest.
review all applications of governmental units, indeependent commissions, Subd. 11. Advance land acquisition for development purposes in the
boaards or agencies operating in the metropolitan area for a loan or grant from metropolitan area and the role of the public in connection therewith.
the United States of America or any agency thereof if review by a regional Subd. 12. All studies shall include recommendations as to the governmental
agency is required by federal law or the federal agency. Each governmental organization, governmental subdivision, or governmental district best suited
unit, indepedent commission, board, or agency, before submitting such an to discharge the poweres recommended.
application to the United States government or an agency thereof shall first Laws 1967, c. 896, 7, eff. May 26, 1967.
transmit the application to the metropolitan council for its comments and
recommendations with respect to whether or not the project proposal is con- 473B.08 Tax Levy
sistent with the comprehensive development guide for the metropolitan area. Sudivision 1. The metropolitan council may levy a tax on all taxable
The comments and recommendations made by the metropolitan council shall property in the counties named in section 473B.02 to provide funds for the pur-
then become a part of the application and if submitted to the United States poses of sections 473B.01 to 473B.08. The tax shall not exceed seven tenths
of America or an agency thereof, such comments and recommendations shall of one mill on each dollar of assessd valuation of all such taxable property,
also be submitted. and shall be levied and collected in the manner provided by section 473.08.
Subd. 9. Data collecton. The metropolitan council in cooperation with Subd. 2. This section applies to taxes levied in 1969 and subsquent years.
other departments and agencies of the state and the regents of the university Laws 1967, c. 596. 8. Amended by Laws 1969, c. 1114, 3.
of Minnesota may develop a center for data collection and storage to be used
by it and other governmental users and may accept gifts as otherwise au- 1969 Amendment. Increased the tax seven tenths of one mill and added
thorized in this section for the purposes of furnishing informtion on such limitation in subd. 1 from one half to subd. 2.
subjects as population, land use, governmental finances, and the like.

Subd. 10. Urban research. Where studies have not been otherwise au-
thorized by law the metropolitan council may study the feasibility of pro-
grams relating but not limited to water supply, refus disposal, surface water
drainage, communication, transportation, and other subjects of concern to
the peoples of the metropolitan area, may institute demonstration projects in

*Council review of County plans has been added to these powers
by amendment during the 1971 session of the Minnesota Legislature.

452-329 O - 72 - 24

Massachusetts Anti-Snob Zoning Law
of 1969

40B Mass. Gen. Laws Ann. ��20-23.

� 19. Exchange of information, etc., between District and Agencle3 � 21. Proceedings Before Board of Zoning Appeals on Comprehensive
and Political Subdivisions of Commonwealth. Application to Build Housing, etc.
There shall be a mutual exchange between the commission and all Any public agency or limited dividenri or nonprofit organization pro-
agencies of the conimoowealth and of each political subdivisioii thereof posing to build low or moderate income housing may submit to the board
within the district, of data, records, and information within their knowl- of appeals, established under section fourteen of chapter forty . A, a
edge and control pertainijig to the district, or to parts thereof which single application to build such housing- in licit of separate applications
may be required for the preparation of programs designed to achieve to the applicable local boards. The board of appeals shall forthwith
the purposes of this chapter. (Added by 1968,663, approved July 18, notify each such local board. as applicable, of the filing of such applica-
1968, effective 90 days thereafter.) tion by sending a copy thereof to such local boards for their reconinienda-
tions and shall, within thirty days of the receipt of such application,
LOW AND 310DERATE INCOME HOUSING hold a public hearing on the same. The board of appeals shall request r,,-
the appearance at said hearing of such representatives of said local
� 20. Definitions and Construction of Terms. boards as are deemed necessary or helpful in making its decision upon
The following words, wherever used in this section and in ..,ctions such application and shall have the same power to issue permits or
twenty-one to tiventy-three. inclusive. shall, unless a different meaning approvals as any local board or official who would otherwise act with
clearly appears from the context. have the following meanings:- respect to such application, including but not limited to the power to
"Low or moderate income housing", any housing subsidized by the attach to said permit or approval conditions and requirements with re-
federal or state government under any program to assist the con- spect to height, site plan, size or shape, or building materials as are
struction of low or moderate income housing -.is defined in the applicable consistent with the terms of this section. The board of appeals. in
federal or state statute, whether built or operated by any public agency making its decision on said application. shall take into consideration the
or any nonprofit or limited dividend organization. recommendations of the local boards and shall have the authority to
"Uneconomic", any condition brought about by any single factoror use the testimony of consultants. The provisions of section seventeen
'es it' of chapter forty A shall apply toall such hearings. The board of appeals
combination of factors to the extent that it mak impossible for a
public agency or nonprofit organization to proceed in building or oper- shall render a decision, based upon a majority vote of said board, withill
ating low or moderate income housing without financial loss, or for a forty days after the terminatipti of the public hearing-and,if favorable to
limited dividend organization to proceed and -till realize a reasonable the applicant. shall forthwith issue a comprehensive permit or approval.
return in building or operating such housing within the limitations set If said hearing is not convened or a decisioii is not rendered within the
by the subsidizing agency of,government oil the. size or character of time allowed, unless the time has been ex'ctided by mutual agreement I
the development or on the amount or nature of the subsidy or on the between the board and the applicant, the application shall be deemed
tenants, rentals and incoine permissible, and without substantially chang- to have been allowed and the comprehensive permit or approval shall
ing the rent levels and unit- sizes proposed by the public, nonprofit or forthwith issue. Any person aggrieved by the issuatice of a compre-
limited dividend organizations. hensivc permit or approval may appeal to the court as provided ill
"Consistent with local needs", requirements and regulations shall be section twenty-one of ch?rpter forty it. (Added by 1909, 774, � 1, ap-'
considered consistent with local needs if they are reasonable in view of proved August 23, 1909, effective 90 days thereafter.)
the regionat need for low and moderate income housing considered with
the number of low income persons ill the city or town affected and the � 22. Review by Housing Appeals Committee of Denial or Conditional
need to protect the health or safety of the occupants of the proposed Grant of Application, etc.
housing or of the residents of the city or town, to promote better site . Whenever all application filed under the provisions of section twenty-
and building design in relation to the surroundings, or to preserve open one is denied, or is granted with such conditions and requircinents as
spaces, and ii such requirements and regulations are applied as equally to make the building or operation of such housing uneconomic. the at)-
-idized houshig. Req
as possible to both subsidized and unsubs uirements plicant shall have the right to appeal to the hutt ing appeals committee
or regulation.-. shall be consistent with local needs when imposed by a in the department of community affairs for a review of the same. Such
board of zoning appeals after comprehensive hearing in a city or town appeal shall be taken xvithin twenty davs after the-date of the notice
where (1) low or moderate income housing exists which is in excess of the decision by the board of appeals @y filing with said committee a
of ten per cent of the housing units reported in the latest decennial statement of the prior proceedings and the reasons upon which the
census of the city or town or oil sites coniprismZ One and one half appeal is based. The committee shall forthwith notify the board of
per cent or more of the total land area. zoned for residential, commercial appeals of the filing of such petition for review and @he latter shall,
or industrial use or (2) the application before the board would result within tell days of the receipt of such notice, transmit a copy of its,
In the commencement of construction of such housing oil sites coin- decision and tile reasons therefor to the committee. Stich appeal shall Ze
prising more than three tenths, of one per cent of such land area or be heard by the committee within twenty days after receipt of the ap-
tell acres, whichever is larger. ill any one calendar year; provided, plicant's statement. A stenographic record of the proceedings shall be
however. that land area, owned by the United States, the commonwealth kept and the commitee shall render a written decision, based upon a
or any political subdivision thereof, the metropolitan district commission majority vote, stating its findings of fact, its conclusions and the reasons
or any public authority shall be excluded from the total land area therefor within thirty days after the termination of the hearing, unless
referred to above when making- such determination of consistency with such time shall have bec;i extended by mutual agreement between the
local needs. committee and the applicant., Sttch.@ecisioti may be reviewed in the
"Local Board",any town or city board of survev, board of health, board superior court in accordance with the provisions of chapter thirty A.
of subdivision control appeals. planning board. @ttilding inspector or the (Added by 1969, 774, 1, approved August 23, 1969, effective 90 days
officer or board having supervision of the construction of buildings.or thereafter.)
the power of enforcing municipal building laws, or city council or
board of selectmen. (Added by 1969, 774, � 1, approved August 23,
1969, effective 90 (lays tliereafter.)

Editorial Note-
Section 3 of the atnendint., act provides as follows-
SEcTior; 3. The provisions of this act are severable and, if any provision shall
be held unconstitutional by any court of competent jurisdiction, the decision of
such court shall not affect or impair any of the remaining provisions.

� 23. Limitation on Issues Before Housing Appeals Committee: Find-
ings; Enforcement of Orders, etc.
The hearinq by the housin- appeals committee in the department of
community affairs sliall be limited to the issue of whether. in the case of
the denial of an application. the decision of the board of appeals, was
reasonable and con.@istent with local needs and, in the case of an ap-
proval of an application with conditions and requirements imposed,
whether such conditions and requirements make the construction or
operation of such housing uneconomic and whether they are consistent
with local necds. If the committee finds. in the case of a denial, that
the decision of tile bonrd of appeals was unreasonable and not consistent
with local needs, it shall vncate such decisimi and shall direct the board
to issue a compreliciisive permit or approval to the applicant. If the
committee finds. in the ca '@e of an approval with conditioais and re-
quirement., imposed. that the decision of the board makes the building
or operation of such housing- uneconomic and is not consistent with
local needs, it sliall order such board to modify- or remove any such
c6ndition or requirement so as to make the proposal no longer un-
economic and to issue any necessary permit or approval; provided, how-
ever, that the committee shall not issue any order that would permit
the building or operation of such housing in accordance with standards
less safe than the applicable L)uilding and site plan requirements of
the federal Housing Administration or the Missachusetts Housing Fi-
nance Agency, whichevcr agency is financially assisting such housing.
Decisions or conditions and requirements imposed by a board of ap-
peals that are consistent with local needs shall not be vacated, modified
or removed by the committee notwithstanding that such decisions or
conditions and requirements have tile effect of making the applicant's
proposal uneconomic.
The housing appeals committee or the petitioner shall have the power
to enforce the orders of the committee at law or in equity in tile superior
court. The board of appeals shall carry out the order of tile hearing
appeals committee within thirty days of its entry and, upon failure to do
so, the order of said committee shall, for all purposes, be deemed to be
the action of said board, unless the petitioner consents to a different
decision or order by such board. (Added by 1969, 774, 1, approved
August 23, 1969, effective 90 days thereafter.)

Maine Site Location of Development Act
of 1970

As Revised Effective September 23, 1971

ARTICLE 6. SITE LOCATION OF DEVELOPMENT 3. No adverse affect on natural environment. The proposed development has
made adequate provision for fitting itself harmoniously into the existing natural
(1970, c. 671, � 2) environment and will not adversely affect existing uses, scenic character, nat-
ural resources or property values in the municipality or in adjoining municipal-
ties.

4. Soil types. The proposed development will be built on soil types which are
See. 481. Findings and purpose suitable to the nature of the undertaking.
The Legislature finds that the economic and social wellbeing of the citizens of 1970, C. 571, � 2
the State of Maine depend upon the location of commercial and industrial devel-
opments with respect to the natural environment of the State: that many de- In case of a permanently installed power generating facility of more than
velopments because of their size and nature are capable of causing 1,000 kilowatts or a transmission line carrying 125 kilovolts or more proposed
damage to the people and the environment in their surroundings; that the loca- to be erected within this State by an electrical company or companies, the pro-
tion of such developments is too important to be left only to the determination posed development, in addition to meeting the requirements of subsections 1 to
of the owners of such developments; and that discretion must be vested in state 4, shall also have been approved by the Public Utilities Commission under
authority to regulate the location of developments which may substantially af- 35, section 13-A.
feet environment. 1971, C. 47G, � 2.
The purpose of this subchapter is to provide a flexible and practical means by
which the State, acting through the Environmental Improvement Commission. At hearings held under this section the burden shall be upon the person pro-
in consultation with appropriate state agencies, may exercise the police power posing the development to affirmatively demonstrate to the Commission that
of the State to control the location of those developments substantially affect- each of the criteria for approval listed in the proceeding paragraphs have been
ing local environment in order to insure that such developments will be located met, and that the public health, safety and genral welfare will be adequately
in a manner which will have a minimal adverse impact on the natural environ- protected.
ment of their surroundings. A complete verbation transcript shall be made of all hearings held pursuant
to this section.
1970, C. 571, 2; 1971, C. 256, � 5.
See. 482. Definitions Within 45 days the Commission adjourns any hearing held under this sec-
As used in this subchapter: tion, it shall make findings of fact and issue an order granting a saying per-

1. Commission. "Commission" means the Environmental Improvement Com- mission to the person proposing such development to contruction the
mission. same as proposed, or granting such permission upon such terms and conditions
as the Commission may deem advisable to protect and preserve the environment
2. Development which may substantially affect environment, "Development
which may substantially affect environment" means any commercial or indus- and the public's health, safety and general welfare.

trial development which requires a license from the Environmental improvement Any person who has notified the Commission, pursuant to section of
Commission, or which occupies a land area in excess of 20 acres, or which con- his intent to create a development substatuary affecting local environment
templates drilling for or excavating natural resources, excluding borrow pits for shall, upon receipt of notice that the Commission has hear-
sand, fill or gravel, regulated by the State Highway Commission and pits of less ing under this section immediately defer or suspend construction or

than 5 acres, or which occupies on a single parcel a structure or structures in with respect to such development until the Commission has issued its order after
excess of a ground area of 60,000 square feet. such hearing.
3. Natural environment of a locality. "Natural environment of a locality" in- 1970, C. 571. � 2.
cludes the character, quality and uses of land, air and waters in the area likely
to be affected by such development, and the degree to which such land, air and See. 301 (1 Part) learning Requirements
waters are free from non-naturaliy occurring contamination.
Whenever the commission is required or empowered to
4. Person. "Person" means any person, firm, corporation or other legal pursuant to any of law such hearings may be held
entity. by the commision or by and member of the
employee or representative of the as the
mine. If the hearings as conducted by a single comm
Sec. 483. Notification required ployer or representative, such commisioner or employer
Any person intending to construct or operate a development which may sub- reports has findings of fact and conclustions to the co
transcript of the hearing and all exhibits. Such fin
stantally affect local environment shall, before commencing construction or op- sions shall a part of record. The commission
eration, notify the Commission in writing, of his intent and of the nature and findings or conciusions when acting upon such record
location of such development. The Commission shall within 14 days of receipt actions issue such orders and make such decisions as if ti had
of such notification, either approve the proposed 1ocation or schedule a hearing ducted the hearing itself
thereon in the manner hereinafter provided.
1971, C. 414
Sec. 484. Hearings; orders; construction suspended
In the event that the Commission determines to bold a hearing on a notifica- Sec. 485 Failure to notify Commision; hearing; injunctions; orders
tion submitted to it pursuant to section 483, it shall hold such hearing within 30
days of such determination, and shall cause notice of the date, time and place The COmmission may at any time with respect to
thereof to be given to the person intending the development and in addition shall menced construction or operation of any development without
give public notice thereof by causing such notice to be published in some news- fied the Commission pursuant to section 458 schedule and
paper of general circulation in the proposed locality, or if none, in the state hearing in the manner provided by section 484 with respect to such
paper; the date of the first publication to be at least 10, and the last publication
to be at least 3, days before the date of the bearing. The commission may request the Attorney General to enjoin andy p
At such bearing the Commission shall solicit and receive testimony to deter- has commercal construction or operation of any development whithout hearting
mine whether such development will in fact substantially affect the environ- first notified the pursuant to section 483. from further construction
ment or pose a threat to the public's health, safety or general welfare. or operation pending such hearing and order. Within 30 days of such request the
Attorney General shall bring an appropriate civil action.
The Commission shall approve a development proposal whenever it finds that:
1. Financial capacity. The proposed development has the financial capacity In the event that the Commission shall issue an order, denygin a person com-
mending construction or operation of any development without first having no-
and technical ability to meet state air and water pollution control standards, has tified the Commission pursuant to section 458, permission to continue wuch con-
made adequate provision for solid waste disposal, the control of offensive odors, struction of it may further order such person to restore the area af-
and the securing and maintenance of sufficient and healthful water supplies. fected by such or operation to its condition prior thereto or as near
2. Traffic movement. The proposed development has made adequate provi- as may be to the satisfaction of the Commission.
sion for loading, parking and traffic movement from the development area, onto
public roads.

- 2 -

Sec 48G. Enforcement
All orders issued by the Commission under this subchapter shall be enforced
by tile Attorney General. If compliance with any order of the Commission is not
had within the time period therein specified, the Commission shall immediately
notify the Attorney General of this fact. Within 30 days thereafter the Attor-
ney General shall bring an appropriate civil action designed to secure compli-
ance with such order.

See. 487. Judicial review

Any person, with respect to whose development the Commission has issued
an order after hearing pursuant to section 484 may within 30 days after notice
of such order, appeal therefrom to the Supreme Judicial Court. Notice of such
appeal shall be given by the appellant to the Commission. The proceedings shall
not be de novo. Review shall be limited to the record of the hearing before and
the order of the Commission. The court shall decide whether the Commission
acted regularly and within the scope of its authority, and whether the order is
supported by substantial evidence, and on the basis of such decision may enter
judgment affirming or nullifying such determination.

488. Applicability
This subchaptor shall not apply to any development in existence or in posses-
sion of applicable state or local licenses to operate or under construction on
January 1, 1970 or to any development the construction and operation of which
has been specifically authorized by the Legislature prior to the effective date
hereof, or to public service corporation transmission lines except transmission
lines carrying 125 kilovolts or more.
1971, C. 571, 2; 1971, C. 476, 3.

Jones Act of 1963 or private water supply or to proper flood control, the department shall
130 Mass. Gen. LaWS Ann. by written order signed by the commissioner impose such conditions
as may be necessary to protect the interests described herein, and the
work shall be done in accordance therewith. The provisions of this
section shall not apply to areas established by the water resources com-
� 27A. Removal, Filling and Dredging of Certain Areas Bordering on mission as flood. plain' zones. Land iied for agricultural pttrpo@;cs shall
Coastal Waters of Commonwealth. be exempt from tile provisions of this section. The provisions of this
No person shall remove, fill or dredge any batik, flat, marsh, meadow sectiorf shall not apply to any work done tinder the provisions of clause
or swamp bordering oil coastal waters without written notice of his (36) of section five of chapter forty, chapter two hundred and fifty-two,
intention to so remove. till or dredge to the board of selectmen I
g i i a town or any special act, The provisions. of this section shall not apply to
or to the appropriate licen@ing authority in a city, to the state depart- inland wetlands which are subject to ail order adopted under section
ment of public works, and to the director of marine fisheries. Said forty A, nor to inland wetlands inimediately contiquous thereto unless
notice shall be sent by registered mail at least fourteen days prior to 7
any such removing, filling or dredging. The selectmen or, in the case such contiguous wetlands had been subject to such ail order which was
of a city, the licensitiq authority, sliall hold a hearing on said proposal, thereafter revoked by reason of tile objection of the owner. The com-
within ten days of the receipt of said notice, and shall notify by mail missioner may, by rule or regulation, exempt from this section such other
the person intending to do sticli removing, fiLiling or dredging, tile depart- use as he may deem not inconsistent .vith tile purposes of this section.
ment of public works and the director, of tile tinie and place of said Tile superior court shall have jurisdiction in equity to restrain a con-
hearing. Tile selectinen or licensing atithority, as the case may be, tinuing violation of this section. (Added by 1967, 802, � 1, approved
may recommend tile itistallation of such bulkheads, barriers or other Dec. 20, 1967, effective, by act of Governor, Dec. 21, 1967 ; amended by
protective nicasures 31 may protect tile public interest. If the depart- 1968, 444, � 2, approved June 26, 1968, effective 90 days thereafter.)
ment of public work-, finds that such proposed removing, filling or dredg-
ing would violate the provisions of sections thirty and th?rty A of
chapter ninety-one, it shall proceed to enforce the provisions of said Coastal Wetlands ACt Of 1965
sections. If tile area on which the proposed work is to be done con6itls 130 Mass. Gen. Laws Ann.
shellfish or is necessary to protect marine fisherics, tile said director
may impose such conditions oil said propos@d work as lie may detcr-
mine necessary to protect such shellfish or marine fisheries, and work � 105. Protection of Coastal Wetlands.
shall be done iubject thereto. The commissioner, with the approval of the board of natural re-
Whoever violates any provision of this section shall be punished sources, may from time to time, for the purpose of promoting the
by a fine of not more than one hundred dollars or by iniprisonnictit public safety, health and welfare, and protecting public and private
for not more than six months, or both. anti tile sus)crior court shall property, wildlife and marine fisheries, adopt, amend, modify or repeal
ll,lve jurisdiction in equity to restrain a continuing violation of this orders regulating, restricting or prohibiting dredging, filling, removing
section. or otherwise altering. or polluting, coastal wetlands. In this section the
This section shall not affect or regulate the ordinary and usual work term "coastal wetlands" shall mean any bank, marsh, swamp, meadow,
of any mosquito control project operating tinder chapter two hundred flat or other low land subject to tidal acdon or coastal storm flowage
and fifty-two, or under tile provisions of a special act. (1963, 426, and such contiguous land as the commissioner reasonably deems neces-
approved May 22, 1963, effective by act of Governor, May 22, 1963.) sary to affect by any such order in carrying out the purposes of this
section.
The commissioner shall, before -adopting, amending, modifying or
repealing any such order, hold a public hearing thereon in the munici-
pality in which the coastal wetlands to be affected are located, giving
Hatch ACt Of 1965 notice thereof to the state reclamation board, the depapment of public
works and each assessed owner of such wetlands by mail at least twenty-
131 Mass. Gen. Laws Ann. one days prior thereto.
Upon the adoption of any such order or any order amending, modifying
or repealing the same, the commissioner shall cause a copy thereof.
40. Protection of Flood Plains. together with a plan of tile lands affected and a list of the assessed owners
I lo'f such lands, to be recorded in tile proper registry of deeds or, if such
A person shall not remove, fill or dredge any batik, flat, marsh. meadow lands are registered, in the registry district of the land court, and shall
or swamp bordering oil any inland waters without filing written notice
mail a copy of such order and plan to each assessed owner of such lands
of his intention to so remove, fill or dredge, including such plans as affected thereby. Such orders shall not be subject to the provisions of
may be necessary to describe such proposed activity, with the board chapter one hundred and eiglity-four. Any person who violates any
of selectmen in a town or the mayor of a city, and with tile s ate such order shall be punished by a fine of not less than ten nor more than
departments of public works arid nattiril resources. Such notice shalt fifty dollars, 'or by imprisonment for not more than one month, or by
be sent by registered mail at least thirtv davs prior to anv such removing, both such fine and imprisonment.
filling or dredgiriq. The selectmen or mayor, as the case may be, shall
hold a public hearing on said proposal within fourteen days .of the re- The superior court shall have jurisdiction in equity to restrain viola-
ceipt of said notice, ,and shall notifv bv mail the person .intending to tions of stitch Orders.
do such removiiig, fillitiq or dredging, and the said state departments Any person having a recorded interest in land affected by any such
of the time ane place of said hearing. The selectmen or mayor may order, may, within ninety days after receiving notice thereof, petition
recommend such protective nicastires as may protect the public interest. the superior court to determine whether such order so restricts the tise
The selectmen or mayor. within seven daYs thereafter. shall transmit of his property as to deprive him of the practical uses thereof and is
such recommendations to tile commissioner of natural resources, but therefore ail unreasonable exercise of the police power because the order
the failure to do so shall not delay the issuance of an order by the constitutes tile equivalent of a taking without comperisation. If the
commissioner. The department of public works shall determine whether court finds the order to be ail unreasonable exercise of the police power,
as aforesaid, the court shall enter a findint
the proposed activity wotild violate at, y provisions ot chapter ninety-one g that such order shall not
and shall take stich action as mav be necessarv to enforce such provi- apply to the land of the petitioner: provided, however, that such finding
-hich the proposed wori is to be done is de
sions. If the area oil %% ter- shall not affect any other land than that of the petitioner. The commis-
mined by the department of natural resources to be essential to public sioner shall cause a copy of such finding to be recorded forthwith in the

'proper registry of deeds or, if the land is registered, in the registry by certified mail a copy of such order and plan to each assessed owner
district of the land court. The method provided in this paragraph for of land affected and to the clerk and board of assessors of each city or
the determination of the issue of whether any such order constitutes a town in which the land is located. Such order shall not be subject to
taking without compensation shall be exclusive, and such issue shall i:he provisions of chapter one hundred and eighty-four. The superior
not be determined in any other proceeding, nor shall any person have a court shall have jurisdiction in equity to enforce, and remedy violations
right to petition for the assessment of damages under chapter seventy- of, such orders.
nine by reason of the adoption of any such order. Any person having, at the time of said recording, a recorded interest
The department may, after a finding has been entered that such in land subject to the order may, within ninety days of receiving notice
order shall not apply t@ certain land as provided in the preceding para- thereof, object to the order by apphinIg to the department by certified
graph, take the fee or any lesser interest in such land in the name of mail to amend or repeat the order in so far as it applies to his interest or
the commonwealth by eminent domain under the provisions of chapter to purchase all or part of his interest. An heir, devisee or the personal
seventy-nine and hold the same for the purposes set forth in this section. representative of any person who had at the time of his death a right
. No action by the commissioner or the department under this section to apply may exercise said deceased person's right within ninety days
shall prohibit, restrict or impair the exercise or performance of the of receiving notice of such order. The commissioner shall, within ninetv
powers and duties conferred or imposed by law on the department of days of receiving any such objections,. repeal the order in so far as it
public works, the state reclamation board or any mosquito control. or applies to any such interest in land to which the applicant demonstrates
other project operating under or authorized by chapter two hundred and that he has title unless the commissioner to the satisfaction of the appli-
fifty-two, cant amends the order or purchases all or part of the applicant's in-
No order adopted hereunder shall apply to any area under the control terest therein. In addition to all other remedies the applicant shall have
of the metropolitan district commission. (Added by 1965, 768, � 1, a right to appeal under the provisions of section fourteen of chapter
approved, with emergency preamble, Nov. 23, 1965.) thirty A any adverse determination of title by the commissioner. The
method provided in this paragraph for objectin.Z to an order shall be
exclusive and the validitv of any order adopted hereunder shall not be
contested in any other proceeding or by anv other person. No person
shall have a right to petition for damages bv reason of any such order;
provided, however, that if there is a taking by eminent domain as here-
inafter provided, he may recover damages under chapter seventy-nine.
Inland Wetlands Act of 1966 No such order shall prohibit. restrict or regmlate the use- or improve-
131 Mass. Gen. Laws- Ann. ment of land or water for agricultural purposes without the written
consent of the owner, provided, however, that any subsequent nonagri-
cultural use of land which was filled or drain4 for agricultural PUT-
poses at a time when said land was subject to an order under this
� 40A. Protection of Inland Wetlands.
The commissioner of natural resources,- with the approval of the section may be regulated, restricted or prohibited by such order. No
board of natural resources, mav from time to time, for the purpose of such order shall prohibit, restrict or regulate the exercise or perform-
ance of the powers and duties conferred or imposed by law upon the
promoting the public safety, health and welfare, and protecting public
and private property, wildlife, fisheries, water resources, flood plain department of public health, the department of public works, the metro-
politan, district commission, the division of fisheries and game, the
areas and agriculture. adopt, amend or repeal orders regulating, restrict-
ing or prohibiting dredgir, Massachusetts aeronautics commission. or the state reclamation board,
@, filling, removing or otherwise altering or
polluting inland wetlands. In this section the term "inland wetlands" or any mosquito control or other project operating under or -authorized
by chapter two hundred and fifty-two. If after following the pro-
shall mean any marsh or swamp bordering on inland waters or that
portion of any bank which touches any inland waters, or any marsh or cedures hereinbefore set forth, no such order has become effective as
swamp subject to flooding by fresh water. to any particular land or interest therein. the department may. subject
to a specific appropriation for the purpose, take such land or interest
The commissioner shall. before adopting any such order, hold a public therein by eminent domain. or may acquire the same by purchase, gift
hearing thereon in the city or town in which the inland wetlands to be or otherwise. Awards of damage;. expenses of acquisitlion of land anO
affected are located, giving notice thereof to the state reclamation board, water, and expenses incidental thereto and to the preparation of maps
the department of public works, the department of public health, the and plans of the lands to be affected, to the holding of hearings. and
metropolitan district commission, the selectmen, conservation cominis- to the adoption and recording of orders as provided in this sectior.
sioners and assessors of each such town, the mayor, @ity council, ton-
servation commissioners and assessors of each' such citv , and each may be paid out of funds made available for the purpose of section
assessed owner of such wetlands bv certified mail at least twenty-one f.liree of chapter one hundred and thirty-two A.
days prior thereto. For the purpose's of this section the person to whom The exercise of the power of eminent domain under the provisions
the land was assessed in the last preceding annual tax levy shall be 4 this section shall be subject to the approval of the board of nat-tral
deemed to be the assessed owner thereof, and the notice shall be ad- r'sources, the governor and the executive council. (Added by 1968, 444.
dressed in the same manner as the notice of such tax levy, unless a differ- � 1, approved June 26, 1969, effective 90 days thereafter.)
ent owner or a different address is known by the commissioner to be the
correct one in which case the notice shall be so addressed. No order shall
be adopted unless and Until it is approved by the selectmen or city council
of the town or city in which said wetlands are located; provided that
if the selectmen or the city council fail to approve or disapprove such
proposed order within thirty days after receipt of a written request from
the commissioner such order @hall be deemed to have been approved;
and provided further,'that if such order is so disapproved the commis-
sioner may, after the expiration of one year from the date of such dis-
approval, adopt such order.
Upon the adoption of any sucu oruer or any order amending or re-
pealing the same, the commissioner shall cause a copy thereof, together
with a plan of the l-knds affected and a list of the assessed owners of
such lands. to be recorded in the registry of deeds or the office of the
assistai-it recorder for the district wherein the land ties, and shall send

Wisconsin Shoreland Zoning Law

Wis. Stat., Ann. Ch. 5.9.971, 144.26 (Supp. 1.970)

,59.971 Zoning of shorelands on navliga- 144.26 Navirable waters protection law. (5) (a) The department shall prepare a com-
i 11 prchensive plan as a guide for the application of
ble waters. (1) To effect the purposes of s. (i) To aid in the fulfillment of the state's role as
144.26 and to promote the public health, safety trustee of its navigable waters and to promote inunicipal ordinances regulating navigable wa-
and general welfare, counties may, by ordl:- public health. sallety, convenience and general ters and their shorelands as defined in this see-
welfare, it is declared to be in the public interest tign for the preventive control of pollution. The
nance enacted separately from ordinances pur- to make studies, establish policies. make plans plan shall be based on a use classification of
suant to s. 59.97, zone all lands (referred to ble waters and their shorelands through-
herein as shorelands) in their unincorporated and authorize municipal shoreland zoning regu.. naviga
areas within the following distances from the lations for the efficient use, conservation, devel- out the state or within counties and shall be
normal high-water elevation of navigable %va- opment and protection of this state's water governed by the following general standards:
ters as defined in s. 144.26 (2) (d): 1,000 feet resources. The regulations shall relate to lands 1. Domestic uses shall be generally preferred.
under, abutting or lying close to navigable wa- 2. Uses not inherently. a source of pollution
from a lake, pond or flowam 300 feet from a tcrs. The purposes of the regulations shall be to within an area shall be preferred over uses that
river or stream or to the landward side of the further the maintenance of safe and healthful ire or may be a pollution source.
flood plain, whichever distance is greater. If the conditions; prevent and control water pollution: 3. Areas in which the existing or potential
navigable water is a glacial pothole lake, the rotect spawning grounds, fish and aquatic life; economic value of public, recreational or similar
distance shall be measured from the high water- p
control building sites, placement of structure uses exceeds the existing or potential economic
mark thereof. and land uses and reserve shore cover and natu- value ofany other use shall be classified primar-
(2) (a) Except as otherwise specified, all provi- ral beauty. ily on the basis of the higher economic use value.
sions of s. 59.97 apply to ordinances and their (2) In this section, unless the context clearly 4. Use locations within an area tending to
amendments enacted under this section, but requires otherwise:
they shall not require approval or be subject to minimize the possibility ofpollution shall be pre-
(a) "Subcommittee" means the water subcom- ferred over use locations tending to increase that
disapproval by any town or town board. mittec of the natural resources council of state possibility.
(b) If an existing town ordirince relating to agencies.
shorelands is more restrictive than an ordinance 5. Use dispersions within an area shall be pre-
(c) "Municipality" or "municipal" means a ferred over concentrations of uses or their unclue
later enacted under this section alTecting the :ounty, village or city.
same shorclands, it continues as a town ordi- 1. proximity to each other,
(d) "Navigable water" or "navigable waters
nance in all respects to the extent of the greater means Lake Superior, Lake Michigan, all natu- (b) The department shall apply to the plan the
restrictions, but not otherwise. ral inland lakes within Wisconsin and all stalidards and criteria set forth in sub. (6).
(c) Ordinances enacted under this section streams. ponds, sloughs, flowages and other wa- ,, (6) Within the purposes ofsub. (1) the depart-
shall accord and be consistent with any compre- ters within the territorial limits of this state, in- ment shall prepare and provide to municipalities
hensive zoning plan or general zoning ordinance cluding the Wisconsin portion of boundary general recommended standards and criteria for
applicable to the enacting counties, so far as waters, which are navigable under the laws of navigable water protection studies and planning
practicable. this state. and for navigable water protection regulations
(3) All powers granted to a county under s. (e) "Regulation" refers to ordinances cnacted and their administration. Such standards and
236.45 may be exercised by it with respect to under ss. 59.971 and 62.23 (7) and means shore- criteria shall give particular attention to safe and
shorelands, but it must have or provide a plan- land subdivision and zoning regulations which healthful conditions for the enjoyment of.
ning agency as defined in s. 236-02 (1). include control of uses of lands under, abutting aquatic recreation; the demands of water traffic.
(4) (a) Section 66.30 applies to this section, or lying close to navigable waters for the pur- boating and water sports; the capability of the
except that for the purposes of this section any poses specified in sub. (1), pursuant to any of the water resource; requirements necessary to assure
agreement under s. 66.30 shall be effected by zoning and subdivision control powers delegated proper operation of septic tank disposal fields
ordinance. If the municipalities as defined iri s. by law to cities, villages and counties. near navigable waters; building setbacks from
144.26 are served by a regional planning com- (f) "Water resources," where the term is used the water-, preservation of shore growth and
mission under s. 66.945, the commission may, in reference to studies. plans, collection of publi- cover; conservancy uses for low iying lands;
with its consent, be eimpowered by the ordinance cations on water and inquiries about Water. sborelpnd layout for residential and commercial
or agreement to administer each ordinance en- means all water whether in the air, on the earth's development; suggested regulations and sugges-
acted hereunder throughout its enacting munici- surface or under the earth's surface. "Water re- tions for the effective administration and en-
pality, whether or not the area otherwise served sources" as used in connection with the regula- forcement of such regulations.
by the commission includes all of that munici- tory functions under this section means (7) The department, the municip@dities and all
pality. * navigable waters. state agencies shall mutually co-operate to ac-
(b) Variances and appeals regarding shore- (g) "Shorelands" means the lands specified complish the objective of this section. To that
lands within a county are for the board ofadjost- under par. (e) and s. 59.971 (1). end, the department shall consult with the gov-
ment for that county under s. 59.99, and th@ (3) (a) The subcommittee shall serve in an ex erning bodies of municipalities to secure volun,
procedures, of that section apply. tary uniformity of regulations, so far as Q7F
(5) An ordinance enacted under this section officio advisory capacity to the department and p .racticable, and shall extrnd all possible assist-
supersedes all provisions of an ordinance en- provide a liaison function whereby the several ance therefor.
state agencies may better co-ordinate their ac-
acted under s. 59.97 that relate to shorelands. tivitics in managing and regulating water rc- (8) This section and s. 59.971 shall be con-
I J@) Ifany county does not adopt an ordinance sources. strued together to accomplish the purposes and
q January 1, 1963, or if the department ofnatu- (b) The department shall make studies, estab- objective of this section,
ral resources. after notice and hearing, deter- fish policies and make plans for the efficient use, (9) Sections 30.50 to 30.80 are not affected or
mines that a county has adopted an ordinance superseded by this section.
conservation, development and protection of the
which fails to meet reasonable minimum stand- state's water resources and: . (10) A person aggrieved by an order or deci-
ards in omplishing the shoreland protection 1. On the basis ofthese studies and plans make sion of the -department under this section may
acc
objectives of s. 144-26 (1), the department of recommendations, through the subcommitim cause its review under ch. 227.
natural resources shall adopt such an ordinance.
As far as possible, s. 87.30 shall apply to this to existing state agencies relative to their water
subsection. resource activities;
2. Locate and maintain information relating
to the state's water resources. The department
shall collect pertinent data available from state,
regional and fcdcral agencies, the university of
Wisconsin, local units of government and other
sources.
3. Serve as a clearinghouse for information
relating to water resn'Urces including referring
citizens and local units of government to the
appropriate sources for advice and assistance in
connection with particular water use problems.

Executive Order No. 11371, 9/6/67 Water Resources Planning Act of
as amended by Executive Order No. 1965 1965
11528, 4/24/70

New England River Basins Commission 42 U.S.C. ��1962, et. seq.

EXECUTIVE ORDER NO. 11371
Sept. 6, 1967, 82 F.R. 12903 SUBCHAPTER I.-WATER RESOURCES COUNCIL
ESTABLISHMENT OF NEW ENGLAND RIVER BASINS COMMISSION
WHEREAS the Water Resources Plan- tion of the New England River Basins 1962a. Establishment; composition; other Federal agen-
ning Act thereinafter referred to as the Commission referral to in section 3 of cy participation;; designation of Chairman
Act, 79 Stat. 944, 42 U.S.C 1962 et seq.) this order (hereinafter referral to as the
(this chapter) authorize the President to Commission) shall extend to the area of There is hereby established a Water Resources Council (herein
declare the establishment of a river ba- the six New England States of Maine, after referred to as the "Council") which shall be composed of the
sin water and related land resources New Hampshire, Vermont, Massachusetts, Secretary of the Interior, the Secretary of Agriculture, the Secretary
commission when a request for such a Connecticut, and Rhode Island, together of the Army, the Secretary of Health, Education, and Welfare, and
commission is addressed in writing to with that portion of the State of New the Chairman of the Federal Power Commission. The Chairman of
the Water Resources Council (hereinafter York within the drainage area of the the Council shall request the heads of the Federal agencies to par-
referred to as the Council) by the Gover- Monsatogic River, but specifically ex- ticipate with the Council when matters affecting their responsi-
nor of a State within which all or part cluding those portions of the States of bilities are considered by the Council. The Chairman of the Council
of the basin or basins concerned are lo- Vermont and Massachusetts within the shall be designated by the President.
cated and when such a request is con- drainage area of the Hudson River and
curred in by the Council and by not less excluding also that portion of the State 1962a-1. Powers and duties
than one-half of the States within which of Vermont within the drainage area of The Council shall--
portions of the basin or basins concerned Lake Champlain, in accordance with the
are located; and request of the Governer of the State of (a) maintain a continuing study and prepare an assessment
WHEREAS the Council, by resolution Maine, concurred in by the Governors of biennially, or at such less frequent intervals as the Council may
adopted October 14, 1965, concurred in the other New England States and New determine, of the adequacy of supplies of water necessary to
the request of the Governor of the State York, and in accordance with the resolu- meet the water requirements in each water resource region in
of Maine, as Chairman of the New Eng- tion of the Council. the United States and the national interest therein; and
land Governors' Conference, and did itself
request that the President declare the es- Sec. 3. Membership of Commission. It (b) maintain a continuing study of the relation of regional or
tablishment of the New England River is hereby determined that, in accordance river basin plans and programs to the requirements of larger
Basins Commission under the provisions with section 202 of the Act (section 1962b regions of the Nation and of the adequacy of administrative and
of section 201 of the Act [this section]: --1 of the title) the Commission shall statutory means for the coordination of the water and related
and consist of the following: land resources policies and programs of the several Federal
WHEREAS the request of the Governor agencies; it shall appraise the adequacy of existing and pro-
of the State of Maine and the resolution (1) a Chairman to be appointed by the posed policies and programs to meet such requirements; and
of the Council of October 14, 1965, togeth- President, it shall make recommendations to the President with respect to
er with written concurrences by the Gov- (2) one member from each of the fol- Federal policies and programs.
ernors of the States of Maine, New lowing Federal departments and agen-
Hampshire, Vermont, Massachusetts, cies: Department of Agriculture, Depart- Pub. L. 89-80, Title I, 102, July 22, 1965, 79 Stat. 245.
Connecticut, Rhode Island, and New ment of the Army, Department of Com-
York, satisfy the formal requirements of merce, Department of Health, Education Historical Note
section 301 of the Act [this section]: and and Welfare, Department of Housing Legislative History, For legislative 1965 U.S. Code Cong. and Adm. News, p.
WHEREAS it appears that it would be and Urban Development, Department of history and purpose of Pub. L. 89-80, see 1971.
in the public interest and in keeping Interior, Department of Transporta-
with the intent of Congress to declare tion, and Federal Power Commission, 1962a--2. Establishment of principles, standards, and
the establishment of such a Commission: each such member to be appointed by procedures for preparation of regional or
the head of each department or inde- river basin plans and Federal projects; re-
NOW, THEREFORE, by virtue of the pendent agency he represents. vision of river basin planning commission
authority vested in me by section 201 of plans
the Act [this section] and as Presiden (3) one member from each of the fol-
of the United States, it is ordered as lowing States: Maine, New Hampshire, The Council shall stablish, after such consultation with other
follows: Vermont, Massachusetts, Connecticut, interested entities, both Federal and non-Federal, as the Council may
Rhode Island, and New York, and find appropriate, and with the approval of the President, principles,
Section 1. New England River Basins standards, and procedures for Federal participants in the prepara-
Commission. It is hereby declared that (4) one member from each interstate tion of comprehensive regional or river basin plans and for the
the New England River Basins Commis- agency created by an laterstate compact formulation and evaluation of Federal water and related land re-
sion is established under the provisions to which the consent of Congress has sources projects. Such procedures may include to be proposed in any
of Title II of the Act [this subchapter]. been given and whose jurisdiction ex- plan or revision thereof being prepared by a river basin planning
tends to the waters of the area specified commission.
Sec. 2. Jurisdiction of Commission. in section 2.
It is hereby determined that the jurisdic- Pub. L. 89-80, Title I, 103, July 22, 1965, 79 Stat. 245.
ters, and employees are hereby author- Sec. 4. Functions to be performed.
ized to perform and exercise, with respect The Commission and its Chairman, mem- Historical Note
to the jurisdiction specified in section 2 ber International Joint Commission,
of this order, the functions, powers, and United States and Canada. The Council Economic Evaluation of Water Resources navigation features of water resource
duties of such a Commission and of such shall consult on these matters as ap- Projects; Inclusion of Secretary of projects, sec section 1G3G(a) of Title 40,
Chairman, members, and employees, re- propriate with the Department of State Transportation on Council. Development Transportation.
spectively, as set out in Title II of the and the International Joint Commission of standards and criteria for economic Act [this subchapter]. through its United States Section for the
purpose of enhancing international coordi- evaluation of water resource projects by Legislative History. For legislative
nation. Council and Inclusion of Secretary of history and purpose of Pub. L. 89-80, sec
Sec. 5. International coordination. The Sec. 6. Reporting to the President. Transportation on the Council during 1963 U.S.Code Cong. and Adm. News, p.
Chairman of the Commission is here- The Chairman of the Commission shall consideration of matters concerning the 1921.
by authorized and directed to refer to report to the President through the
the Council any matters under considera- Council.
tion by the Commission which relate to Lindon B. Johnson 1962a--3. Review of river basin commission plans; re- the areas of interest or jurisdiction of
port to President and Congress
EXECUTIVE ORDER NO 11317
Sept. 6m 1967, 32 F.R. 12903, as amended by Ex. Ord. No. 11528, Apr. 24, 1970, 35 F.R. 6695 Upon receipt of a plan or revision thereof from ny river basin
commission under the provisions of section 1962b--3(3) of this title,
Sec. 2. Jurisdiction of Commission. accordance with the request of the Com- the Council shall rview the plan or revision with special regard to--
(a) It is hereby determined that the juris- mission, and is concurred in by the Water
diction of the New England River Basins Resources Council and by the Governors (1) the efficacy of such plan or revision in acheiving optimum
Commission referred to in section 1 or this of the States within the jurisdiction of the use of the water and related land resources in the area involved;
order (hereinafter referred to as the Com- Commission.
mission) shall extend to an area composed Sec. 3. Membership of Commission. It (2) the effect of the plan on the achievement of other pro-
as follows: is hereby determined, in accordance with grams for the development of agricultural; urban, energy, in-
(1) The State of Maine. section 202 of the Act (section 1962b--1 of
(2) The State of New Hampshire. this title), that the Commission shall con-
(3) The State of Vermont, excluding sist of the following:
that portion thereof which is within the (1) a Chairman to be appointed by the
drainage area of the Hudson River and President,
excluding also that portion thereof which (2) one member from each of the follow-
is within the drainage area of Lake Cham- ing Federal departments and agencies:
plain. Department of Agriculture, Department of
(4) The State of Massachusetts, exclud- the Army, Department of Commerce, De-
ing that portion thereof which is within partment of Health, Education, and Wel-
the drainage area of the Hudson River. fare, Department of Housing and Urban
(5) The State of Connecticut. Development, Department of the Interior,
(6) The State of Rhode Island. Department of Transportation, Atomic
(7) (1) That portion of the State of New Energy Commission, and Federal Power
York which is within the drainage area of Commission, each such member to be ap-
the Housatonic River, nd (ii) that por- pointed by the head of each department or
tion of Long Island excluding New York independent agency he represents,
City) in the State of New York which is (3) one member from each of the follow-
within the drainage area of Long Island ing States: Maine, New Hampshire, Ver-
Sound, and mont, Massachusetts, Connecticut, Rhode
(8) Long Island Sound except the por- Island, and New York, and
tion thereof which lies west of a line ex- (4) one member from each interstate
tended from the Connecticut-New York agency created by an interstate compact
boundary at the northern shore of the to which the consent of Congress has been
Sound to the New York City-Nassau given and whose jurisdiction extends to
County boundary at the southern shore of the waters of the area specified in section
the Sound. 2.
(b) The determination set forth in
subsection (a) of this section is made in

dustriall, recreational, fish and wildlife, and other resources of (c) One member from each State which lies wholly or partially
the entire Nation; and within the area. river basin, or group of river basins for which the
(3) the contributions which such plan or revision will make commission is established, and the appointment of each such member
In obtaining the Nation's economic and social goals. shall be made in accordance with the laws of the State which he
Based on such review the Council shall- represents. In the absence of governing provisions of State law,
(a) formulate such recommendations as it deems desirable such State members shall be appointed and serve at the pleasure of
in the national interest; and the Governor;
(b) transmit its recommendations, together with the plan or (d) One member appointed by any interstate agency created by
revision of the river basin commission and the views, comments; an interstate compact to which the consent of Congress has been
and recommendations with respect to such plan or revision sub- given, and whose jurisdiction extends to the waters of the area, river
mitted by any Federal agency, Governor, interstate commission, basin, or group of river basins for which the river basin commission
or United States section of an international commission, to the is created;
President for his review and transmittal to the Congress with (e) When deemed appropriate by the President, one member, who
his recommendations in regard to authorization of Federal shall be appointed by the President, from the United States Section of
projects. any international commission created by a treaty to which the coil-
Pub.L.89-80, Title I. � 104. July 22 1965. 79 Stat. 245. sent of the Senate has been given, and whose jurisdiction extends to
SUBCHAPTER II-RIVER BASIN COMMISSIONS the waters of the area, river basin, or group of river basins for which
the river basin commission is established.
1962b. Creation of commissions; powers and duties Pub.L. 89-80, Title II, � 202, July 22, 1965, 79 Stat. 247.
(a) The President is authorized to declare the establishment of Historical Note
a river basin water and related land resources commission upon re- Legislative History. For legislative 1965 U.S.Code Cons. and Adm.News,P.
quest therefor by the Council, or request addressed to the Council by history and purpose of Pub.L. 80-80& see 1021.
a State within which all or part of the basin or bnsins concerned are
located if the request by the Council or by a State (1) defines the 1962b--2. Organization of commissions-Commence-
area, river basin, or group of related river basins for which a com-
mission is requested, (2) is made in writing by tile Governor or in ment of functions; transfer of property, as-
such manner as State law may provide, or by the Council, and (3) sets, and records upon termination of coin-
is concurred in by the Council and by not less than one-half of the mission; availability of studies, data, and
States within which portions of the basin or basins concerned are otIher materials to participants
located and, in the event the Upper Colorado River Basin is involved;
by at least three of the four States of Colorado, New Mexico, Utah, (a) Each river basin commission shall organize for the perform-
and Wyoming or, in the event the Columbia River Basin is involved, ance of its functions within ninety days(after the President shall
by at least three of the four States of Idaho, Montana, Oregon, and have declared the establishment of such commission, subject to the
Washington. Such concurrences shall be in writing. availability of funds for carrying on its work. A commission shall
(b) Each such commission for an area, river basin, or group of terminate upon decision of the Council or agreement of a majority
of the States composing the commission. Upon such termination,
river basins shall, to the extent consistent with section 1962-1 of
all property, assets, and records of the commission shall thereafter
this title-
be turned over to such agencies of the United States and the par-
(1) serve as the principal agency for the coordination of ticipating States as shall be appropriate in the circumstances,
Federal, State, interstate, local and nongovernmental plans for Provided, That studies, data, and other materials useful in water and
the development of water and related land resources in its area, related land resources planning to any of the participants shall be
liver basin, or group of river basins; kept freely available to all such participants.
(2) prepare and keep up to date, to the extent practicable, a
comprehensive, coordinated, Joint plan for Federal, State, in- vice Chairman; state election; state "Presentation
terstate, local and nongovernmental development of water and (b) State members of each commission shall elect a vice chair-
related resources: Provided, That the plan shall include an man, who shall scrve also as chairman and coordinating officer of
evaluation of all reasonable alternative means of achieving opti- the State members of the commission and who shall represent the
mum development of water and related land resources of the State governments in Federal-State relations on the commission.
basin or basins, and it may be prepared in stages, including vacancies; alternates for Chairman and vice chairman
recommendations with respect to individual projects; (c) Vacancies in a commission shall not affect its powers but shall
(3) recommend long-range schedules of priorities for tile col- be filled in the same manner in which the original appointments were
lection and analysis of basic data and for investigation, plan- made: Provided, That the chairman and vice chairman may desig-
ning, and construction of projects; and nate alternates to act for them during temporary absences.
(4) foster and undertake such studies of water and related
land resources problems in its area, river basin, or group of Causesunm of members on Invexi opportunitlen for Individual views$
record
poxivion of chairman und vice chairmans
river basins as are necessary in the preparation of the plan de- I authority on Pecdnl question-
scribed in clause (2) of this subsection. (d) In the work of the commission every reasonable endeavor shall
Pub.L. 89-80, Title II, � 201, July 22, 1965, 79 Stat. 246. be made to arrive at a consensus of all members on all issues; but
failing this, full opportunity shall be afforded each member for the
� 1962b--1. Membership of commissions; appointment of presentation and report of individual views- Provided, That at any
chairman time the commission fails to act by reason of absence of consensus.
the position of the chairman, acting in behalf of the Federal mem-
Each river basin commission shall be composed of members ap- bers, and the vice chairman, acting upon instructions of tile State
pointed as follows: members, shall be set forth in the record: Provided further, That
(a) A chairman appointed by,the President who shall also serve as the chairman, in consultation with the vice chairman, shall have the
chairman and coordinating officer of the Federal members of the final authority, in the absence of an applicable bylaw adopted by the
commission and who Anil represent the Federal Government in Fed- commission or in tile absence Of a consensus, to fix tile times and
eral-State relations on the commission and who shall not, during the places for meetings, to act deadlines for the submission of annual
period of his service on the commission, hold any other. position as and other reports, to establish subcommittees, and to decide such
an officer or employee of the United States, except as a retired of- other procedural questions as may be necessary for the commission
ficer or retired civilian employee of the Federal Government; to perform its functions.
(b) One member from each Federal department or independent Pub.L. 89-80, Title 11, � 203, July 22, 1965, 79 Stat. 248.
agency determined by the President to have a substantial interest
in the work to be undertaken by the commission, such member to be Historical Note
appointed by tile head of such department or independent agency and
Legislative History. For legislative 1965 U.S.Code Consg. and Aft. News P-
to serve as the representative of such department or independent history and purpose of Pub.L, 80-80,see 1921.
agency;

� 1962b-3. Duties of commissions and retain and compensate such professional or technical serv-
Each river basin commission shall- ice firms as it deems advisable on a contract basis; any State or
(1) engage in such activities and make such studies and in- (5) arrange for the services of personnel from
vestigations as are necessary and desirable in carrying out the the United States, or any subdivision or agency thereof, or any
policy set forth in section 1902 of this title and in accomplish-' intergovernmental agency;
ing the purposes set forth in section 1962b(b) of this title; (6) make arrangements, including contracts, with any partici-
(2) submit to the Council and the Governor of each partici- pating government, except the United States or the District of
pating State a report on its work at least once each year. Such Columbia, for inclusion in a suitable retirement and employee
report shall be transmitted through the President to the Con- benefit system of such of its personnel is may not be eligible
gress. After such transmission, copies of any such report shall for or continuing in another govcrnmental retirement or em-
ployce benefit systems or otherwise provide for such coverage
be sent to the heads of such Federal, State, interstate, and inter- of its personnel;
national agencies as the President or the Governors of the par-
ticipating States may direct; (7) purchase, hire, operate, and maintain passenger motor ve-
hicles;. and
(3) submit to the Council for transmission to the President (8) incur such necessary expenses and exercise such other
and by him to the Congress, and the Governors and the legisla- powers as are consistent with and reasonably required to per-
tures of the participating States a comprehensive, coordinated,
joint plan, or any major- portion thereof or necessary revisions form its functions under this chapter.
thereof, for water and related land resources development in the Oaths
area, river basin, or group of river basins for which such corn- (b) The chairman of a river basin commission, or any member of
mission was established. Before the commission submits such such commission designated by the chairman thereof for the purpose,
a plan or major portion thereof or revision thereof to the Coun- is authorized to administer oaths when it is determined by a ma-
cil, it shall transmit the proposed plan or revision to the head jority of the commission that testimony shall be taken or evidence
of each Federal department or agency, the Governor of each received under oath.
State, and each interstate agency, from which a member of the
commission has been appointed, and to the head of the United Record public inspection
States section of any international commission if the plan, por- (c) To the extent permitted by law, all appropriate records and
tion or revision deals with a boundarywater or a river crossing papers of each river basin commission shall be made available for
a boundary, or any tributary flowing into such boundary water public inspection during ordinary office hours.
or river, over which the international commission has Jurisdic-
tion or for which it has responsibility. Each-such department Information and personnel from other federal agencies
and agency head, Governor, interstate agency, and United States (d) Upon request of the chairman of any river basin commission,
section of an international commission shall have ninety days or any member or employee of such commission designated by the
from the date of the receipt of the proposed plan, portion, or re- chairman thereof for the purpose, the head of any Federal depart-
vision to report its views, comments, and recommendations to ment or agency is authorized (1) to furnish to such commission such
the commission. The commission may modify the plan, portion, information as may be necessary for carrying out its functions and
or revision after considering the reports so submitted. The as may be available to or procurable by such department or agency,
views, comments, and recommendations submitted by each Fed- and (2) to detail to temporary duty with such commission on a reim-
eral department or agency head, Governor, interstate agency, bursable basis such personnel within his administrative jurisdiction
and United States section of an international commission shall as it may need or believe to be useful for carrying out its functions.
be transmitted to the Council with the plan, portion, or revision; each such detail to be without loss of seniority, pay, or other em-
and ployee status.
(4) submit to the Council at the time of submitting such plan,
Responsability for Personnel and funds
any recommendations, it may have for continuing the functions
of the commission and for implementing the plan, including (e) The chairman of each river basin commission shall, with the
means of keeping the plan up to date concurrence of the vice chairman, appoint the personel employed
Pub.L. 89-80, Title 11, � 204, July 22, 1965, 79 Stat. 248. by such commission, and the chairman shall, in accordance with the
general policies of such commission with respect to the work to be
Historical Note accomplished by it and the timing thcreof, be responAble for (1)
Legislative History. For legislative 1965 U.S.Code Cong. and Adm.NeWs,p. the supervision of personnel employed by such commission, (2) the

history and purpose of Pub.L 80-80. see 1921 assignment of duties and responsibilities among such personnel, and
(3) the use and expenditure of funds available to such commission.
1962b-4. Administrative provisions--Hearings, pro- Pub.L. 89-80, Title 11, � 205, July 22, 1965, 79 Stat. 249.
ceedings, evidence, reports; office space;
Historical Note
use of mails; personnel, consultants, and Legislative History. For legislative 1965 U.S.Code Cong. and Adm.News,p
professional service contracts; personnel history and purpose of Pub.L. 80-90. see 1921
from other angencies; retirement and em-
ployee benefit system for personnel without � 1962b--5. Compensation of commission members
coverage; motor vehicles; necessary ex- (a) Any member of a river basin commission appointed pursuant
penses; other powers to section 1962b-l(b) and (c) of this title shall receive no additional
compensation by virtue of his membership on the commission, but
(a) For the purpose of carrying out the provisions of this Bub- shall continue to receive, from appropriations made for the agency
chapter, each river basin commission may- from which he is appointed, the salary of his regular position when
(1) hold su'ch hearings, sit and act at such times and places, engaged in the performance of the duties vested in the commission.
take such testimony, receive such evidence, and print or other- (b) Members of a commission, appointed pursuant to section
wise reproduce and distribute so much of its proceedings and 1962b--1(c) and (d) of this title, shall each receive such compensa-
reports thereon as it may deem advisable; tion as may be provided by the States or the interstate agency respec-
(2) acquire, furnish, and equip such office space as is neces- tively, which they represent.
Bary; (c) The per annurn compensation of the chairman of each river
(3) use the United States mails in the same mannner and upon basin commission shall be determined by the President, but when
the same conditions as departments and agencies of the United employed on a full-time annual basis shall not exceed the maximum
States; scheduled rate for grade GS-18 of the Classification Act of 1949, as
(4) employ and compensate such personnel as it deems advis- amended; or when engaged in the performance of the commission's
able, including consultants, at rates not to exceed $100 per diem, duties on an intermittent basis, such compensation shall be not more
than $100 per day and shall not exceed $12,000 in any year.
Pub.L. 89-80, Title 11, � 206, July 22, 1965, 79 Stat. 250.

1962b-6. Expenses of commissions--Federal share; ap- � 1962c-1. Allotments to States: basis, population and
portionment of remainder; annual budget; land area determinations; payments to
estimates of proposed Federal appropria- States: amount,
tions; advances against delayed State ap- (a) From the sums appropriated pursuant to section 1962c of this
propriations; credit to account in the Treas- title for any fiscal year the Council shall from time to time make
allotments to the States, in accordance with its regulations, oil tile
ury basis of (1) the population, (2) the land area, (3) the need for com-
(a) Each commission shall recommend what share of its expenses prehensive water and related land resources planning programs, and
shall be borne by the Federal Government, but such share shall be (4) the financial need of the respective States. For the purposes of
subject to approval by the Council. The remainder of the commis- this section the population of the States shall be determined on the
sions expenses shall be otherwise apportioned ,is the commission basis of the latest estimates available from the Department of Com-
my determine. Each commission shall prepare a budget annually merce and the land area of the States shall be determined on the
and transmit it to the Council in the States. Estimates of proposed basis of the official records of the United States Geological Survey.
appropriations from the Federal Government Sha11 be included in (b) From each -State's allotment under this section for any fiscal
the budget estimates submitted by the Council under the Budgeting year the Council shall pay to such State an amount which is not more
and Accounting Act of 1921, as amended, and may include an amount t
for advance to a commission against State. appropriations for which ban 50 per centum of the cost of carrying out its State program ap-
delays anticipated by reason of later legislative sessions. All sums proved under section 1962c2 of this title, including the cost of train-
appropriated to or otherwise received by a commission shall be ing personnel for carrying out such program and the cost of admin-
credited to the commission's account in the Treasury of the United istering such program.
States. I Pub.L. 89-80, Title III, � 302, July 22, 1965, 79 Stat. 251.

Acceptance, reception utillzation, and disposal of appropriation Historical Note
donations, and grouts.
(b) A commission may accept for any of its purposes and func- Legislative History For legislative 1965 U.S.Code Cong and Adm News, p
tions appropriations, donations, and grants of money, equipment, history and purpose of Pul).L. 80-80, see 1921
supplies. materials, and services from any State or the United States
or any subdivision or agency thereof, or intergovernmental agency, 1962c-2. State programs; approval by Council; sub-
and may receive, utilize, and dispose of the same. mission; requirements; notice and hearing
Aecounts. of receipts. and disbursements annual audits prior to "approval
Inclusion in annual report The Council shall approve any program for comprehensive water
(c) The commission shall keep accurate accounts of all receipts and related land resources planning which is submitted by a State,
and disbursements. The accounts shall be audited at least annual- if such program-
ly in accordance with generally accepted auditing standards by inde-
pendent certified or licensed public accountants, certified or licensed (1) provides for comprehensive planning with respect to in-
by a regulatory authority of a State, and the report of the audit shall trastate or interstate water resources, or both, in such State to
be included in and become I part of the annual report of the commis- meet the needs for water and water-related activities taking into
sion. account prospective demands for all purposes served through
or affected by water and related land resources development,
Inspection of account" with adequate provision for coordination with all Federal, State,
(d)The accounts of the commission shall be open at all reasona- and local agencies, and nongovernmental entities having respon-
ble times for inspection by representatives of the jurisdictions and sibilities in affected fields;
agencies which make appropriations, donations, or grants to the com- (2) provides, where comprehensive statewide development
mission. planning is being carried on with or without assistance under
Pub. 89-80, Title II, � 207, July 22, 1965. 79 Stat. 250. section 461 of Title 40, or under the Land and Water Conserva-
tion Fund Act of 1965, for full coordination between compre-
SUBCHAPTER III.-FINANCIAL ASSISTANCE TO STATES hensive water resources planning and other statewide planning
FOR, C0MPREHENSIVE PLANINING GRANT programs and for assurances that such water resources planning
AUTHORIZATIONS will be in conformity with the general development policy in
such State;
1962c. Authorization of appropriations; coordination of (3) designates a State agency (hereinafter referred to as the
related Federal planning assistance programs; "State agency") to administer the program;
utlization of Federal agencies admenistering (4) provides that the State agency will make such reports in
programs contributing to vivater resources plan- such form and containing such information as the Council from
ning time to time reasonably requires to carry out its functions under
(a) In recognition of the need for increased participation by the this subchapter;
States in water and related land resources planning to be effective, (5) sets forth the procedure to be followed in carrying out
there are hereby authorized to be appropriated to the Council for the the State program and in administering such program; and
next fiscal year beginning after July 22, 1963, and for the nine suc- (6) provides such accounting, budgeting, and other fiscal
ceeding fiscal years thereafter, $5,000,000 in each such, year for methods and procedures as arc necessary for keeping appropri-
grants to States to assist them in developing and participating in ate accountability of the funds and for the proper and -efficient
the development of comprehensive water and related land resources administration of the program.
plans. The Council shall not disapprove any program without first giving
The Council, with the approval of the President, shall pre- reasonable notice and opportunity for hearing to the State agency
scribe such rules. establish such procedures, and make such arrange- administering such program.
ments and provisions relating to the performance of its functions Pub.L. 89-80, Title III, � 303, July 22, 1965, 79 Stat. 252.
under this subchapter, and the use of funds available therefor, as
may be neccesary in order to assure (1) coordination of the program
pose of this chapter.
Pub.L. 89-80, Title III, � 3301, July 22, 1965, 79 Stat. 251. Historical Note
References in Text. The Land and Legislative History. For legislative
Water Conservation Fund Act of 1965. history and purpose of Pub. f, 89-80,are
referred to in elause (2). is classified 1965 U.S. Code Cong. and Admi. News, p.
principally to sections 4001-4 to 4607 1921.
11 of Title 10, Conservation.

1962c-3. Noncompliance; curtailing of payments
Whenever the Council after reasonable notice and opportunity for
hearing to a State agency finds that-
(a) the program submitted by such State and approved under
section 1962c-2 of this title has been so changed that it no
longer complies with a requirement of such section; or
(b) in the administration of the program there is a failure to
comply substantially with such a requirement,
the Council shall notify such agency that no further payments will
be made to the State under this subehapter until it is sntisfied that
there will no longer be any such failure. Until the Council is so
satisfied, it shall make no further payments to such State under this
subchapter.
Pub.L 89-80, Title III: � 104, July 22, 19G5, 79 Stat. 252.

U. S. GOVERNMENT PRINTING OFFICE 1972 0 - 452-329

CGIA97 Pali.

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